July 25, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-2344
RICHARD L. COLANTUONI AND CAROL L. COLANTUONI,
Plaintiffs, Appellants,
v.
ALFRED CALCAGNI & SONS, INC., ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Stahl, Circuit Judge.
William E. McKeon, Jr., with whom Kevin M. Cain was on brief for
appellants.
Michael G. Sarli for appellee Alfred Calcagni & Son, Inc.
John F. Kelleher for appellee R.D. Werner Co., Inc.
Peter J. Comerford for appellee Frank N. Gustafson & Sons, Inc.
COFFIN, Senior Circuit Judge. Plaintiffs Richard and Carol
Colantuoni brought this action against four defendants to recover
for injuries sustained when Richard Colantuoni fell from a ladder
at a construction site at Rhode Island College. The district
court rejected plaintiffs' claims of liability and granted
summary judgment for three of the defendants. After reviewing
the record, we affirm.
I. Factual Background
On the morning of April 25, 1989, Richard Colantuoni, a
sheet metal worker, was using the upper section of an extension
ladder (the "fly section") to tie in a sheet metal duct to an
overhead roof fan at his worksite when he fell from the ladder,
sustaining serious injury. He brought this action, charging that
his accident was caused by the negligence of Alfred Calcagni &
Son, Inc., the general contractor at the job site; R.D. Werner,
Inc., the alleged manufacturer of the ladder; Frank N. Gustafson
& Sons, Inc., a subcontractor at the construction site; and
Design Erectors, Inc., a subcontractor to Gustafson. He also
claimed that Werner was liable for damages based on two
additional theories of liability: strict liability for
manufacture of a defective product; and breach of implied
warranty.
The district court granted summary judgment for Calcagni,
Gustafson, and Werner, and entered a default judgment against
Design Erectors. The court held that the doctrine of assumption
of the risk barred recovery for plaintiffs' negligence and
products liability claims. The court rejected plaintiffs' claim
for breach of implied warranty, finding that there was no
evidence that the ladder was not fit for its intended purpose, or
failed to meet standards of implied fitness or merchantability,
and that there was nothing to indicate that there was anything
specifically wrong with the ladder. The court also found that,
in waiting until the eve of the statute of limitations to serve
the defendants, plaintiffs failed to comply with the notice
requirement of R.I. Gen. Laws 6A-2-607 (requiring reasonable
notice to seller in breach of warranty action). Finally, the
court held that except for the ladder manufacturer, none of the
defendants owed a duty to Colantuoni, and so these defendants
could not be liable based on negligence. Plaintiffs appeal from
this judgment.
Our review of an order granting summary judgment is
plenary. Pagano v. Frank, 983 F.2d 343, 347 (1st Cir. 1993).
II. Negligence and Strict Liability Claims
Plaintiff advances several claims of error on appeal,
arguing first that the district court erred in granting
defendants' summary judgment motions based on assumption of the
risk, because a general issue of fact existed as to whether
plaintiff knowingly and voluntarily assumed the risk of his
injury. We agree with the district court that the record
unequivocally shows that plaintiff assumed the risk of injury.
In Rhode Island, the doctrine of assumption of the risk operates
as a complete bar to recovery for actions based on negligence and
-3-
strict liability. We therefore affirm the district court's grant
of summary judgment for defendants on these claims.
A. Assumption of the Risk in Rhode Island
In Rhode Island, the doctrine of assumption of the risk is
an affirmative defense which operates to absolve a defendant of
liability for creating a risk of harm to a plaintiff. Kennedy v.
Providence Hockey Club, Inc., 376 A.2d 329, 333 (1977). To
establish this defense, a defendant must show that plaintiff knew
of the existence of a danger, appreciated its unreasonable
character, and then voluntarily exposed himself to it. Drew v.
Wall, 495 A.2d 229, 231 (R.I. 1985). The standard for
determining whether a plaintiff knew of and voluntarily
encountered a risk is subjective, and is keyed to what the
particular plaintiff in fact saw, knew, understood and
appreciated. Kennedy, 376 A.2d at 332; Drew, 495 A.2d at 231-32.
While the question of whether a plaintiff assumed the risk is
usually a question for the trier of fact to decide, if the facts
suggest only one reasonable inference, the issue becomes one of
law, and may be decided by the trial court on summary judgment.
Id. at 231; Rickey v. Boden, 421 A.2d 539, 543 (R.I. 1980).
Traditionally, assumption of the risk existed as a defense
to negligence actions, operating to terminate the duty defendant
owed to plaintiff. Kennedy, 376 A.2d at 332-333. In a diversity
case interpreting Rhode Island law, we held that assumption of
the risk is a viable defense to products liability cases.
Turcotte v. Ford Motor Co., 494 F.2d 173, 183 (1st Cir. 1974).
-4-
The Rhode Island Supreme Court later endorsed this view. Mignone
v. Fieldcrest Mills, 556 A.2d 35, 41 (R.I. 1989) (citing
Turcotte).
