Webster v. Sill, 675 P.2d 1170

Webster v. Sill

675 P.2d 1170

Utah

1983

Check Treatment

*1 accomplish m could not Utah. Mr. Frame following discharge Army, from the in spent Philadelphia they some time married directly and came to Utah. Academy University dispute Natural While the researching appel- Sciences did lants’ claim voting filing degree. materials cheetahs for his Ph.D income tax returns, proffered no evidence that since During they the months in two of lived appellants arrived in they this state in 1971 cottage seaside on the in vacation coastline residency have had a elsewhere. Nor did it Jersey. New proffer any evidence of other residency returning to Before Utah to attend 1979, from March 1978 to March which is classes, they purchased an automobile period the crucial here under examination. they registered drove here and here Rule I.E. University authorizes the 1975, upon arrival. From 1971 to Mr. deny residency status to a student who Frame had Utah driver’s license which registers state, to vote registers out of expired appellants while were in Africa. state, motor vehicle out of obtains an out temporary therefore obtained New of state signifi- driver’s license or receives in Jersey driver’s license order to drive the support. cant out of state appellants Jersey to Utah. The New li- automobile did none of the except above that Mr. 23, 1978, expired cense on October at which Frame temporary obtained a two-month permanent acquired time he Utah driver’s Jersey New driver’s license in order to license. newly purchased drive his automobile to appellants regis- claimed to have Utah. 1971, tered to vote in Utah in 1978 and very minimum, appellants At the made a 1980 and to have voted absentee ballot showing they substantial meet most of 1976, person in either voted in the indicia of residency listed in Rule I.E. They register in 1978. did not to vote nor I would summary judgment reverse the they any did vote in state other than Utah and remand for a trial. from 1971 to 1979. Appellants continuously maintained a DURHAM, J., in dissenting concurs Logan, in bank account Utah bank from HOWE, opinion of present addition, 1971 to they time. claimed to filed have Utah State income tax (They

returns for 1978 and 1979. required

were not to file for the other

years income). because of insufficient Ex-

cept Africa, they while they were have used no other address than their address at WEBSTER, John Plaintiff and Utah University They State since 1971. Appellant, university likewise attended no other dur- ing period of time. Both of them Davis, Diana SILL and Mike Defendants deposed they came to Utah Respondents. with the primarily intent to live here be- cause of this state’s wilderness areas. As No. 18415. opinion, heretofore noted in this there was Supreme Court of Utah. no they any evidence ties to Dec. place. other deposed Mr. Frame had not parents lived with his nor been

dependent on them since 1964. He had

obtained a degree B.S. University

of Alaska and had worked that state as oceanographer until he was drafted into Army. While Army stationed with the California, Frame; and, he met Mrs.

H71 Kinateder, City, for Douglas Salt Lake appellant. and Swan, City, Allen for de- M. Salt Lake respondents. fendants and STEWART, Justice: Webster, plaintiff, appeals a John summary judgment granted the defend- agree- ants. entered into an defendant, landlord, Di- the ment with his Sill, whereby he would allowed ana monthly rent reduction for $25 apart- the mowing the lawn around manual the use of a ment. Sill offered mower, in need of push but because was power mow- repair, plaintiff obtained a the mower er from father and used that his mishap prior to or times without three four action. giving rise to this the accident again the July came to mowed lawn. When he the section, previous- inclined one which he along the horizontally ly by going mowed began to mow slope, face of the second slope in fashion. On his a vertical his slope, slipped, caught time down in- casing, mower foot under the mower severed jured when the blade big toe. learned

