Baptist Medical Center v. Byars

Decision Date07 December 1972
Citation271 So.2d 847,289 Ala. 713
PartiesThe BAPTIST MEDICAL CENTER, a corporation v. Mary K. BYARS. SC 30.
CourtAlabama Supreme Court

Dunn, Porterfield, McDowell & Scholl, Birmingham, for appellant.

Lanny S. Vines and Clifford Emond, Jr., Birmingham, for appellee.

MERRILL, Justice.

This appeal is from a judgment for $20,000.00 in a suit for personal injuries sustained by appellee when she slipped but did not fall in the defendant-hospital. The motion for a new trial was overruled.

The cause was submitted to the jury on one count which alleged that the hospital 'negligently maintained the floors and hallways in said hospital in such a manner that the same were slick and were not reasonably safe for use.'

Appellant's argued assignments of error raise two contentions--first, that the hospital performed all its duties owed to appellee and secondly, that appellee was guilty of contributory negligence as a matter of law. These points are raised in assignments of error that the court erred in refusing requested written charges which would have given the affirmative charge or the affirmative charge with hypothesis for appellant.

Both sides agree that appellee was an invitee and the case was tried on that premise. Appellee states in brief:

'The complaint in the case at bar did not declare upon negligence consisting of a duty to warn Mrs. Byars. The complaint charged that the defendant negligently failed to maintain its premises in a reasonably safe condition. Therefore, it is not necessary to discuss the question of whether or not the hospital breached its additional duty to warn plaintiff appellee of a hidden danger or hazard. This is true inasmuch as plaintiff need only show the breach of one of the two duties in order to recover.

'* * * Therefore, a discussion of the hospital's duty to warn will be dealt with on the question of whether or not the plaintiff was guilty of contributory negligence as a matter of law and will not be dealt with on the question of whether defendant discharged such duty, since this was not plaintiff's theory.'

The appellee is a private duty registered nurse. She has been self-employed as a private duty nurse for approximately fifteen years. In August of 1968, she was employed by a patient in the Baptist Medical Center as a private duty nurse.

On the morning of the alleged slip, the appellee saw her patient around 8:30 or 9:00 o'clock asleep in his room at the hospital. She left her patient asleep and later went down to the dietary kitchen in the hospital to get his breakfast.

The plaintiff testified that she had seen the floors being mopped at the hospital on prior occasions but had never noticed a floor being stripped of wax before.

The stripping process was undertaken periodically to clean the hospital's floors by removing the old wax and the accumulated grime. The substance used to dissolve the odl wax is colorless but when put on the floor is much more slippery than if wet with water. The procedure used is to strip an area ten or twelve feet in length only on one-half of the corridor at one time. It takes about twenty to thirty minutes to complete this area. The person stripping the wax off the floor places warning signs around the area he is stripping and then works within those signs. This always leaves half the corridor safe for walking.

On the morning of her accident, appellee came on the floor with her patient's breakfast tray and started toward Room 635. She saw the signs in the corridor and a wet area in front of the door to Room 635. She saw Adam Cox, who was doing the stripping. She testified that she asked him how she was going to get into her room and he said 'You will have to walk across, but be careful. It's slick.' She walked across the wet area being cleaned and when she took her first step into her patient's room, she slipped but did not fall. She caught the side of the door and did not drop the tray but she 'Felt like I had pulled my insides right out, * * * in my right lower groin, * * *.'

There is one conflict in the evidence on the question of failing to maintain the premises in a reasonably safe condition. Mrs. Giatinna was employed by the hospital in 1968 as a supervisor in housekeeping and in August, 1968, she was in charge of three floors, including the sixth. She worked under Mrs. McClinton, the executive housekeeper of the hospital. Mrs. Giattina testified that Mrs. McClinton had advised her to strip only half of the doorway of a room at a time so as to allow the other half to be free for passage; that she had given Adam instructions not to put the stripping solvent across the whole door entrance to a room, but he continued to do it.

