Bluejacket v. Carney

ROSE, Justice

(specially concurring in result).

I concur in the result reached by the majority under LeGrande v. Misner, Wyo., 490 P.2d 1252, 1254, which I read to hold that since there was no causal connection shown between the alleged slippery walkway and the injury of the plaintiff, there can be no recovery. See Lemos v. Madden, 28 Wyo. 1, 200 P. 791; and Caillier v. City of Newcastle, Wyo., 423 P.2d 653.

There was no proof of proximate cause shown by the record in this case. Negligence is not to be presumed from the mere happening of the accident1 and the burden of proof of negligence and contributory negligence,2 and proximate cause lies with him who asserts it.3 Mere conjecture is never sufficient to establish liability on the part of a defendant for injuries claimed to have been received by a plaintiff as a result of defendant’s negligence.4

It has been said that bad appeals make bad law. This is true and for those who have a concern about precedent in the appellate decisional process, this should not be lost sight of.

This may be a classic example of the maxim. Under the facts, this case was tenuous at the outset. It now emerges from this court as a weapon aimed at the heart of the rule of Gilliland v. Steinhoefel, Wyo., 521 P.2d 1350, 1352, where we said:

“. . . summary judgment is not commonly interposed and even less frequently *499granted in negligence actions . . . ” (Citing by footnote 3 Gross v. Southern Railway Company, 5 Cir., 414 F.2d 292, 296-297; 10 Wright & Miller, Federal Practice and Procedure: Civil § 2729 (1973); 6 Moore, Federal Practice, § 57.17[4], p. 2583 (1974).

We held in Forbes Company, Inc. v. MacNeel, Wyo., 382 P.2d 56, at page 57:

“. . . It is also true that with certain exceptions issues of negligence are not ordinarily susceptible of summary adjudication. Roucher v. Traders & General Insurance Company, 5 Cir., 235 F.2d 423; Cellini v. Moss, 98 U.S.App.D.C. 114, 232 F.2d 371, 373; Aetna Insurance Company v. Cooper Wells & Company, 6 Cir., 234 F.2d 342, 344.”

The majority opinion, because of the tenuous factual aspect of this cause, surmounts the barrier that holds negligence and contributory negligence to be for the fact-finder except in the clearest cases. Borzea v. Anselmi, 71 Wyo. 348, 258 P.2d 796; Gerdom v. Gerdom, Wyo., 444 P.2d 34.

We said in Tavares v. Horstman, Wyo., 542 P.2d 1275, 1278:

“. . . Questions of negligence and contributory negligence are for the trier of fact. Fitzsimonds v. Cogswell, Wyo.1965, 405 P.2d 785, 786 ...”

Even so — I would not agree that there is no issue of fact for the fact-finder — assuming causation had been proved.

I would not agree that there has been no standard of care established from which a fact-finder could have determined the defendants to have departed. The law establishes the standard. It is, at the very least, the duty of the landlord to make the premises safe for business invitees. Loney v. Laramie Auto Co., 36 Wyo. 339, 255 P. 350. This duty exists even where there is no contractual obligation between the owner and the invitee. Loney, supra. Other and more definitive duties of care exist where there is a contractual landlord-tenant relationship. Hape v. Rath, Wyo., 492 P.2d 974.

The basic question is — was the guest ranch pathway where the plaintiff, as a paying guest, was injured, more like the path to the apartment in the Hape case; or was it like the ice in the parking lot in Watts v. Holmes, Wyo., 386 P.2d 718 — or the icy sidewalk in LeGrande, supra — or the invisible glass in the bank in Lopez v. American National Bank, Wyo., 389 P.2d 21 — or the slippery floor in Dudley v. Montgomery Ward & Co., 64 Wyo. 357, 192 P.2d 617?

I would hold that the relationship between the plaintiff-appellant and the defendants-appellees in this case more closely approximated the contractual landlord-tenant relation considered in Hape than it did the casual retail business invitee in LeGrande, Watts, Lopez, or Dudley. For this reason, I would have applied the rule of Hape instead of the rule of LeGrande, Watts, Lopez, and Dudley — as did the majority.

