(concurring in the result):
I concur in the result. However, I cannot subscribe to the basis advanced by the majority opinion as to why summary judgment was proper. The majority seems to take the position that a plaintiff who is injured in a slip and fall accident, but who does not know at the time of the accident what caused him to slip, cannot afterwards by investigation or reconstruction supply the causation. The plaintiff here sustained the severance of one of his toes. It is understandable that he did not remain at the scene to investigate the cause of his slipping. He was bleeding profusely and was in pain. He wisely concentrated on getting to a hospital where his toe might be restored. Because he did not immediately know what caused him to fall, he should not be disqualified from recovering.
He later learned that the brown spot on the lawn where he slipped had been watered earlier the same day. He filed a complaint against the defendants based on that admitted fact. Whether he can convince a jury that wet grass caused him to slip is another matter, but one cannot argue that it is not a reasonable inference to be drawn. It is significant that the defendants did not file a counter affidavit to attempt to establish that the watering actually occurred sufficiently long before the accident so that the grass would have been dry at the time the plaintiff slipped.
There was no contradiction of plaintiffs deposition by his later filed affidavit. In his deposition he stated that at the time of the slipping, he did not know why he slipped. In his affidavit, he stated that he slipped on wet grass, but this was based on information gleaned after the accident.
The majority opinion states that the plaintiff should have noted any unusual slipperiness of the grass at the time he was mowing it. That is not necessarily true since only a small spot was watered. However, even if that is true, that fact goes to plaintiffs contributory negligence but should not be decisive on causation which is the basis of the majority opinion.
I prefer to place my concurrence on the ground that the watering of a lawn by an owner in this arid state, where frequent watering is required during the month of July, could not constitute a negligent act. It is a commonplace necessary daily act. There is nothing dangerous or deceptive about it. Here there was a brown spot on a slope which required extra watering and care, as plaintiff knew. I do not think that a reasonable man could find such watering to be negligent even though the owner had knowledge that another might come along soon to mow it.