275 F.2d 169 | D.C. Cir. | 1960
Lead Opinion
This is an appeal from a summary judgment entered in the District Court in an action for personal injuries. After the pleadings had been filed and the deposition of plaintiff (appellant) taken, motion for summary judgment was filed by defendant (appellee) and granted. The facts are not seriously in dispute. Briefly stated, they are as follows:
In February 1957, plaintiff was employed as an assistant superintendent by John McShain, Inc., the principal contractor,
On the day of the accident, the defendant, through its agent, was operating a motor-driven lift, which was used to carry bricks for the use of defendant to the various floors of the building then under construction.
Plaintiff testified that he had attended a safety meeting at which instructions were given that passengers were not to ride the material lifts on the job site. It was, in fact, one of plaintiff’s duties to see that this regulation was carried out. Upon questioning, he testified:
“Q. But if there was anything there being done that was contrary to the regulations for safety, as put out by John McShain Company, you would certainly do something about it?
“A. That is right.”
He further testified:
“Q. And you knew that at the time you got in the lift there at B wing?
“A. Not at the time, I didn’t even think about it. I wanted to go to the roof.
“Q. But you knew that passengers were not allowed to ride the material lifts?
“A. I knew it, yes.”
Plaintiff was an experienced construction supervisor. He had been employed by McShain for approximately four years, and had been in construction work for about sixteen years. He stated specifically that he knew it was against regulations to ride the lift and that this was a known fact to all workers on any job.
We think the judgment of the District Court must be affirmed for two reasons:
First, we believe that at most plaintiff was a bare licensee, if not a trespasser. In general, the rule states that a trespasser is “a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor’s consent or otherwise.” Restatement, Torts § 329. A. bare licensee is one who is on property of another, not by invitation but by mere acquiescence. As regards a claim for negligence, however, both a trespasser and a bare licensee must take the premises as he finds them, and each may re
Plaintiff knew that the operator of the lift was not authorized to allow the lift to be used by unauthorized persons, as plaintiff was; he knew that the operator was without authority to allow him to ride thereon, and he knew that safety regulations laid down by his employer, McShain, were being violated by his own actions. Even assuming that the acquiescence of the operator of the lift converted plaintiff from a trespasser into the position of a bare licensee, his claim must fail.
Even if plaintiff were a licensee by invitation, and we think he was not, he was obliged to use the instrumentality as it existed. Of course, if there is superadded some negligence on the part of the person granting the permission, a different result would ensue but here there is absolutely nothing to indicate that any further act was done by the defendant to endanger the safety of the person using the lift. Consequently, no liability could attach even if plaintiff were a licensee by invitation.
Secondly, it is quite clear that the assumption of risk doctrine precludes a recovery by plaintiff. While that doctrine is sometimes held to apply only to cases arising out of the master-and-servant relationship, or at least to cases involving a contract relationship, it is now quite generally held that the doctrine applies to one who deliberately exposes himself to danger. Thus the general law is stated in Le Vonas v. Acme Paper Board Co., 1944, 184 Md. 16, 23, 40 A.2d 43, 46:
“When a person undertakes work which exposes him to obvious dangers which he knew or had the opportunity to know, he must be considered as having assumed such risks, and he cannot recover for any injuries resulting therefrom.”
Complaint is made that the wheels of the buggy were not blocked and the brakes thereof not applied; but, as plaintiff was not only on the lift but also on the seat of the buggy itself, and was the only person there, these facts were or should have been perfectly obvious to him. Here, certainly, plaintiff deliberately incurred the risk incident to the use of the lift — an instrumentality which he knew to be dangerous. From his own experience in construction work and from the fact that specific instructions had been issued against such use of the lift, he must have been aware of the danger involved and assumed the risk thereof.
It follows that the judgment must be and is
Affirmed.
. It is not disputed that plaintiff has a claim against John McShain, Inc. under the Workmen’s Compensation Law, Code Md.1957, art. 101, § 1 et seq.
. The accident having occurred in Maryland, the case is governed by the law of that state.
. Carroll v. Spencer, 1954, 204 Md. 387, 104 A.2d 628, 44 A.L.K.2d 1247.
. '“Acquiescence is not invitation, and, at most, changes status of trespasser to that of bare licensee to -whom property owner owes no greater duty than to a trespasser.” 204 Md., at page 393, 104 A. 2d, at page 630.
Concurrence Opinion
(concurring) .
I agree that plaintiff-appellant is barred by assumption of risk. I wish, however, to draw attention to another aspect of the case. There is an increasing tendency, it would seem, for workmen who have been injured and who have received (or have been offered) Workmen’s Compensation benefits by their own employers to bring suit for damages against other employers of men working on the same job site, claiming that the negligence of these others produced the plaintiff’s injuries. Such suits are brought under the claimed authority of statutory provisions for recovery against “third-party” tortfeasors. Whether other employers on the same job site are third parties within the meaning of a particular Workmen’s Compensation statute is a question on which courts have differed. See Larson,
