Hunt v. City Stores, Inc.

• Decision Date: 23 June 1980
• Docket Number: No. 66081,66081
• Citation: 387 So.2d 585
• Parties: Jerry HUNT, Individually and as the Administrator of the Estate of his minor son, David Hunt v. CITY STORES, INC. d/b/a Maison Blanche and the Travelers Insurance Company, Otis Elevator Company and Commercial Union Assurance Company.
• Court: Louisiana Supreme Court

Page 585

387 So.2d 585

Jerry HUNT, Individually and as the Administrator of the Estate of his minor son, David Hunt v. CITY STORES, INC. d/b/a Maison Blanche and the Travelers Insurance Company, Otis Elevator Company and Commercial Union Assurance Company.

No. 66081.

Supreme Court of Louisiana.

June 23, 1980.

Rehearing Denied Sept. 12, 1980.^*

James H. Drury, Drury & Lozes, New Orleans, for defendants-respondents, Otis Elevator Co., et al.

Frank J. Achary, Law Offices of James J. Morse, New Orleans, for defendant-applicant, City Stores, Inc., etc., et al.

Paul Bonin, Levenson & Bonin, New Orleans, for respondent.

WATSON, Justice.^*

At issue is the propriety of a judgment granting plaintiff an award for personal injuries against the owner of an escalator but dismissing a third party demand by the owner against the manufacturer.

Plaintiff, Jerry Hunt, filed suit individually and as the administrator of the estate of his minor son, David, for damages sustained in an accident on an escalator in a New Orleans department store. Defendants are City Stores, Inc. d/b/a Maison Blanche; its insurer, Travelers Insurance Company; Otis Elevator Company, the manufacturer of the escalator; and its insurer, Commercial Union Assurance Company. Defendants City Stores and Travelers filed a third party demand against Otis for contribution and/or indemnification and against Mrs. Jerry Hunt, David's mother, alleging that her negligence was the sole cause of the accident.¹ The trial court rendered judgment in the amount of $5,184 in favor of plaintiff and against defendants, City Stores and Travelers, and dismissed all demands against Otis and Commercial Union. The Fourth Circuit Court of Appeal, 375 So.2d 1194, affirmed on the ground that Marquez v. City Stores Co., 371 So.2d 810 (La., 1979) controlled that result.² Upon application of City Stores and Travelers, a writ of certiorari was granted to review the conclusion that the escalator's defect warranted a judgment against City Stores under LSA-C.C. art. 2317, but not a judgment on the third party demand against the manufacturer under the rationale of Weber v. Fidelity and Casualty Insurance Co. of N.Y., 259 La. 599, 250 So.2d 754 (1971).

On May 27, 1976, twelve year old David Hunt was shopping in the Maison Blanche store at Lake Forest Plaza shopping center in New Orleans. As he rode a descending escalator from the second to the first floor, his right tennis shoe was caught in the space between the moving tread and the escalator's left side panel. Although David was accompanied by his mother and other family members, no one knew exactly why his shoe lodged in the escalator. There was no evidence that the child was misbehaving or that he deliberately wedged his foot in the machine. David testified that he was looking at glittering streamers which hung from the ceiling when the escalator "grabbed" his foot and pulled it into the side opening (Tr. 16). Both knees were injured. The escalator was stopped and David's shoe was cut away to free his foot.

Marquez v. City Stores Co., 371 So.2d 810 (La., 1979), involved a three and one-half year old child who was injured on the same escalator. The key issue in Marquez was whether the escalator was defective. There was no proof of violation of national safety standards for escalators. Evidence of distinctive jolts and noises prior to the accident was rejected. The escalator caught the Marquez child's shoe and this was ". . . an unusual occurrence in itself which would not have happened had this escalator not been defective." 371 So.2d 813. Since the escalator was defective, City Stores was liable under LSA-C.C. art. 2317,³ as interpreted in Loescher v. Parr, 324 So.2d 441 (La., 1975). Article 2317 and Loescher had previously been applied to hold a department store owner liable for injuries caused by a defective escalator in Wolverton v. City Stores Co. (Maison Blanche Division), 363 So.2d 1321 (La.App. 4 Cir. 1978).

