Professional Documents
Culture Documents
______________________
_____________
appellants.
Michael G. Sarli for appellee Alfred Calcagni & Son, Inc.
________________
John F. Kelleher for appellee R.D. Werner Co., Inc.
________________
Peter J. Comerford for appellee Frank N. Gustafson & Sons, Inc.
__________________
____________________
____________________
construction site
rejected
at Rhode Island
plaintiffs'
claims
three of the
of
College.
The district
liability
and
defendants.
After
granted
reviewing
the morning
Factual Background
__________________
of April 25,
1989, Richard
Colantuoni, a
of an extension
ladder (the
"fly section") to
Inc.,
&
to an
the ladder,
was caused by
tie in a
Calcagni &
Sons, Inc.,
Design
subcontractor at
Erectors, Inc.,
claimed
that
additional
Werner
theories
manufacture
of
the
construction site;
a subcontractor to
was
liable
of
liability:
defective
for
Gustafson.
damages
strict
product;
and
based
He also
on
liability
breach
of
and
two
for
implied
warranty.
The district
Gustafson, and
Werner, and
Design Erectors.
of
the risk
products
for
The court
barred
of
implied
default judgment
against
recovery
liability claims.
breach
entered a
for
plaintiffs'
negligence
and
warranty,
finding
that
there was
no
evidence that the ladder was not fit for its intended purpose, or
failed to meet
and that
the ladder.
the
defendants,
requirement
notice to
plaintiffs
of R.I. Gen.
seller in
or merchantability,
The court
was anything
failed to
Laws
comply
6A-2-607
breach of warranty
with
(requiring reasonable
action).
Finally, the
defendants owed
a duty
to Colantuoni,
the notice
none of the
and so these
on negligence.
defendants
this judgment.
Our
plenary.
review
of
an
summary
judgment
is
Plaintiff advances
first
that
several
the
because a
knowingly
and
injury.
We agree
with
unequivocally
of
court
error
erred
of
fact existed
voluntarily assumed
the
district
on
in
as to
the
court that
appeal,
granting
general issue
plaintiff
claims
district
granting
arguing
order
of the
whether
risk
of his
the
record
of injury.
strict liability.
A.2d
329, 333
of
Kennedy v.
_______
(1977).
To
the existence
of
495
A.2d
determining
229,
whether
a risk
particular
plaintiff
appreciated.
231
a
is
appreciated
its
unreasonable
(R.I.
1985).
plaintiff
knew
subjective,
in
fact
of
and is
saw,
The
standard
and
keyed
knew,
Drew v.
____
for
voluntarily
to what
understood
the
and
question of
usually a question
suggest only
danger,
encountered
While the
whether a plaintiff
assumed the
risk is
becomes one of
judgment.
Id. at 231; Rickey v. Boden, 421 A.2d 539, 543 (R.I. 1980).
___
______
_____
Traditionally, assumption of the risk existed as a
to
defense
owed to plaintiff.
Island law, we
the risk
defense
is
viable
to
products
In a diversity
liability
of
cases.
Cir. 1974).
-4-
Mignone
_______
v.
(citing
Fieldcrest Mills,
_________________
556
A.2d
35,
41
(R.I.
1989)
Turcotte).
________
B.
Application
___________
that the only reasonable inference to draw from the record before
us is that plaintiff assumed the risk of
his injury.
Colantuoni
duct
to an
roof
fan.
This was
in" a sheet
a
standard
Plaintiff had
trade for
extension
In his position as
job proceeded on
he would
need ladders,
correctly, and
staging,
or some
other means
of
reaching the ceiling and above ceiling spaces to install the duct
work at
that could
be used to
Shane
Engineering had a
hydraulic lift
the lift
could not be used to reach the ceiling space because it would not
-5-
fit
into
the
room
where
plaintiff
was
working.
It
was
plaintiff's
decision as
foreman to
figure
out an
alternative
date of
the accident,
plaintiff's coworker
David
of an extension ladder,
standard safety
included
Plaintiff
instructions affixed
and he knew
to
that
extension ladders
There is no
his
deposition,
plaintiff
acknowledged
that
he
the ladder did not have rubber feet on the bottom, which posed an
even
greater
danger
Nonetheless, he felt
it to
a stationary
of
slipping
than
ladders
a fellow
with feet.
without tying
worker put
ladder's stability by
his
looking at it and
Plaintiff
testing it
bouncing on it,
that the
following facts
support his
claim that he did not assume the risk of his injury: he had never
seen
someone slip
extension ladder,
using the
fly section
by defendants
of an
of the
possibility of
ladder
slipping,
at issue.
