Nunez v. R'BIBO

California Court of Appeal Jun 5, 1989 No. B037526Published

Before: Roth

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Holding. The court held that the doctrine of implied assumption of the risk bars the plaintiff's negligence and premises liability claims because the plaintiff, an experienced gardener, voluntarily and knowingly encountered the obvious danger of using a ladder he recognized as shaky.

Issues

Does the doctrine of implied assumption of the risk bar a claim for negligence and premises liability when a plaintiff voluntarily encounters an obvious hazard?
May a trial court disregard a declaration submitted in opposition to summary judgment when it is contradicted by the declarant's prior deposition testimony?

Disposition. affirmed

Quotations verified verbatim against the opinion

“The doctrine of reasonable implied assumption of risk is only another way of stating that the defendant’s duty of care has been reduced in proportion to the hazards attendant to the event.”

“Any danger inherent in the operation was obvious, not obscure or concealed. These undisputed facts render the assumption of risk analysis applicable to the case at bench, and bar recovery.”

Opinion

ROTH, P. J.

Francisco Nunez appeals from the summary judgment in favor of defendant Andre R’Bibo. The question is whether appellant’s claim for negligence and premises liability is negated by the doctrine of implied assumption of the risk. Concluding that the answer is “yes,” we affirm.

The summary judgment motion is used to determine the existence of triable issues of material fact. The motion should be granted if the moving party is entitled to judgment as a matter of law.

(Isaacs

Huntington Memorial Hospital

(1985) 38 Cal.3d 112, 134 [211 Cal.Rptr. 356, 695 P.2d 653].)

Appellant was a self-employed gardener. Respondent was one of his clients. In May 1986, respondent asked appellant to trim the branches of some trees in front of his house. Appellant agreed to do the job. He asked to

[562]

borrow respondent’s ladder, which was taller than his own; respondent assented.

Appellant went to respondent’s house with his cousin, Daniel Nunez, on May 26. They retrieved respondent’s ladder from the garage. Each of them noticed that the ladder was “shaky” or “loose.” They considered the ladder dangerous. Appellant leaned the ladder against the trees in order to climb onto the branches. From this vantage point at the trunk he used a chain saw to dismember the trees. On the ground, Daniel Nunez cut the branches into smaller pieces with a second chain saw. Respondent was not present when appellant and Daniel trimmed the tree on May 26.

Respondent was not entirely satisfied with the work performed; there was at least one more branch that he wanted trimmed, away from the trunk. Consequently, appellant and Daniel returned to respondent’s residence two days later, on May 28, 1986. Again, respondent was not present.

They again took respondent’s ladder from the garage, again noticing its wobbly condition. They set it up under the tree in a freestanding posture, standing on the concrete sidewalk or driveway. Appellant climbed to the top or penultimate step of the ladder, started the chain saw, and extended his arms over his head. He started cutting a length of the limb about 15 to 16 feet long.

Nunez v. R'BIBO

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ROTH, P. J.

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