Genell, Inc. v. Flynn

Citation358 S.W.2d 543,163 Tex. 632
Decision Date20 June 1962
Docket NumberNo. A-8592,A-8592
PartiesGENELL, INC., Petitioner, v. Rory FLYNN et al., Respondents.
CourtSupreme Court of Texas

Bailey & Williams, Dallas, for petitioner.

Woodruff, Hill & Bader, Dallas, for respondents.

SMITH, Justice.

Charles H. Flynn, individually, and in behalf of his seven year old daughter, Rory Flynn, filed this suit for damages against Genell, Inc., a corporation, and Southern Oak Apartments, Inc., a corporation, alleging injuries sustained by Rory Flynn on June 21, 1959, as the result of the negligence of both corporations. Southern Oak Apartments, Inc. was later dismissed from the suit and the case proceeded to trial as between the named plaintiffs and the defendant, Genell, Inc. For convenience the parties will hereinafter be designated either as plaintiffs, defendant, or by name.

The defendant was the manager and operator of a group of apartments (504 units) in the City of Dallas, known as Park Forest Apartments. Rory Flynn and her parents were living in one of the units of Park Forest Apartments at the time of the alleged accident.

The facts are stated in plaintiffs' and defendant's briefs. The pertinent facts are these: Rory Flynn, at the time of the accident, was seven years of age and was a child of above average intelligence. On June 21, 1959, she had been playing in the general area of the apartment where she lived, but sometime that afternoon decided that she would like to go play with a friend, Pamela McCullum, who lived upstairs in a unit apart from that in which Rory Flynn and her parents lived. Pamela was older than Rory. When Rory was informed by Pamela's mother that her daughter could not play, Rory left the Pamela McCullum apartment unit and returned downstairs by walking down the same stairs, which she had gone up, holding on to the rail and walking fast. When she reached the second from the bottom stair she stopped and leaned over toward the door to push on the door in order to make her exit. She testified that she intended to push on the wooden part of the door but as she leaned over she missed (the wooden part) and her arms went through the glass. The record shows that the injuries she sustained were confined to the arms and were caused by the broken glass. The door Rory was using was the back door to the Pamela McCullum apartment. Rory's mother testified that she had been through this particular back door a few times and that the door was 'awfully' heavy and difficult for her to open. The father, Charles Flynn, had never had occasion to use the door prior to the accident, but, after the injury, he had tested the door and found it was hard to push open. Rory testified to facts showing that she was aware of the fact that the door which she pushed open was difficult to open. She stated that the door would not close entirely and could be pushed open without the necessity of turning the door knob. Rory had used this method before in opening this particular door. In fact, she had been taught by her friend, Pamela, how to open the door in this manner, and she testified: 'We just did it because it was easier to open that way.' She testified further that on previous occasions when she opened the door she had not pushed upon the glass. Rory and her parents testified that they did not know anything about the strength of glass, had made no inquiry about glass, and as laymen could not look at the glass in the door and tell its relative strength.

Carl O'Neal, a structural engineer, testified in regard to single strength glass. He further testified that the door closer in the condition that it was in would not latch the door; it came almost closed but it would not latch; that the door was quite hard to open; that it was more than normally hard to open and he further testified that there was definitely something wrong with the door closer; that a door closer which failed to latch the door is not functioning properly.

The witness, William C. Willis, who designed a replica, which was introduced in evidence, of the door and the stairs leading to it, testified that the landing was twenty-five inches in width, measuring from the nose of the first tread to the door, and the dimensions of the stairs were: 'seven and a half inch risers and eleven and a half inch treads'.

The manager of the apartment, Don Carter, testified that all the back doors were about alike and what he would term heavy doors; that it was his duty to replace broken glass or have it done and that on Monday, following the Flynn accident which occurred on Sunday, he inspected the door and found that the glass had been replaced in the door. He further testified that the door closers were placed on the doors in early 1955 when the apartments were constructed; that he had no inspection of the door closers made to see if they were working properly. Carter testified that no complaints were made as to the door closers on any of the doors and that he did not inspect them; that no complaint had been made as to this particular door closer and that he did not know whether this particular door would close or not. Much of Carter's testimony, both on cross and redirect examination, was in answer to questions pertaining to the type of glass in the doors and the putty holding the glass in place.

The Flynns alleged a number of acts of commission and omission constituting negligence on the part of Genell, Inc., and that each act was a proximate cause of Rory Flynn's injuries. However, only three of such acts were submitted to the jury for determination. The jury, in answer to the special issues involving the grounds of negligence inquired about, found that (1) Genell, Inc. maintained a glass that was loose in the frame of the door in question, but that such act was not negligence; (2) that Genell, Inc., maintained single strength glass in the door in question and that such act was negligence, but was not a proximate cause of the accident and resulting injuries sustained by Rory Flynn; (3) that Genell, Inc., on the occasion in question, maintained an adjustment on the door closer that made the door in question difficult to open and that such conduct was negligence and a proximate cause of the injuries sustained by Rory Flynn. The jury made these additional findings: (a) that Rory Flynn was not negligent in any manner proximately causing the accident; and (b) that the occurrence in question was not the result of an unavoidable accident.

Based upon the jury finding that the damages involved were proximately caused by Genell, Inc. maintaining a door closer upon the door in question in such a way as to make the door difficult to open, and the jury findings awarding damages to each of the Flynns, the trial court entered judgment for the Flynns. The judgment has been affirmed by the Court of Civil Appeals. 348 S.W.2d 196.

This appeal presents four basic questions, either of which, if sustained, would require a reversal of the judgment of the trial court and the Court of Civil Appeals and the...

To continue reading

Request your trial
62 cases
  • Valdez v. Church's Fried Chicken, Inc.
    • United States
    • U.S. District Court — Western District of Texas
    • March 30, 1988
    ...e.g., Boles v. La Quinta Motor Inns, 680 F.2d 1077 (5th Cir. 1982); Nelson v. Krusen, 678 S.W.2d 918 (Tex.1984); Genell Inc. v. Flynn, 163 Tex. 632, 358 S.W.2d 543 (1962). With this background the Court can now turn to the specific items of damages which may be recoverable in this case. Pla......
  • Parker v. Highland Park, Inc.
    • United States
    • Texas Supreme Court
    • February 8, 1978
    ...and to discover dangerous conditions. Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 20 A.L.R.2d 853 (1950); Genell, Inc. v. Flynn, 163 Tex. 632, 358 S.W.2d 543 (1962). His duty is to protect his invitees from dangers of which he, the occupier, knows, or (because of his duty to inspect) of ......
  • Abalos v. Oil Development Co. of Texas
    • United States
    • Texas Supreme Court
    • November 24, 1976
    ...and to discover dangerous conditions. Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 20 A.L.R.2d 853 (1950); Genell, Inc. v. Flynn, (163) Tex. 632, 358 S.W.2d 543 (1962). His duty is to protect his invitees from dangers of which he, the occupier, knows, or (because of his duty to inspect) o......
  • Texas Brine Corp. v. Lofton
    • United States
    • Texas Court of Appeals
    • April 11, 1985
    ...Pacific Railroad v. American Statesman, 552 S.W.2d 99 (Tex.1977); Clark v. Waggoner, 452 S.W.2d 437 (Tex.1970); Genell, Inc. v. Flynn, 163 Tex. 632, 358 S.W.2d 543 (1962); Houston Lighting & Power Company v. Brooks, 161 Tex. 32, 336 S.W.2d 603 In Biggers v. Continental Bus System, 157 Tex. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT