Ferrell v. Hellems
| Decision Date | 23 September 1966 |
| Citation | 408 S.W.2d 459 |
| Parties | Alice FERRELL, Appellant, v. Dorothy D. HELLEMS, Individually and t/d/b/a Hellems School of Beauty Culture, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Benjamin Mazin, Louisville, for appellant.
J. Walter Clements, G. William Clements, Louisville, for appellee.
SCOTT REED, Special Commissioner.
In this suit for personal injuries the plaintiff appeals from the action of the trial court in directing a verdict in favor of the defendant at the conclusion of plaintiff's evidence.
This action was brought by the appellant against the appellee for injuries appellant claims to have sustained as a result of some Coca-Cola cases falling over and hurling bottles on the appellant, one of which broke and cut her foot. These Coca-Cola cases were located on premises controlled and used by the appellee for the operation of a school of beauty culture. At the time of the accident appellant had been a student in this school for a relatively short time.
Since the trial court directed a verdict at the conclusion of the evidence in chief for plaintiff, it is incumbent upon us to review this evidence to determine whether or not the plaintiff made out a prima facie case. In this determination, of course, we must view this evidence in the light most favorable to the plaintiff and give her the benefit of any legitimate inferences which may be drawn from the evidence she presented.
There is actually very little dispute as to what happened on the occasion in question and in our view such factual differences between the parties as were present are not relevant to a proper disposition of the question presented on appeal.
It is admitted that the defendant operated a beauty school on the premises where the accident occurred and was in control of the management and operation of the place where the plaintiff sustained her injuries. It is further established that the plaintiff was a tuition-paying student at this beauty school at the time of her injuries and was in the category of an invitee. According to the plaintiff's evidence, which consisted of her own testimony together with a pretrial deposition of the defendant and the defendant's testimony at the trial as if on cross-examination, at about 9:30 A.M. on the day of the accident the delivery truck of a local soft drink retailer delivered cases of bottled drinks to the beauty school. As was usual, the truck driver stacked these wooden cases of drinks in a small stockroom immediately adjacent to a locker room, which latter place was used by the some 75 or 80 students enrolled in the school. Considerably later in the day, and at about 3:30 or 4:30 in the afternoon, the defendant sent the plaintiff to a restaurant for some ice. When the plaintiff returned, she found that the defendant was not in her office and was informed that the defendant wanted her in the back of the school. She went to the back of the school and there the defendant requested her to help carry in garbage cans from the outside. Plaintiff and the defendant carried in the garbage cans. After this was done, the defendant stated that they would fill the coke machine. This was a dispensing machine located a considerable distance from the stockroom and apparently was placed somewhere near the front of the school premises. According to the plaintiff, the defendant opened the stockroom and expressed dissatisfaction with the way the delivery truck driver had stacked the cases of drinks. The defendant then got some paper carrying cartons and filled them up with bottles of soft drink. She took some of these bottles from the floor and some of them out of the stacked cases. The defendant, of course, was in the stockroom for this purpose but the plaintiff stayed out in the locker room and did not enter the stockroom. According to the plaintiff, the defendant told her that they would put these bottles in the dispensing machine and then go back for more until they had filled up the dispensing machine. The plaintiff obeyed the defendant's request and took the soft drinks which the defendant had given her to the dispensing machine and placed these bottles in it. It seems that about this time the defendant was called to the telephone and left to answer the call. The plaintiff testified that in compliance with the defendant's request she then returned to the stockroom to secure additional bottles of soft drink for the purpose of filling up the dispensing machine, and when she opened the door of the stockroom to enter it the cases of soft drinks commenced falling, pouring bottles of soft drink over her so that her arms became overloaded in attempts to catch them as they fell and one of the bottles fell and broke, cutting her foot. The plaintiff testified that as she entered the stockroom the cases of soft drinks started rocking, that they were stacked unevenly. She said also that when the cases fell over they were shaking and uneven and that there were soft drinks missing out of the top cases. The defendant testified that the delivery man stacked the soft drink cases, and in reply to a question from the court further testified as follows:
The trial court in directing a verdict in favor of the defendant stated that there was no definite or positive evidence of negligence on the part of defendant though it was apparent that the cases were stacked improperly. It was the viewpoint of the trial court that there was no indication that any of this improper stacking was done by the defendant or anyone employed by her or anyone with her authorization, from which it would follow logically that the negligence, if any, was on the soft drink people who delivered the drinks. The trial court with evident reluctance, sustained the defendant's motion for a directed verdict.
We have further considered the written opinion of the trial court which it entered upon overruling plaintiff's motion for a new trial. It is evident from this written opinion that the trial court was of the opinion that there had been a failure to show any evidence of negligence on the part of the defendant and that the doctrine of res ipsa loquitur did not apply because the evidence showed that the negligent stacking of the soft drink cases was actually done by the soft drink delivery man.
The parties to this appeal devote substantially all of their...
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Isaacson v. Husson College
...College, 1959, 53 Wash.2d 590, 335 P.2d 458; Eberle v. Benedictine Sisters of Mt. Angel, 1963, 235 Or. 496, 385 P.2d 765; Ferrell v. Hellems, 1966, Ky., 408 S.W.2d 459. Husson College, as the owner and possessor of the campus grounds, owed the student plaintiff whose status was that of a bu......
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Tompkins v. Bonnie Plants, Inc.
...its rationale. See, e.g., Collins v. Newport on the Levee, LLC, 2015 WL 1969409, at *3 (Ky. App. May 1, 2015) (quoting Ferrell v. Hellems, 408 S.W.2d 459, 463 (Ky. 1966)). Kentucky law is clear: a party in control of the premises owes aduty and is "subject to liability to members of the pub......
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Cumberland College v. Gaines
...of a possessor of premises toward an invitee. See Lexington Country Club v. Stevenson, Ky., 390 S.W.2d 137 (1965) and Ferrell v. Hellems, Ky., 408 S.W.2d 459 (1966). However, as pointed out in the annotations just cited, it is generally recognized that proof of the occurrence of the fall do......
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Collins v. Newport On the Levee, LLC
...a premises owner is liable to an invitee for the accidental, negligent, or intentional acts of a third person on the premises. 408 S.W.2d 459, 463 (Ky. 1966). Specifically, Ferrell says: "[W]hen an unsafe condition of the premises is caused by a third person, the plaintiff must show that th......