Hunt v. City Stores, Inc.
| Decision Date | 11 September 1979 |
| Docket Number | No. 10154,10154 |
| Parties | Jerry HUNT, Individually and as the Administrator of the Estate of his minor son, David Hunt, v. CITY STORES, INC. d/b/a Maison Blanche, Otis Elevator Company Travelers Insurance Company and Commercial Union Assurance Company. |
| Court | Court of Appeal of Louisiana — District of US |
Levenson & Bonin, Paul A. Bonin, New Orleans, for plaintiff-appellee.
James J. Morse and Frank J. Achary, New Orleans, for City Stores, Inc., d/b/a Maison Blanche and Travelers Ins. Co., defendants-appellants.
James H. Drury and Steven M. Lozes, New Orleans, for Otis Elevator Co. and Commercial Union Assur. Co., defendants-appellees.
Before SAMUEL, BOUTALL and BEER, JJ.
Plaintiff filed this suit, individually and as administrator of the estate of his minor son, David Hunt, against City Stores, Inc. that defendant's liability insurer, Travelers Insurance Company, Otis Elevator Company, and Otis' insurer, Commercial Union Assurance Company, seeking to recover damages sustained as a result of an injury to David while on a descending escalator on the premises of City Stores' Maison Blanche department store located in the Lake Forest Plaza Shopping Center in New Orleans.
The defendants answered, denying liability, and averring contributory negligence on the part of David. In addition, City Stores and its insurer filed a third party demand against Otis Elevator for indemnity or contribution and a similar demand against the boy's mother, Mrs. Hunt.
After a trial on the merits, there was judgment in favor of plaintiff, both individually and in his representative capacity, against City Stores and Travelers. The judgment dismissed plaintiff's demand against Otis and Commercial Union and the third party demand by City Stores and Travelers against Otis Elevator. The judgment is silent with regard to City Stores' third party demand against Mrs. Hunt. City Stores and Travelers have appealed.
In this court appellants contend: (1) the trial court erred in granting a judgment against appellants in that there is no liability on the part of appellants; (2) alternatively, the trial court erred in failing to grant appellants' third party demands against Otis Elevator and Mrs. Hunt; and (3) also alternatively, the trial court abused its discretion in awarding $5,000 in general damages, an excessive amount for the injuries sustained by David.
The record reveals David, then 12 years old, had gone with his mother, grandmother, and younger brother and sister to defendant's store at the Lake Forest Plaza Shopping Center in May, 1976. He was riding an escalator down to the first floor with his mother when the front portion of his right tennis shoe was caught in the space between the moving tread and the escalator's left side wall. David testified he was standing sideways on the escalator watching streamers which were hung by City Stores as a form of decoration. His testimony is vague with regard to the manner in which the tennis shoe became lodged in the escalator, but he said he did not play or otherwise misbehave while riding down.
David's mother testified she was with him when the accident occurred. While she did not see his foot become caught in the escalator, she stated his right foot was caught in the space between the left side wall of the escalator and the moving tread. David's grandmother also did not see his foot become caught in the escalator.
John Trahan, the Otis Elevator maintenance man whose territory included the escalator in question, testified he examined the escalator during the week of the accident as part of his duties under a maintenance contract between Otis Elevator and City Stores. He testified the space between the moving treads and the side wall of the escalator was 3/16 of an inch, which is less of an opening than that allowed by the National Safety Code for escalators.
Defendants also produced the testimony of David Steel, a designer of escalators for Otis Elevator Company. He testified it is impossible to completely close the space between the side wall and the moving tread. He also testified it is impossible for the escalator to move laterally. Another defendant witness, Roger Harris, who was qualified as an expert in escalator maintenance, agreed it was impossible for the escalator to move laterally. Harris further testified that within approximately one week after the child's foot was injured he personally measured the clearance between the left side wall and the tread and found it was between 1/16 and 3/16 of an inch.
We conclude the result of this case is controlled by the recent decision of the Supreme Court of Louisiana in Marquez v. City Stores Co., 1 which involved a similar injury to a 31/2 year old child on the same escalator as the one here involved but approximately three months earlier. The Marquez child was descending the escalator with his father when the tennis shoe on the child's left foot was caught between the escalator's moving tread and the adjacent side panel. In Marquez, as here, there was a contract between City Stores and Otis Elevator under which the latter installed, maintained and serviced the Otis escalator and, also as here, there was a third party demand by City Stores against Otis Elevator.
In Marquez the Supreme Court held City Stores responsible for the injury on the strict liability theory pronounced by...
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