Larsen v. Johnson
Larsen v. Johnson
Opinion of the Court
Plaintiff seeks to reverse a summary judgment which rejected his claim for damages to his car and injury to himself when he ran into a road-construction barrier.
The incident occurred at about 2 a. m., August 24, 1966, when the plaintiff was
In order to avoid the effect of the rule that there is ordinarily no liability for damage which results from running into a barrier or other signal device which is lawfully placed and plainly visible,
Plaintiff does not claim there was anything improper as to the size, shape or placement of the barricade, or as to its visibility. The contention which he does make, and which forms the critical issue in this case, is that, the defendant was negligent in placing on the barricade the rock referred to, which was precipitated into plaintiff’s car. The defendant could be found guilty of negligence only if he was guilty of some act or omission which he ought to have foreseen was exposing others to an unreasonable risk of harm
Because of the construction on the new freeway adjacent to the highway, the defendant was under a duty to place some type of barrier and warning to keep motorists from going over onto the new construction. We agree with the plaintiff’s contention that such a harrier should not be so constructed as to constitute a trap. Nor should it create any unnecessary hazard. Nevertheless, such a barrier would obviously have to be constructed of something substantial and durable. The defendant certainly was not obliged to make the barriers of papier-mache or some other unsubstantial material to protect from harm motorists who drive off the traveled highway and into them. Moreover, due to their likelihood of being blown over by the wind, and the hazards that would entail, the propriety of stabilizing them with some type of weight or ballast is not to be questioned.
In the light of what we have said above, we revert to the specific point of inquiry here: Under the circumstances shown, was the placement of the 85-pound rock on the barricade to stabilize it such an act that in the exercise of ordinary care the defendant should have foreseen that he was exposing the plaintiff and others sim-
ilarly situated to an unreasonable risk of harm?
In insisting on an affirmative answer to that question the plaintiff is confronted with some difficulties. The first is- that it is ordinarily not unreasonable to assume that drivers will keep their cars on the portion of the highway designated for travel; moreover, that they will keep on their own side of the highway and will not cross clear over the wrong side and into barriers erected for their protection. Further, if one were to conjecture about such a barricade being knocked over by a car, it would seem more likely that this would he done by a car coming from the south, and thus on its own side of the highway, more or less parallel to the barriers, in which instance the rock would simply fall with the barrier, rather than to conjecture that it would be knocked over by a car coming from the north, swerving over onto the wrong side of the road and into the barrier practically at right angles, and a low compact car at that, so that the rock would be precipitated over the hood and into the car.
It is our opinion that this accident, unfortunate and regrettable though it was in causing damage and injury to the plaintiff, was not one which, in any reasonable view of the situation, could be blamed upon any lack of due care by the defend
Affirmed. Costs to defendant (respondent).
. See 25 Am.Jur., Highways, Sec. 482, p. 770.
. Brandt v. Springville Banking Co., 10 Utah 2d 350, 353 P.2d 460.
.See James, Nature of Negligence, 3 Utah. Law Rev. 275; see also Hillyard v. Utah-By-Products Co., 1 Utah 2d 143, 263 P.2d 287.
.As to the salutary purpose of saving the time, trouble and expense of trial by granting summary judgment when even under the plaintiff’s claims no right of recovery can be established, see Henry v. Washiki Club, Inc., 11 Utah 2d 138, 355 P.2d 973, and authorities therein cited; Tempest v. Richardson, 5 Utah 2d 174, 299 P.2d 124.
Dissenting Opinion
(dissenting).
I respectfully dissent, for the reason that I believe there was a genuine fact issue that transcended the summary judgment, triable by an arbiter thereof.
Reference
- Full Case Name
- Richard A. LARSEN, Plaintiff and Appellant, v. LeGrand JOHNSON, Dba LeGrand Johnson Construction Company, and LeGrand Johnson Company, Inc., a Corporation, Defendant and Respondent
- Cited By
- 7 cases
- Status
- Published