Mrs. Cargile, who helped Adam Cox with the stripping and was helping the day appellee slipped, testified that the hospital did not have any rule that the stripping must be conducted so as to leave half of a doorway to a room open, and she had never heard of such a rule. Mrs. McClinton testified that the hospital had no such rule; that she had never heard of such a rule prior to the trial, and that the practice had never been followed to her knowledge; that she had worked in three other hospitals, that it was not standard practice in hospitals in the Birmingham community to go half-way a door to half-way a door when stripping, and she had never heard of such a practice in any hospital outside the state.

A question of fact for the jury was thus presented under appellee's theory of the case.

That brings us to the final question as to whether appellee was guilty of contributory negligence as a matter of law. If she was, the appellant was entitled to one of the requested written affirmative charges. If she was not, the trial court was correct in submitting the question of her contributory negligence to the jury.

The essential elements of contributory negligence in Alabama where the plaintiff assumed the risk or consequences by placing himself into a dangerous position are (1) knowledge by the plaintiff of the condition; (2) appreciation of the danger under the surrounding conditions and circumstances; and (3) failure of the plaintiff to exercise reasonable care in the premises, but with such knowledge and appreciation to put himself into the way of danger. Foster & Creighton Co. v. St. Paul Mercury Indem. Co., 264 Ala. 581, 88 So.2d 825; F. W. Woolworth Co. v. Bradbury, 273 Ala. 392, 140 So.2d 824; Kingsberry Homes Corp. v. Ralston, 285 Ala. 600, 235 So.2d 371.

Under the facts in this case, we think there is no question but that appellee...

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42 cases
  • Borden v. CSX Transp., Inc.
    • United States
    • U.S. District Court — Middle District of Alabama
    • November 29, 1993
    ...premises, and, with such knowledge and appreciation, the plaintiff's putting himself into the way of danger. Baptist Medical Center v. Byars, 289 Ala. 713, 271 So.2d 847 (1972). On the other hand, contributory negligence, in the context of actions in simple negligence, is negligence on the ......
  • Fireman's Fund American Ins. Co. v. Coleman
    • United States
    • Alabama Supreme Court
    • August 8, 1980
    ...jury when, under the facts and circumstances, reasonable minds may fairly differ upon the issue of negligence. Baptist Medical Center v. Byars, 289 Ala. 713, 271 So.2d 847 (1972); Southern Railway Co. v. Carter, 276 Ala. 218, 160 So.2d 628 (1963); and Mackintosh v. Wells, 218 Ala. 260, 118 ......
  • Central Alabama Elec. Co-op. v. Tapley
    • United States
    • Alabama Supreme Court
    • May 12, 1989
    ...Wilson v. Alabama Power Co., 495 So.2d 48 (Ala.1986); Marquis v. Marquis, 480 So.2d 1213 (Ala.1985); Baptist Medical Center v. Byars, 289 Ala. 713, 271 So.2d 847 (1972); Mackintosh Co. v. Wells, supra. Moreover, it must be demonstrated that the plaintiff's appreciation of the danger was a c......
  • Elba Wood Products, Inc. v. Brackin
    • United States
    • Alabama Supreme Court
    • January 27, 1978
    ...under the facts and circumstances, reasonable minds may fairly differ on the question of negligence vel non. Baptist Medical Center v. Byars, 289 Ala. 713, 271 So.2d 847 (1972). These principles of law are likewise applicable to the defense of subsequent contributory In Dees v. Gilley, 339 ......
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2 books & journal articles
  • The Common Law as a Guide to State Constitutional Interpretation.
    • United States
    • Suffolk University Law Review Vol. 54 No. 4, September 2021
    • September 22, 2021
    ...similar to the approach that Massachusetts uses, which is easier for the plaintiff to prove that the store was liable. See id. (194.) 271 So. 2d 847 (Ala. (195.) See id. at 848, 850-51 (holding contributory negligence not established). (196.) 600 S.W.3d 597 (Ark. 2020). (197.) See id. at 60......
  • The Common Law as a Guide to State Constitutional Interpretation.
    • United States
    • Suffolk University Law Review Vol. 54 No. 3, June 2021
    • June 22, 2021
    ...similar to the approach that Massachusetts uses, which is easier for the plaintiff to prove that the store was liable. See id. (194.) 271 So. 2d 847 (Ala. (195.) See id. at 848, 850-51 (holding contributory negligence not established). (196.) 600 S.W.3d 597 (Ark. 2020). (197.) See id. at 60......

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