Jones v. Forburger

California Court of Appeal Jan 24, 1967 No. Civ. 8160Published

Before: Finley

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Holding. The court held that summary judgment in favor of the contractor and subcontractor was proper because the plaintiff failed to raise a triable issue of fact regarding the defendants' liability for a pre-existing hazard they did not create and over which they relinquished control upon completion of their work.

Issues

Whether the defendants were entitled to summary judgment based on undisputed facts in their affidavits and the plaintiff's deposition.
Whether a contractor remains liable for a hazard on property after the work has been completed and accepted by the owner when the contractor did not create the hazard.

Disposition. affirmed

Quotations verified verbatim against the opinion

“There appears from the record to be no triable issue of fact as to respondents. The motion for summary judgment was properly granted.”

“Appellant has cited no authority for the proposition that when a contractor enters upon property for purposes of doing his job he thereupon becomes responsible then and later for a hazard that he played no part in creating”

FINLEY, J. pro tem.

This is an appeal from a summary judgment in favor of two defendants, a contractor and a subcontractor, in a personal injury action.

Appellant, a delivery man for Quality Cleaners, brought this action against defendants Freeman, as property owners, charging them with negligence in permitting the existence of an uncovered water meter box upon their property into which the appellant, as a business invitee, stepped, fell and injured himself.

[66]

Defendants Freeman answered and cross-complained against R. W. Forburger and Sim J. Harris Company, Inc., the general contractor and subcontractor who made alterations and repairs to the Freeman residence including certain paving. Plaintiff thereupon amended his complaint to name Forburger and Harris as defendants, replacing Does One to Five. Forburger and Harris moved successfully for summary judgment on their answer to the complaint. Forburger’s motion was based upon his affidavit and the deposition of Gordon L. Jones, plaintiff; the Harris motion upon the declaration of John S. Rhoades, as attorney of record for Harris and the deposition of plaintiff Jones.

The provision for summary judgment under Code of Civil Procedure, section 437c is not intended as a method for trying issues of fact. The purpose is to determine whether any issues of fact exist.

(Coyne

Krempels,

36 Cal.2d 257 [223 P.2d 244].) A summary judgment is improperly granted where any triable issue of fact is presented.

(Simmons

Civil Service Emp. Ins. Co.,

57 Cal.2d 381 [19 Cal.Rptr. 662, 369 P.2d 262].) The moving party must support a motion for summary judgment by proper declarations covering every element necessary to sustain a judgment in his favor even in the absence of counteraffidavits or statements.

(Family Service Agency of Santa Barbara

Jones v. Forburger

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