One later week agent had watered Sill her day of the accident. Subsequently, he had been day watered the Sill, alleging by watering filed this suit the accident. On the plaintiff’s basis of the lawn, testimony, had created a Sill moved for sum- mary judgment on ground condition on the lawn plaintiff’s own admission established that grant- caused his accident. The trial court there genuine was no issue of fact as to summary judgment against plaintiff. ed whether a dangerous condition existed *3 major purpose A summary of which caused the accident. judgment parties pierce is to allow the to deposition, plaintiff After the filed an pleadings to determine whether there is affidavit that impliedly, if not directly, con- genuine genuine a issue of fact. To raise a tradicted a part critical of deposition. fact, issue of an affidavit must do more argues Plaintiff appeal that his affidavit opinions than reflect the affiant’s and con created an issue of fact as to the element clusions. v. Rocky Walker Mountain Rec of causation. The affidavit states: reation, 274, 29 Utah 2d 508 P.2d 538 That on or day about the 17th July, of (1973). The affidavit spe must “set forth 1980, MIKE DAVIS or some per- other showing cific facts” there genuine is a is acting son agent as the of DIANA SILL 56(e). sue for trial. Utah R.Civ.P. upon intruded the responsibility duty mere assertion that an issue of fact exists plaintiff of the and without his knowl- proper evidentiary without a foundation to edge-sprinkled part of the lawn so that support that assertion is pre insufficient to the lawn became slippery wet and granting clude the summary judgment of a persons said negligently left the lawn in Leininger motion. v. Roger Mfg., Stearns wet, a slippery, unsafe condition for 37, (1965); 17 Utah 2d 404 P.2d 33 Foster v. mowing, resulted, negligence Steed, 435, (1967). 19 Utah 2d 432 P.2d 60 day 1980, the 17th July, of injury 56(e) Under Rule of the Utah Rules of to the Procedure, summary Civil judgment shall slipped wet, slippery on the grass .... be rendered if the record demonstrates that ruling In aon motion for summa genuine “there is no issue as to materi- ry judgment, consider, may trial court al fact moving and that the party is entitled together filed, with the affidavits “the judgment to as a matter of law.” Doubts pleadings, depositions, answers to interrog concerning uncertainties issues of fact atories, and admissions on file.” Utah properly presented, or the nature of infer- 56(c). single R.Civ.P. A sworn statement is facts, ences to be drawn from the are to be sufficient to create an issue of fact. light construed in a party favorable to the Barnes Co. v. Sohio Natural Resources opposing summary judgment. Bowen Co., Utah, 56, (1981). 627 P.2d Clearly, 59 Utah, v. Riverton City, 656 P.2d 434 it is not for a weigh court to the evidence (1982); Utah, Durham Margetts, v. 571 or credibility. assess Id. (1977). P.2d 1332 negligence cases, general As matter of evidence summary judgment appropriate only is law, deposition generally is a more relia the most clear instances. FMA Accept- ble ascertaining means of the truth than an Co., ance Co. v. Leatherby Insurance affidavit, since deponent subject is Utah, (1979). 594 P.2d 1332 cross-examination and an affiant is not. 6 deposition, testified that Moore, Wicker, Taggart W. & J. Moore’s mow, when he started to he was unaware § Federal Practice at 56-277 56.11[4] grass damp. was wet or When (1983). mean, however, That does not asked what injury responded: summary judgment proceedings, depo “I couldn’t slipped.” understand how I greater sition should weight be accorded first grass concluded that the was wet and than an affidavit. purpose of summa slippery only spoken after he had to Mike ry judgment weigh is not to the evidence. Sill and Mike Davis seven or eight days party But when a position takes a clear in a after the accident. They told the deposition, that is not modified on cross-ex-