Handrigan v.
_________
and
262 (R.I.
1971), in
the particular
an extension ladder
inapposite to
The
instructions
challenges
intended
use
were
of
plaintiff
within
relevant
statute.
to
ladder,
the
abnormal
intended class
Assumption of
the
as
to
use,
of
the fitness
and
inclusion
beneficiaries
risk was
for
not an
of
of the
issue.
prior experience
of an
extension ladder, and knew at the time of his accident that using
a risk of slipping.
He
had
defense.
"[A] person
danger, not
of common
of a hidden or undisclosed
knowledge, in the
absence of
warning or
-7-
personal knowledge."
293,
James v.
_____
Here,
199 A.
Colantuoni
had never
seen
an
accident
such as
his
is
accident to occur.
Compare
_______
Soucy
_____
v.
Martin, 402
______
A.2d
1167 (R.I.
them neither
appreciated nor
543 (R.I.
1979)
voluntarily assumed
199 A.2d at 295-98 (plaintiff attending her first hockey game and
who had
no prior
knowledge of
the risk
of being
struck by
also
that
summary
judgment
on
the
a sworn affidavit
the
contends
time of
the accident
of the
ladder's propensity
to slip.
summary
judgment,
stands in
direct
contradiction
to his
deposition testimony.
When
an
interested
unambiguous questions,
witness
he cannot
has given
create a
clear
answers to
conflict and
resist
and Procedure
_____________
v.
Land O'Lakes,
Inc., 987
F.2d
1293, 1297
See Slowiak
___ _______
(7th Cir.
1993);
___________________
Trans-Orient Marine v. Star Trading & Marine, 925 F.2d 566, 572___________________
______________________
73 (2d Cir. 1991); Davidson & Jones Dev. v. Elmore Dev., 921 F.2d
_____________________
___________
1343, 1352 (6th Cir. 1991).
In this case, Colantuoni's statement in his affidavit
"[a]t all times
safe
and I
to use it
propensity
to slip"
had no
clearly
knowledge, at
contradicts
not
discuss
testimony.
any
His only
testimony
This
significant
his
deposition
contradiction between
not
to the
that the
viable.
time of
clarify any
The affidavit
clearly
clearly referred
attorney was
to
is
at
of its
deposition
his prior
confusion
it was
that time,
earlier
that
incorrect impressions.
time of his
The
deposition
the accident.
His
Moreover,
we think
it
In these circumstances,
of summary judgment.
See
___
Slowiak,
_______
987 F.2d at 1297; Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.
______
_____
1986).
-9-
In sum,
we find
reasonable inference
that on
to
draw
was standing on
us, the
that plaintiff
knew
only
of
the
that this
We therefore find
injury, thereby
The plaintiff
breach
of implied
liability
implied
for
also claimed
warranty.1
personal
that Werner
As a
was liable
threshold element
injuries under
theories
of
for a
of tort
breach of
purpose,
a plaintiff
must
posed a
Scittarelli v.
___________
prove
that
the
threat of
defendant
injury to
sold
potential
415 A.2d
1040,
Werner
presented evidence
that
the extension
ladder
at
using
the
top
half
separately.
Specifically,
Werner
____________________
submitted engineering
were riveted to
This
attached to
ladder
affidavit,
prepared
to
the rivets.
be
by
separated.
Werner's vice
the base
could only be
addition,
president
the
in
to
Werner's
charge of
the ladder "was manufactured in such a way that the guide grooves
on the
on the
base
also
presented evidence of
both the
of the ladder
Werner
attached to
"should not be
used as a
single
ladder
was
defective, and
extension
purpose
easily
disassembled,
therefore
or
in
not "merchantable"
any
as a
other
way
nonseparable
suggests
which it
was
the use of
used.
Instead,
plaintiff
simply
instructions regarding
ladder is
separate
-11-
pieces.
misuse
The
fact
that Werner
and minimized
warning in no
the danger
recognized
from such
the possibility
use by
of
providing a
warrantied to
be
The party resisting summary judgment "may not rest upon the
trial."
issue unless
Fed. R. Civ.
to the
district
P. 56(e).
There is
genuine issue
no trialworthy
finding favorable
to produce
that there is a
any such
opposing party.
248-49 (1986).
evidence.
We
to enable a
Anderson
________
v. Liberty
_______
therefore conclude
that the
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