Chauvin v. U.S. Fidelity & Guaranty Co.

• Decision Date: 22 May 1969
• Docket Number: No. 2647,2647
• Citation: 223 So.2d 441
• Court: Court of Appeal of Louisiana — District of US
• Parties: Ena Marie CHAUVIN, Plaintiff and Appellee, v. UNITED STATES FIDELITY & GUARANTY CO., et al., Defendants and Appellants.

Page 441

223 So.2d 441

Ena Marie CHAUVIN, Plaintiff and Appellee, v. UNITED STATES FIDELITY & GUARANTY CO., et al., Defendants and Appellants.

No. 2647.

Court of Appeal of Louisiana, Third Circuit.

May 22, 1969.

Rehearing Denied June 18, 1969.

Davidson, Meaux, Onebane & Donohoe, by Timothy J. McNamara, Lafayette, for defendants-appellants.

Koury & Judice, by Joseph A. Koury, Lafayette, for plaintiff-appellee.

Before TATE, HOOD and CULPEPPER, JJ.

CULPEPPER, Judge.

Plaintiff, Mrs. Ena Marie Chauvin, claims damages for personal injuries sustained by her when she tripped and fell while on premises which were being used by Howard Reed for the operation of a business. The defendants are Reed and his liability insurer, United States Fidelity & Guaranty Company. The case was tried by jury, with the result that a verdict was rendered in favor of plaintiff for $4,000. A decree was signed by the trial judge in accordance with the verdict, and defendants have appealed. Plaintiff has answered the appeal praying that the amount of the award be increased.

The principal questions presented on this appeal are: (1) Was defendant Reed negligent in failing to maintain his business premises in a safe condition for invitees? and (2) Was plaintiff guilty of contributory negligence in failing to see the object over which she tripped, thus barring her from recovery?

The accident occurred about noon on February 9, 1966, in Lafayette, Louisiana, on property which had been leased to defendant Reed, and which was being used by Reed for the operation of a 'Dairy Queen' business. The owner-lessor of the property is not a party to this suit. The Dairy Queen is a 'drive-in' type business where food, beverages and ice cream are the principal commodities sold. The property which had been leased to defendant Reed, and on which this business was located, consisted of a relatively small building, about 18 feet wide by 30 feet deep, and a parking lot which practically surrounded the building. The building faced in a southwesterly direction on University Avenue.

There were no facilities for serving customers inside the building . Instead, the building was equipped with three service windows, through which customers standing on the outside of the building at these windows could be served. Two of these service windows were located at the front of the building, and the third such window was located on the southeast side of it.

An iron railing, about 24 inches high, had been installed across and parallel to the front of the building, the purpose of that railing being to prevent automobiles from being driven or parked too close to the building itself. The railing was about six feet from the front of the building, and a concrete walkway, about six feet wide, ran between the front of the building and this railing. These was a break or an opening in the iron railing directly in front of the building, which opening permitted customers approaching the building from the front to walk to either of the two front serving windows without having to step over the railing. The distance from the center of this opening in the iron railing to either side of the building was about nine feet.

Immediately before this accident occurred Mrs. Chauvin approached the front of the building and walked through the above described opening in the iron railing. She entered through this opening, turned to her right and walked in a southeasterly direction, on the six foot wide walkway which ran between the building and the railing, to a point about even with the east side, or the right front corner, of the building. At that point she tripped and fell over a 'door', or a decorative piece of lumber, which had fallen from its upright position and was lying across her path. She contends that she sustained injuries as a result of that fall, and in this suit she claims damages for those injuries.

The object on which plaintiff tripped resembled a barn door. It was eight feet long, three feet wide and about three inches thick. The border around the outside edges of the door, and several cross pieces on it, were painted red, while the rest of the door was painted white.