B. Application
Viewing the record, as we must, in the light most favorable
to plaintiffs, Pagano, 983 F.2d at 347, we nevertheless conclude
that the only reasonable inference to draw from the record before
us is that plaintiff assumed the risk of his injury. Colantuoni
was injured when he fell from a ladder while "tying in" a sheet
metal duct to an overhead roof fan. This was a standard
procedure that usually took no longer than seven to eight minutes
to complete. Plaintiff had worked in the sheet metal trade for
twenty-four years, and had used both step ladders and extension
ladders as part of his work and at home. In his position as a
sheet metal worker, plaintiff generally did duct work on heating,
ventilation and air conditioning systems, including the overhead
installation of these systems.
At the time of his accident, Colantuoni was the job foreman
for Shane Engineering. As foreman, he was responsible for making
sure the job proceeded on schedule and was done correctly, and
for ordering materials for the job. Among other things, he knew
that he would need ladders, staging, or some other means of
reaching the ceiling and above ceiling spaces to install the duct
work at the job site. Shane Engineering had a hydraulic lift
that could be used to access hard-to-reach areas, but the lift
could not be used to reach the ceiling space because it would not
-5-
fit into the room where plaintiff was working. It was
plaintiff's decision as foreman to figure out an alternative
method of reaching the ceiling.
On the date of the accident, plaintiff's coworker David
Solari found the top half of an extension ladder for plaintiff to
use while installing the duct work. Plaintiff knew that he was
using the fly section of an extension ladder, and he knew that
the standard safety instructions affixed to extension ladders
included warnings not to take such ladders apart. There is no
evidence in the record as to who separated the ladder.
In his deposition, plaintiff acknowledged that he
appreciated the risks inherent in using the ladder in an altered
condition at the time of his fall. He noted, for example, that
the ladder did not have rubber feet on the bottom, which posed an
even greater danger of slipping than ladders with feet.
Nonetheless, he felt comfortable using the ladder without tying
it to a stationary object, or having a fellow worker put his
weight on the bottom of the ladder to improve its stability, and
despite the presence of other ladders at the job site. Plaintiff
checked the ladder's stability by looking at it and testing it
with his hands, and climbing up a few rungs and bouncing on it,
to see if it would slip.
Colantuoni suggests that the following facts support his
claim that he did not assume the risk of his injury: he had never
seen someone slip and fall while using the fly section of an
extension ladder, he had not been warned by defendants of the
-6-
possibility of slipping, and he had never used the particular
ladder at issue. He likens his case to that of the plaintiff in
Handrigan v. Apex Warwick, Inc., 275 A.2d 262 (R.I. 1971), in
which the Rhode Island Supreme Court upheld a jury verdict for a
plaintiff who was injured when he fell from an extension ladder
that had been set up by another individual. Like the plaintiff
in Handrigan, plaintiff claims, he neither knew of the danger nor
proceeded deliberately to encounter it.
We disagree. First, Handrigran is entirely inapposite to
this case, having been an action for breach of implied warranty.
The challenges were to instructions as to the fitness for
intended use of a ladder, abnormal use, and inclusion of
plaintiff within the intended class of beneficiaries of the
relevant statute. Assumption of the risk was not an issue.
Moreover, nothing in Handrigan suggests that plaintiff, helping a
friend paint his house, had any familiarity or prior experience
with extension ladders, or with the risks attendant to their use.
Colantuoni, by contrast, was standing on the fly section of an
extension ladder, and knew at the time of his accident that using
the ladder in that manner presented a risk of slipping. He had
long years of experience in the construction trades, and had used
ladders as part of his work.
Nor does the claimed absence of evidence of a warningaffect
the assumption of the risk defense. As plaintiff himself notes,
"[A] person does not assume the risk of a hidden or undisclosed
danger, not of common knowledge, in the absence of warning or
-7-
personal knowledge." James v. Rhode Island Auditorium, 199 A.
293, 295 (R.I. 1938). Here, however, plaintiff's own testimony
is sufficient evidence of his personal knowledge of the danger to
support the defense of assumption of the risk. Finally, the fact
that Colantuoni had never seen an accident such as his is
irrelevant, as it is sufficient that he knew of the potential for
that type of accident to occur. Rickey, 421 A.2d at 543 (R.I.
1980). Compare Soucy v. Martin, 402 A.2d 1167 (R.I. 1979)
(plaintiff who had never loaded or carried steel beams and knew
nothing about them neither appreciated nor voluntarily assumed
the risk involved in moving the beams); Rhode Island Auditorium,
199 A.2d at 295-98 (plaintiff attending her first hockey game and
who had no prior knowledge of the risk of being struck by a
flying puck did not assume the risk of this injury).
Plaintiff also contends that summary judgment on the
assumption of the risk defense was improper because he presented
a sworn affidavit in which he stated that he had no knowledge at
the time of the accident of the ladder's propensity to slip.
This evidence, submitted after defendants had filed their motions
for summary judgment, stands in direct contradiction to his
deposition testimony.