H73 an was wet or at the time of animation, may not thereafter raise plaintiff’s affi- According which the accident. his own affidavit issue of fact davit, slipped he can the idea that he because the deposition, unless contradicts his discrepancy. was wet first him of the occurred to when provide explanation an defendant, Davis, by the Ill.App.3d 332 he was told Mike Ashley, 29 Smith days (1975); later after the accident Gaboury v. Ireland several N.E.2d 32 Ind., Brethren, Inc., day had been of the the lawn watered Road Grace Furthermore, (1983); Ciba-Geigy accident. the affidavit failed Mays v. N.E.2d 1310 (1983); day indicate the time 661 P.2d 348 was Corp., 233 Kan. long Equipment watered or how it had been watered. v. Automated Radobenko (9th Cir.1975); Moreover, part appar- Perma the affidavit 520 F.2d Corp., hearsay Singer ently based on inadmissible Development & Co. Research Thus, (2d Cir.1969). contrary by Mike A statement Sill. Webster’s Co., F.2d 572 theory of a utility of summa- condition arises undermine the rule would *4 screening speculation out what others told ry as a means from based on judgment for speculation contrary that Ireland Webster and was Gaboury of fact. v. sham issues Brethren, Inc., deposition. supra; Mays to his Road Grace Ciba-Geigy Corp., supra. facts, these affida plaintiff’s the explain discrepan party may apparent a does not the moving The rule that vit deposition. grass the If the cy own which con with rely upon his affidavit not shortly mowing, adminis watered the deposition his must be been before tradicts any knowledge certainly would have noted plaintiff It is tered with care. common slipperiness grass at them unusual of the the witnesses sometimes misstate that mowing it, deposition selves, the he was his may properly not understand time but slippery an indicate that the was question propounded, give equivocal or did not rely slipperiness grass was may that a not or that of the the party The rule swers. affi plaintiff’s the accident. The subsequent affidavit that contradicts cause of on a discrepan wholly explain failed to the create of fact on davit deposition his to an issue deposition the and the affidavit. summary cy does not between judgment a for motion likeli apply there is some substantial when Warren, Utah, relies on Webster Hall testimony was in the hood that (1981), proposition 848 for the 632 P.2d deposi that in the appear error for reasons law, judg- that, summary matter as a state party-deponent is able to tion or the against him. erroneously granted ment was adequate explanation for affidavit an his re- misplaced. In Hall we reliance is His deposition. contradictory answer in his the summary in favor of judgment versed Co., Ill.App.3d 52 v. Yellow Cab See Borus upon plaintiff’s allegation that landlord (1977). 277 Ill.Dec. N.E.2d gases from a defective asphyxiating leaked him. We reiter- case, injured furnace and plaintiff testified floor In the instant the principle common that land- the issue of ated the law deposition directly on injuries held may un- liable for His answer was clear and lord causation.1 created, by dangerous the conditions which equivocal he did notice that that not answer, you during Q. are following exchange place So if I understand that the took The assuming Sill from the that Mr. Mike or fact deposition: you Davis that that section of Mr. Mike told you trying Q. to what ob- I’m find out by one of them or lawn had been watered you slope to that has caused served on knowledge, their is what to someone caused allegation complaint your an make you slip? to wet, grass. you slipped You didn’t I how I A. Yes. I said couldn't understand you before and didn’t observe observe it said, slip?” they you slipped. did And "Where you get did that notion? after. Where pointed out where and he said And I get It was did I that notion? A. Where there. had watered my Mike Davis conversation with of time does not indicate the amount The record Sill. Mike accident, watering or the the the between watering. duration of aware, majority opinion or he was and which he The of which states that would reasonably have foreseen ex- should should noted have unusual an pose to unreasonable risk of slipperiness others of the at the time he was at 850. it was mowing harm. 632 P.2d Hall it. That not necessarily is true existed, clear condition only that a spot since small was watered. How- of the ever, true, and that the landlord aware even if that is goes fact to danger. plaintiffs contributory negligence but should not be decisive on causation which is respondents. Affirmed. to Costs majority opinion. the basis of the HALL, C.J., DURHAM, and OAKS and place I prefer my concurrence on the JJ., concur. ground that watering of a by lawn state, owner this arid where frequent HOWE, result): (concurring in Justice watering required during is month However, I I concur in the result. can- July, could not a negligent constitute act. not subscribe to basis advanced It a commonplace necessary daily is act. why summary majority opinion judg- as to is nothing dangerous There deceptive majority seems proper. ment was it. about Here spot there was a brown position take that a who is slope required watering extra accident, injured and fall but who slip in a care, as I do not knew. think that does not at the time of the accident know a reasonable man find could such slip, what caused him cannot afterwards negligent though to be even the owner had by investigation supply or reconstruction knowledge might along that another come here sustained causation. *5 soon to mow it. the severance one of his toes. It is understandable that he did not remain at investigate

the scene to the cause of his

slipping. bleeding profusely He was in pain. wisely He concentrated

getting hospital might to a where his toe

restored. he did immediately Because not fall,

know him what caused he should DRAPER BANK AND TRUST COMPA disqualified recovering. not be NY, Appellant, Plaintiff and spot that the later learned brown slipped he where been Chevrolet, Ed LAWSON and Ed Lawson day. watered earlier same He filed a Inc., Defendants. complaint against the defendants based on that admitted fact. Whether he can con- GENERAL MOTORS ACCEPTANCE jury vince wet him to CORPORATION, Corpora a New York matter, slip is another but one cannot ar- tion, Plaintiff in Intervention and Re gue that it is not reasonable inference spondent, significant be drawn. It is defend- ants did not file counter to at- affidavit DRAPER BANK AND TRUST COMPA tempt that the establish actual- NY, Ed Lawson and Ed Lawson Chev ly sufficiently long occurred before the ac- rolet, Inc., Defendants Intervention cident so would have been Appellant. dry at the time the slipped. No. 18595. There plaintiffs was no contradiction of deposition by his later filed affidavit. Supreme of Utah. Court stated he that at the time of Dec. slipping, why he did not know slipped. affidavit, In his stated

slipped grass, on wet but this was based on

information gleaned after the accident.