LSA-C.C. art. 2317 imposes liability on the custodian of a defective person or thing which creates an unreasonable risk of harm to others. According to Loescher, the plaintiff must prove "the vice (i. e., unreasonable risk of injury to another) in the person or thing whose act causes the damage, and that the damage resulted from this vice." 324 So.2d 446-447. To escape liability, the defendant must show that the damage was due to fault of the victim, fault of a third party, or an act of God. Although "unreasonableness" is a traditional standard for the determination of negligence, it is also fundamental to a finding of strict liability under LSA-C.C. art. 2317. In both negligence and strict liability cases, the probability and magnitude of the risk are to be balanced against the utility of the thing. The distinction between the two theories of recovery lies in the fact that the inability of a defendant to know or prevent the risk is not a defense in a strict liability case but precludes a finding of negligence. See "Fault of the Victim: The Limits of Liability Under Civil Code Articles 2317, 2318 and 2321," 38 La.L.Rev. 995 at 1013 (1978); "Does Louisiana Really Have Strict Liability under Civil Code Articles 2317, 2318, and 2321?," 40 La.L.Rev. 207 (1979).

Here, the space between the moving threads and the escalator's side panel was 11/16 to 33/16 of an inch, less than the maximum of 3/8 of an inch permitted by the National Safety Code for escalators. There was testimony that some space must be left between the side panel and the moving tread to prevent friction and scuffing and that the escalator does not move laterally under "normal conditions" (Tr. 128). There was no failure to comply with the standards of the escalator industry and no proof that the escalator could have been manufactured to prevent the entrapment of small feet in small spaces. The product was said to represent the latest and best in escalator design. Nevertheless, a great probability of this particular accident occurring was established. Marquez and Mire v. Otis Elevator Co., Inc., 357 So.2d 1326 (La.App. 4 Cir. 1978) both involved tennis shoes which lodged in the side of a moving escalator. According to Otis expert David Steel, the coefficiency of friction is a factor in trapping tennis shoes. The friction produces heat which softens the rubber which increases the coefficiency of friction. Walter Joseph Sarrat, administrator of the Maison Blanche Lake Forest store, admitted that children's feet, the majority with tennis shoes, had been caught in the escalator of his store about four times before David Hunt's accident. A small plaque on the base of the escalator warned against "Barefoot Children", but did not caution against tennis shoes.

While the escalator was beneficial and convenient to Maison Blanche and its customers, the utility of its condition on May 27, 1976, was outweighed by the hazard to small children associated with its use. Although David Hunt only hurt his knees, the injuries to Marquez and Mire were severe enough to warrant partial toe amputations.

This escalator posed a threat to small children in tennis shoes. City Stores was aware of the danger and had a duty to warn of the risk of injury. It failed to do so. The store was at fault in not guarding the public against the risk of harm posed by the escalator.

Although Otis installed and serviced the escalator, its maintenance contract provided:

"It is agreed that we do not assume possession or control of any part of the equipment but such remains yours exclusively as the owner . . .". City Stores, Exhibit # 1, page 3.

Therefore, City Stores d/b/a Maison Blanche was custodian of the defective escalator. It has not carried the burden of showing any fault by victim Hunt or a third person which would relieve it of liability. LSA-C.C. art. 2317.

In Weber v. Fidelity & Casualty Insurance Co. of N.Y., supra, a rule of strict liability for manufacturers of defective products was enunciated. The court stated:

"A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated. However, the plaintiff claiming injury has the burden of proving that the product was defective, i. e., unreasonably dangerous to normal use, and that the plaintiff's injuries were caused by reason of the defect.

"If the product is proven defective by reason of its hazard to normal use, the plaintiff need not prove any particular negligence by the maker in its manufacture or processing; for the manufacturer is presumed to know of the vices in the things he makes, whether or not he has actual knowledge of them." 259 La. 602-603, 250 So.2d 755-756."

Thus, under Weber, the plaintiff in a products liability suit must only prove that the product was defective, i. e., unreasonably dangerous to normal use; that the product was in normal use at the time the injury occurred; that the product's defect caused his injury; and that the injury might reasonably have been anticipated by the manufacturer. It is unnecessary to prove that the manufacturer was negligent because he knew or should have known of the dangerous condition of the product at the time of the manufacture or sale. The focus is on the product itself and whether it is unreasonably dangerous to normal use. See 43 Mo.L.Rev. 601, 604 (1978); "The Developing Definition of Defect in California Products Liability", 8 Golden Gate Univ.L.Rev. 263, 286 (1978). A person injured by a product need not prove defective design or manufacture in order to recover from the manufacturer or retailer of the product. Chappuis v. Sears Roebuck & Co., 358 So.2d 926 (La., 1978). Again, a balancing...