Bolton v. Great Atlantic & Pac. Tea Co., 3332
| Decision Date | 10 March 1971 |
| Docket Number | No. 3332,3332 |
| Citation | 245 So.2d 452 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | Freddie Mae BOLTON, Plaintiff and Appellee, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, Inc., Defendant and Appellant. |
Stafford, Pitts & Bolen, Alexandria, John L. Pitts, Alexandria, of counsel, for defendant-appellant.
Thomas & Friedman, by Gerard F. Thomas, Jr., Natchitoches, for plaintiff-appellee.
Before SAVOY, HOOD and CULPEPPER, JJ.
Plaintiff was awarded workmen's compensation benefits for total and permanent disability. Defendant appealed.
The issue is whether plaintiff, an employee in defendant's grocery store, was regularly exposed to hazardous features of the business.
The facts are that plaintiff had been employed for about five months as the manager of the coffee and dairy products department of defendant's grocery store in Natchitoches, Louisiana. Her duties included ordering the coffee and dairy products and placing this merchandise in the proper display areas. The dairy products were stored in a large walk-in cooler. About 40% Of her time was used in moving the dairy products from this cooler to the display areas.
Plaintiff used an electrically heated sealing iron, very similar to an ordinary household pressing iron, to seal plastic containers of dairy products, such as butter, cheese, etc. She testified she did not use this iron every day, but about 10% Of her time was spent in using this piece of equipment.
About 50% Of plaintiff's time was consumed with the use of a coffee grinder. This machine operates on 220 volts of electricity and is a 'double hopper mill', with a separate grinding mechanism on each side. From the pictures in the record it appears to be about two feet square and eight or ten inches in depth. The entire machine is enclosed by metal shields.
Plaintiff testified that when a customer ordered a pound of coffee she selected a prepackaged bag of the type desired and poured the coffee beans into a hopper on top of the grinder. She then set a dial on the side of the machine to grind the coffee coarse, medium or fine in accordance with the customer's request. Plaintiff then turned the lever to start the machine and it took about ten seconds to grind a pound of coffee. The ground coffee came out of the front of the machine into a paper bag which was then twisted at the top and handed to the customer. Plaintiff ground about 1,000 pounds of coffee each week.
About once every three weeks plaintiff was required to clean the coffee grinder. Using a screw driver, she removed a square metal cover on the side of the machine. She then removed the graduated burrs from the drive shaft and wiped them off. Coffee dust was brushed from the exposed parts with a brush or rag. After the burrs were cleaned they were replaced on the drive shaft and the metal cover was snapped back in place on the side of the machine.
Each side of the machine was cleaned separately. If a customer wanted coffee while plaintiff was cleaning one side, she would grind the coffee in the other side.
The accident occurred when plaintiff leaned over and picked up a case of cheese. She sustained an injury to her back which required hospitalization and eventually necessitated surgery. Defendant concedes the accident and plaintiff's disability.
Several applicable principles of law are well established in our jurisprudence. The operation of a retail grocery store is not listed as a hazardous business in LSA-R.S. 23:1035 and is not hazardous per se. Boggs v. Great Atlantic & Pacific Tea Co., 125 So .2d 419 (La.App.3rd Cir. 1960); Pinchera v. Great Atlantic & Pacific Tea Co., 206 So.2d 793 (La.App.2d Cir. 1968). Although a business is not hazardous per se, an employee is nevertheless covered by the workmen's compensation act where he is regularly exposed to or frequently brought in contact with a hazardous feature of the business. Luce v. New Hotel Monteleone, 234 La. 1075, 102 So.2d 461 (1958); Mercer v. Sears Roebuck & Co., 155 So.2d 112, 122 (La.App.3rd Cir. 1963). Such an employee is covered regardless of whether the injury resulted from hazardous or non-hazardous features of his employment. Byas v. Hotel Bentley, 157 La. 1030, 103 So. 303; Richmond v. Weiss & Goldring, Inc., 124 So.2d 601 (La.App.3rd Cir. 1960).
At the outset, we will state that counsel for plaintiff places little reliance on the fact that she frequently entered the walk-in cooler where dairy products were stored. Although this cooler was operated with electric compressors and other refrigerating equipment, the duties which plaintiff performed in or around this cold storage room were not hazardous. Claiborne v. Smith, 2 So.2d 714 (La.App.); Boggs v. Great Atlantic & Pacific Tea Co., supra. The same is true of the sealing iron. Harrington v. Franklin's Stores Corporation of New Iberia, 55 So.2d 647 (La.App.).
Essentially, the question is whether the operation and cleaning of the coffee grinding machine rendered plaintiff's employment hazardous. Similar questions have plagued the courts for many years. Although LSA-R.S. 23:1035 classifies as a hazardous occupation 'The * * * operation * * * of * * * apparatus charged with electrical current.' there are several cases which hold that this alone is not sufficient to render the employment hazardous . For instance, in Claiborne v. Smith, 2 So.2d 714 (La.App.) a cook in a cafeteria who regularly came in contact with an electric motor and compressor on the outside of a refrigerator was held not to be engaged in a hazardous feature of the business. In Harrington v. Franklin's Stores Corporation of New Iberia, supra, the court held that the use of an electric steam iron and a vacuum cleaner was not hazardous. Honeycutt v. Sears Roebuck & Co., 146 So.2d 860 (La.App.3rd Cir. 1962) held that a saleslady in a department store who regularly operated an electric cash register and relaced tapes in it was not engaged in hazardous features of that business. In the recent case of Fontenot v. J. Weingarten, Inc., 232 So.2d 143 (La.App.3rd Cir. 1970) we refused to extend the coverage of the act to a checker or cashier in a grocery store who operated an electric cash register and counter top conveyor belt.
On the other hand, there are cases which...
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