Courtney v. Traders & General Ins. Co., 10786

• Decision Date: 19 April 1967
• Docket Number: No. 10786,10786
• Citation: 198 So.2d 529
• Parties: -Appellee, v. TRADERS & GENERAL INSURANCE COMPANY et al., Defendants-Appellants. Court of Appeal of Louisiana, Second Circuit
• Court: Court of Appeal of Louisiana — District of US

Page 529

198 So.2d 529

I. Janet COURTNEY, Plaintiff-Appellee, v. TRADERS & GENERAL INSURANCE COMPANY et al., Defendants-Appellants.

No. 10786.

Court of Appeal of Louisiana, Second Circuit.

April 19, 1967.

Rehearing Denied May 18, 1967.

Bodenheimer, Looney & Jones, Shreveport, for Traders & General Ins. Co., W Carter Henderson and Lucille W. Nipper, defendants-appellants.

James R. Malsch, Shreveport, for plaintiff-appellee.

Before HARDY, GLADNEY and AYRES, JJ.

AYRES, Judge.

This is an action in tort wherein plaintiff, employed by the assignee of a lease on the involved premises, seeks to recover of the owners-lessors of the premises and of their public liability insurer damages allegedly sustained as a result of being struck in the fall of the two top sections of an overhead sliding door which broke loose from the tracks upon which the door was operating.

Negligence charged to the defendant owners of the property consisted of their failure to replace or repair the door when they allegedly knew, or should have known, of its defective condition. The defendants denied any knowledge of the alleged defects prior to the occurrence of the accident and denied responsibility therefor, contending it was the duty of the lessee, not only under LSA-C.C. Art. 2716 but under the terms of the lease assumed by plaintiff's employer, to repair the door. In the alternative, defendants charged plaintiff with contributory negligence.

After trial, there was judgment in favor of plaintiff for the sum of $4,500.00. From the judgment thus rendered and signed, defendants appealed. Plaintiff, by answer to the appeal, seeks an increase in the award.

Plaintiff sustained the accidental injuries for which she seeks to be compensated in damages while engaged in the performance of her duties as manager of the Linwood Car Wash at 3120 Linwood Avenue in the City of Shreveport. The overhead sliding door at the entrance to the 'car wash' is comprised of five horizontal panels. The panels are connected by hinges. Rollers on shafts at the ends of the panels operate in a curved track as the door is opened or closed . When pulled down, the door is locked by means of sliding pins, located on both sides of the door, which slip into slots appropriately located in the door facings.

Upon cessation of operations on the day of the accident, plaintiff proceeded to close the place of business. The sliding door was pulled down almost to the floor. While attempting to bring the door into a position so that the locking pins would slip properly into the slots, plaintiff gave a push downward on the door. As she did so the two top panels of the door fell, striking plaintiff on the head, back, and shoulders, and knocking her to the floor. After the accident, it was discovered that some of the hinges between the panels were warped and bent and that some of the rollers at their ends were missing. The track was so bent and so out of shape that a successful repair job would have required the installation of a new track in its place.

From our view of the merits of defendants' alternative demand, we find it unnecessary to express an opinion as to the merits of their principal demands. From the record, we conclude that defendants' plea of contributory negligence should have been sustained.

This plea is predicated upon two facts: (1) that plaintiff knew the door was defective, having been so warned as well as having seen the door fall on several prior occasions, and (2) that she walked under the door at the spot where the door panels had theretofore fallen, and pushed down on the door without looking at the panels to determine whether they were remaining in place.

Plaintiff was employed as the manager of the 'car wash.' She was fully informed as to the defects in the door and the dangers inherent in its operation. These facts are established not only by plaintiff's statement given on the fifth day after the occurrence of the accident, but also by her testimony during the trial. In the statement first referred to, plaintiff said:

'The top two panels on the door facing it from the inside have no rollers on the left side and these two panels about 50% Of the time, when...