As I read Hape, it is the standard of the landlord’s care to keep the premises safe for invitees in some very precise respects and the plaintiff is not necessarily contrib-utorily negligent if he had knowledge of the danger and carefully attempts to cope with it.

We said in Hape, supra, at page 977:

“By virtue of the rental agreement and payment of her rental, plaintiff certainly acquired a right to enter and occupy and enjoy the apartment which she rented. The following appears in Restatement (Second), Torts 2d, § 473, p. 523 (1965) :
‘If the defendant’s negligence has made the plaintiff’s exercise of a right or privilege impossible unless he exposes himself to a risk of bodily harm, the plaintiff is not guilty of contributory negligence in so doing unless he acts unreasonably.’ ”

In this case the fact-finder could' have found that there was only one way — at least only one practical way — to gain access to the cabin. I would, therefore, have applied the rule as stated in Hape, supra *500from Pardee Co. v. Austin, 5 Cir., 58 F.2d 967, 968:

“ ‘No case has held where, as here, the landlord has furnished only one way to go, that the fact alone that occupants of the leased premises used that way, even though they knew it to be defective, would defeat recovery. On the contrary, the law is that in such case, the landlord having furnished that way to go, occupants of the premises may use it, exercising care for their safety, and that it is a question of fact whether such care was used. [Citing cases.]’ ” [Emphasis supplied]

We further said in Hape:

“The statement appearing in Robinson v. Belmont-Buckingham Holding Co., 94 Colo. 534, 31 P.2d 918, 920, expresses a rationale applicable to the sole entry in our view, wherein it is said:

“ ‘It is argued that plaintiff knew, or should have known, of the dangerous condition of the walk and that she therefore assumed the risk of using it, but we must differ. Even if she had such knowledge, it did not make her a captive in her room; she was obliged to leave the building to go to her work. * * * ’ [Emphasis supplied]
See also Schwab v. Allou Corporation, 177 Neb. 342, 128 N.W.2d 835; Roman v. King, 289 Mo. 641, 233 S.W. 161, 165, 25 A.L.R. 1263; Conroy v. Briley, Fla.App., 191 So.2d 601, 603, certiorari denied Fla., 201 So.2d 231; and Annotation 26 A.L.R.2d 610, 639-640, n. 9. It has also been said that even if lessee discovers the dangerous condition he does not necessarily assume the risk or become contributorily negligent in dealing with it. Prosser, Torts, p. 408, n. 13 (4th Ed.).”

If the judge had determined under the evidence that the path used was the sole access — or even if he had found that it was the only practical one — the doctrine of Hape would have then been applicable and there then would be sufficient issues of material fact on both the question of negligence and that of contributory negligence to preclude the granting of summary judgment.

Even so, the- summary judgment should have been granted because a slippery, dangerous pathway was not established to be the cause of plaintiff’s fall and resultant injuries. For this reason only, I concur with the result of the opinion of the majority and would, therefore, also affirm the judgment of the trial court.

. Elite Cleaners and Tailors, Inc. v. Gentry, Wyo., 510 P.2d 784, 788.

. We said in Tavares v. Horstman, Wyo., 542 P.2d 1275, 1278:

“. . . The burden of proving the negligence of another is upon him asserting it. Maxted v. Pacific Car & Foundry Co., Wyo.1974, 527 P.2d 832, 835. Contributory negligence is an affirmative defense with the burden of proof on the defendant. Anderson v. Schulz, Wyo.1974, 527 P.2d 151, 153 . . .”

. Cunningham v. Pratt, Okl., 392 P.2d 725, 728; Brown v. Foster, Colo.App.1971, 489 P.2d 346; Campbell v. Bozeman Community Hotel, Mont., 502 P.2d 1141, 1143-1144.

. LeGrande v. Misner, Wyo., 490 P.2d 1252, 1254.