When an interested witness has given clear answers to
unambiguous questions, he cannot create a conflict and resist
summary judgment with an affidavit that is clearly contradictory,
but does not give a satisfactory explanation of why the testimony
is changed. 10A C. Wright, A. Miller & M. Kane, Federal Practice
-8-
and Procedure 2726, at 30-31 (2d ed. Supp. 1994). See Slowiak
v. Land O'Lakes, Inc., 987 F.2d 1293, 1297 (7th Cir. 1993);
Trans-Orient Marine v. Star Trading & Marine, 925 F.2d 566, 572-
73 (2d Cir. 1991); Davidson & Jones Dev. v. Elmore Dev., 921 F.2d
1343, 1352 (6th Cir. 1991).
In this case, Colantuoni's statement in his affidavit that
"[a]t all times that I had used this ladder, I believed it was
safe to use it and I had no knowledge, at that time, of its
propensity to slip" clearly contradicts his prior deposition
testimony that he realized the ladder might slip. The affidavit
does not discuss any earlier confusion at his deposition
testimony. His only explanation for the contradiction between
the supplemental affidavit and deposition testimony is that the
former describes his state of mind at the time of the accident,
while the latter describes his state of mind at the time of his
deposition. This is clearly not viable. The deposition
testimony clearly referred to the time of the accident. His
attorney was present at the deposition, and had the opportunity
to clarify any incorrect impressions. Moreover, we think it
significant that the affidavit was offered only after defendants
had filed motions for summary judgment. In these circumstances,
we are persuaded that plaintiff's affidavit should be disregarded
in considering the propriety of summary judgment. See Slowiak,
987 F.2d at 1297; Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.
1986).
-9-
In sum, we find that on the record before us, the only
reasonable inference to draw is that plaintiff knew of the
possibility that the fly part of the extension ladder might slip
when he was standing on it, appreciated the prospect that this
might happen, and nonetheless chose to use this ladder to tie in
the sheet metal duct to the overhead roof fan. We therefore find
that, as a matter of law, he assumed the risk of injury, thereby
negating any claims of negligence or products liability.
III. Breach of Implied Warranty Claim
The plaintiff also claimed that Werner was liable for a
breach of implied warranty.1 As a threshold element of tort
liability for personal injuries under theories of breach of
implied warranty of merchantability and fitness for a particular
purpose, a plaintiff must prove that the defendant sold a
defective product which posed a threat of injury to potential
consumers. Scittarelli v. Providence Gas Co., 415 A.2d 1040,
1046 (R.I. 1980). Plaintiff has failed to produce any evidence
that the ladder was defective, and therefore dangerous.
Werner presented evidence that the extension ladder at
issue was designed so as to inhibit someone from disassembling it
and using the top half separately. Specifically, Werner
1It is unclear whether plaintiffs' warranty claim is
premised on R.I. Gen. Laws 6A-2-314, which covers the implied
warranty of merchantability, or R.I. Gen. Laws 6A-2-315, which
covers the implied warranty of fitness for particular purpose, as
plaintiff's complaint alleges merely a claim for "breach of
implied warranty," and plaintiff fails to elaborate on this claim
elsewhere. For the purposes of the case before us, we treat the
complaint as encompassing a claim under both sections.
-10-
submitted engineering drawings depicting the guide grooves which
were riveted to the fly section of the ladder between the first
and second rungs, and the end caps which were attached to the
rails at the bottom of the fly section and the top of the base
section. This construction meant that the ladder could only be
taken apart by removing the rivets. There was no mechanism to
enable the ladder to be separated. In addition, Werner's
affidavit, prepared by Werner's vice president in charge of
engineering, described the engineering drawings, and stated that
the ladder "was manufactured in such a way that the guide grooves
on the fly section could not pass through the end caps on the
base section, thereby making the ladder nonseparable." Werner
also presented evidence of the safety instructions attached to
both the base and fly sections of the ladder, which stated that
the fly section of the ladder "should not be used as a single
ladder unless equipped with feet, ice picks or equivalent."
Plaintiff failed to rebut this evidence with any proof that
the ladder was easily disassembled, or in any other way
defective, and therefore not "merchantable" as a nonseparable
extension ladder at the time of sale, nor fit for the particular
purpose for which it was used. Instead, plaintiff simply
suggests that the fact that Werner gave instructions regarding
the use of the fly section of the ladder as a single ladder is
proof that the ladder is warrantied for use in a separated state.
The evidence, however, is that the ladder was constructed in such
a way to prevent it from being taken apart and used in separate
-11-
pieces. The fact that Werner recognized the possibility of
misuse and minimized the danger from such use by providing a
warning in no way proves that the ladder was warrantied to be
used in such a manner.
The party resisting summary judgment "may not rest upon the
mere allegations or denials of the . . . pleading, but . . . must
set forth specific facts showing that there is a genuine issue
for trial." Fed. R. Civ. P. 56(e). There is no trialworthy
issue unless there is sufficient competent evidence to enable a
finding favorable to the opposing party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248-49 (1986). Colantuoni has failed
to produce any such evidence. We therefore conclude that the
district court was correct in granting defendant Werner's motion
for summary judgment on the breach of implied warranty claim.
The decision of the district court is therefore AFFIRMED.
-12-