Prior to the occurrence of this accident, this door had been used as a decorative piece on the building. It had been installed originally in an upright position at the right front corner of that structure, and two other doors like it had been installed on other corners of the edifice. All of these decorative doors were fastened to the building with metal straps and screws. Shortly before this accident occurred the decorative door at the right front corner of the building fell from its upright position, and it came to rest flat on the concrete walkway, extending from that corner of the building across what would have been an extension of the six foot passageway. After it had fallen, it blocked the end of that passageway to the extent that a person endeavoring to walk in a southeasterly direction on that passageway would have to step on or over the door in order to proceed beyond the right front corner of the building. The door, as it lay across the concrete passageway, extended about four inches above the surface of the concrete.

Mrs. Chauvin testified that she went to the Dairy Queen to buy an ice cream cone. She stated that when she walked through the opening in the iron railing immediately before the accident occurred, she saw a number of customers standing at the front service window which was located to her left. She felt that she would have difficulty getting waited on at that window, so she turned to her right and she proceeded to walk in a southeasterly direction on the six-foot passageway between the building and the iron railing, her purpose being to walk past the right serving window and to go around the front corner of the building to the side window where she hoped to be served sooner. She testified that she did not see the decorative door as it lay across the passageway, and that when she reached it she tripped on it and fell.

One of the reasons given by plaintiff for her failure to see the door over which she tripped is that the place was very crowded with people, who obstructed her view of the door itself and whose presence distracted her. Hence, an important factual issue is the number of people on the premises and the positions in which they were sitting or standing.

The evidence shows that, generally speaking, the place was crowded . The accident occurred during the noon hour, when this Dary Queen usually does a large business. Many cars were parked in the parking area. A few people were seated along the rail across the front of the building. Customers were lined up at the window on the left, facing the front of the building, and standing in the passageway near the center.

Defendant makes much of confusion in plaintiff's testimony as to whether there were any customers standing at the service window on the right, who would have obstructed plaintiff's view of the door lying across the passageway. In her pretrial deposition, as well as her testimony at the trial under cross-examination, plaintiff stated that no one was standing at the window on the right. Hence, for purposes of our decision we will assume this was true. However, plaintiff's general description was that the place was crowded and she had to pass through these customers to reach this 'ice cream window' on the side. She testified clearly that there were two men seated on the rail in front of the window on the right. These two men had their feet extended. There was a space of only 5.3 feet between the rail and the service counter which extended out from the building, which means that plaintiff had a space of about three feet through which to pass.

When asked why she did not see the door across her path, plaintiff stated: 'I was just too busy looking at the window more than anything else.' At other points she said: 'I wasn't looking down'; and that she 'wasn't expecting it'; and further that 'there were too many people around to distract me'; and 'I wanted to just go there and go home right away'; and 'I had my mind on if I should get served at that window or the other window'; and 'I wasn't watching to see a door and I wasn't expecting to see a door' and that she was 'thinking about the crowd and many other things.'

Now turning to the law, we have little difficulty in concluding that the defendant storekeeper was negligent. The storekeeper is not an insurer of the safety of his customers, his duty being to exercise reasonable care for their safety. However, the duty to use reasonable care is a full one, extending to every hazard which creates an unreasonable risk of foreseeable harm to his business invitees. This duty includes that of inspecting the premises for defects and warning of perils which the customers may not see through the exercise of ordinary care. Consideration must be given to the nature of the premises and the business purpose for which it is used. Peters v. Great Atlantic & Pacific Tea Company, La.App., 72 So.2d 562; Pilie v. National Food Stores of Louisiana, Inc., 245 La. 276, 158 So.2d 162 (1963); Alexander v. General Accident Fire & Life Insurance Corp., La.App., 98 So.2d 730; Prosser, Law of Torts, 3d. Ed., 401--405.

In the present case there was a defective condition of the premises. The door had apparently been blown down by the wind before this accident occurred and was allowed to remain there as an obstruction to passage along the front of the building. The trial judge was no doubt impressed by the fact that on this issue defendant called only the owner of the business, and did not call any employees who were on duty that day, although it was made clear that at least one of them was readily available to testify. The owner testified that he inspected the premises while cleaning the lot about 10 a.m. and saw that the door was in place when he served a customer about 11 o'clock; that he did not know...