stating when âdetermining whether the evidence on the plaintiffâs behalf was sufficient to warrant submission to the jury, the plaintiff is entitled to have every controverted fact resolved in his favor and to have the benefit of all reasonable inferences that can be deduced from the evidenceâ
How later courts described this case
- stating when âdetermining whether the evidence on the plaintiffâs behalf was sufficient to warrant submission to the jury, the plaintiff is entitled to have every controverted fact resolved in his favor and to have the benefit of all reasonable inferences that can be deduced from the evidenceâ
- finding that landowners are not liable for dangers known or reasonably obvious to an invitee
- questions of negligence for jury if evidence to support issue
Written by the judges who cited it.
The opinion
PORTER, Justice
(dissenting).
I respectfully dissent and would hold that the plaintiff contractor, as a matter of law, assumed the risk. Since he was the expert and the homeowner was not, plaintiff had no right to claim reliance upon any representation the homeowner made to him concerning the safety of the canopy, when the limited observation plaintiff chose to make revealed the canopy condition was “dangerous” and “unsafe.” Thereafter, in spite of his own conceded misgivings about the canopy, plaintiff voluntarily placed his scaffolding in such position that his own safety would be jeopardized if the loosened canopy fell, as it later did. Plaintiff independent contractor knowingly acquiesced in the risk by electing to go ahead with the work in the manner he did. Bartlett v. Gregg, 77 S.D. 406 , 92 N.W.2d 654 (1958); Restatement (Second) of Torts § 496 C at 569 (1965).