Great American Insurance Company v. Cutrer
| Decision Date | 11 January 1962 |
| Docket Number | No. 18818.,18818. |
| Parties | GREAT AMERICAN INSURANCE COMPANY, Appellant, v. William E. CUTRER and Lumbermen's Mutual Casualty Company, Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Alvin R. Christovich, New Orleans, La., Christovich & Kearney, A. R. Christovich, Jr., New Orleans, La., of counsel, for appellant.
John W. Anthony, Bascom D. Talley, Jr., Bogalusa, La., Talley, Anthony, Hughes & Knight, Bogalusa, La., of counsel, for appellee.
Before RIVES, CAMERON and BELL, Circuit Judges.
This is another case brought under the Louisiana Direct Action Against Insurers Statute. LSA-R.S. 22:655. Appellee Cutrer filed suit to recover damages for serious injuries suffered when he fell down the exterior steps leading from the sidewalk to the basement of the Pine Tree Inn in Bogalusa, Louisiana, and was joined by Appellee Lumbermen's Mutual Casualty Company, Workmen's Compensation carrier for the employer of Mr. Cutrer, seeking recovery of benefits paid and to be paid Mr. Cutrer. Appellant, defendant below, was liability insurer of Pine Tree Inn Hotel, Inc.
Appellant denied negligence on the part of its assured and alternatively plead contributory negligence on the part of Mr. Cutrer as a bar to recovery. This appeal is from the judgment entered on a jury verdict in favor of appellees.
The facts disclose that the Pine Tree Inn was built more than thirty years ago and that the basement of the building has been in little use until it was remodeled in 1953 into a studio for a radio station. Mr. Cutrer, manager of the radio station located therein was called shortly before 6:00 A.M. on March 5, 1959 by an announcer at the station and advised that he could not find the radio "log." Mr. Cutrer slipped on his trousers over his pajamas, and drove to the station from his home in his automobile in an effort to find the "log." He parked his car in front of the inn on a gravel driveway very near the steps which were to the side of and immediately adjacent to the inn and which led from the sidewalk down to the basement location of the radio station. He was wearing "moccasins" on his bare feet. It had been raining hard during the night but was raining only slightly at the time. The steps had no cover over them. There were eight in number and the first step was slightly more than an inch above the sidewalk. Mr. Cutrer slipped as he stepped on the first step, his feet going out from under him, and he fell on his back to the bottom of the steps, rubbing off two of his fingernails on the concrete wall adjacent to the steps. There was no rail on either side of the steps.
The case was tried on the theory that the assured was not an insurer of the safety of those using the steps but was only required to exercise ordinary care and prudence to keep them in a reasonably safe condition. Lawson v. D. H. Holmes Co., La.App., 1941, 200 So. 163; and DeLatour v. Roosevelt Hotel, Inc., La. App., 1941, 1 So.2d 353. The slippery condition of the top step as compared to the adjacent sidewalk and the lack of a handrail were asserted as negligence by appellees.
The evidence, disputed throughout of course, was that the concrete sidewalk had a rough finish while the surface of the steps including the first step had a steel trowel finish. An expert for appellees gave it as his opinion that stepping from the sidewalk on to the first step while both were wet could be compared to stepping on a spot of ice while walking on the sidewalk because of the difference in the surface of the two. The expert for appellant testified, based on a National Bureau of Standards test conducted by him, that the step was not slippery but on the other hand met recognized safety standards. This witness did not test the sidewalk to show the difference between the surface of the step and sidewalk, other than a place only four inches from the step which he said was worn down through use. The expert for appellee made a coefficient of friction test, using the moccasins worn by Mr. Cutrer in the test as well as a new shoe, and concluded that the coefficient of friction on the side-walk was fifty percent while that of the top step was twenty five percent when both were dry but when wet the coefficient of friction on the sidewalk went up to seventy five percent, while that of the top step dropped down to twenty percent, thus indicating that the top step was almost four times as slippery as the adjacent sidewalk leading up to the step when wet. Appellant's expert attacked the test used by this expert...
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