Kalopodes v. Federal Reserve Bank of Richmond

• Decision Date: 12 September 1966
• Docket Number: No. 9744.,9744.
• Citation: 367 F.2d 47
• Parties: Christ KALOPODES, Administrator of the Estate of George A. Kalopodes, deceased, Appellee, v. FEDERAL RESERVE BANK OF RICHMOND, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

367 F.2d 47 (1966)

Christ KALOPODES, Administrator of the Estate of George A. Kalopodes, deceased, Appellee, v. FEDERAL RESERVE BANK OF RICHMOND, Appellant.

No. 9744.

United States Court of Appeals Fourth Circuit.

Argued March 5, 1965.

Decided September 12, 1966.

M. Wallace Moncure, Jr., Richmond, Va. (Moncure & Cabell, Richmond, Va., on the brief) for appellant.

James M. Minor, Jr., Richmond, Va. (Joseph B. Bennedetti and Minor, Thompson, Savage, White & Smithers, Richmond, Va. on the brief) for appellee.

Before HAYNSWORTH, Chief Judge, and BOREMAN and BRYAN, Circuit Judges.

HAYNSWORTH, Chief Judge:

George Kalopodes was fatally injured when, at the fifth floor level and in almost complete darkness, he stepped into the ventilating shaft through which air is supplied for air conditioning the building of the Federal Reserve Bank of Richmond. His administrator recovered a verdict in an action for wrongful death, and the Bank has appealed from the judgment, entered on the verdict, contending that the jury could not reasonably have found that Kalopodes was free of contributory negligence.

We think the District Court properly held that it was a question for the jury.

Some understanding of the physical conditions is necessary to an understanding of the problem.

Air is inducted into the Bank building's ventilating system through five copper louvered windows in the south, or Franklin Street, face of the building, one being at each floor level at the second through the sixth floors. Over a period of years, moisture dripping from the copper louvers had discolored stone in the face of the building. In order to remedy that condition, the Bank contracted with N. W. Martin & Brothers, the employer of Kalopodes, to install troughs and drains beneath each of the louvered windows to carry off the copper-stained condensation, preventing its coming in contact with the face stone below. This work required internal access to the louvered windows.

A vertical air shaft runs from the second floor to the roof above the sixth floor. The south wall of the air shaft is not adjacent to the south wall of the building, however, but is separated from it by the third stage of a U-shaped plenum,¹ providing a passageway at each floor level. The third stage of the plenum is the left arm of the U; its second stage, the base of the U, runs along the east wall of the air shaft, while its first stage, the right arm of the horizontal U, runs along the north wall of the shaft.

To reach the copper-louvered intake vents from the interior of the building at any floor level, one must negotiate the plenum's passageway. On the fifth and lower floors, a narrow door gives access to the plenum's first stage. From there, one must proceed to his left until he reaches a facing, sheet metal bulkhead through which a narrow door provides access to the plenum's second stage along the east wall of the air shaft. After passing through that door, one must turn to his right and proceed some ten to fifteen feet along the second stage until another facing bulkhead is reached through which another narrow door provides access to the plenum's third stage and the intake vent for that floor.

The plenum is unlighted. There are no electrical connections in it, though some natural light enters the third stage through the copper louvers, and, when the access door to the first stage is open, light from the adjacent room may enter.

In the sheet metal wall of the air shaft, there are louvered openings permitting an exchange of air between the shaft and the plenum, particularly the movement of air through the louvered windows in the south face of the building through the third stage of the plenum and into the vertical air shaft.

At each floor level, there is also a door in the wall of the air shaft, through which one may enter from the plenum into the shaft itself, though the shaft is unfloored except at its bottom. On the second, third and fourth floors, the door into the shaft is in the first stage of the plenum where it was unlikely to be confused with the door giving access to the plenum's second stage and where there would usually be the benefit of some illumination through the open access door for the first stage of the plenum.

On the fifth floor, however, the door into the shaft was located in the second stage immediately adjacent to the door between the first and second stages of the plenum and in the same plane. The two doors, side by side, are identical when closed, though the door into the shaft opens westwardly while that between the two stages opens eastwardly.

Thus, on a return journey through the plenum, nearing the end of the second stage, one would come to two identical doors, the first of which, when opened by pushing would lead him into the air shaft, the second of which, when opened by pulling, would lead him safely into the first stage of the plenum.

The door into the air shaft had no lock on it. It was secured in no way. It had the same kind of handle as the other door. It was a lethal trap for one groping through the darkness of the plenum's second stage. Kalopodes fell into it.

Kalopodes left his two fellow workers in the third stage of the plenum on the fifth floor on a mission of his own. They had entered with a flashlight and a long extension cord with two sockets, one for a light bulb and another for an electric drill. Kalopodes might have taken the flashlight with him on his return journey, but he did not. He did not expect to return immediately, and, apparently, he felt confident he could negotiate the plenum's second stage on the fifth floor as he had on the floors below. Unaware that on the fifth floor there were two identical doors, side by side, he opened the first one, stepped into the air shaft and fell to his death on the bottom of the shaft, three floors below.

Kalopodes and his two fellow employees of N. W. Martin & Brothers were not entirely unwarned about doors into the air shaft. Wicker, the foreman of the three-man crew, testified that he had been told that there were doors opening into the shaft and to be careful to notice the differences in the construction of the plenum at the sixth floor level. He testified that he had told Smith and Kalopodes of the existence of such doors. Smith confirmed the fact that he had been told of them. Indeed, he had observed such doors on the second and third floors, located in each instance, in the plenum's first stage where it was not likely to be confused with the door, in a different plane, giving access to the second stage of the plenum. Smith testified he did not know whether such doors could be opened, and he and Wicker testified that the door in the shaft on the fifth floor had not been seen or noticed until after Kalopodes had fallen.

Pierce, an employee of the Bank, testified that he told Wicker to be careful, to light the way ahead and behind and, if possible, to go in and out together. He testified he also told Wicker to check each floor to see if there were any differences, calling his particular attention to the sixth floor where the plenum had a fourth stage.

Nicholson, another employee of the Bank, testified he had been present when Pierce told Wicker to be careful. According to Nicholson, Pierce had told Wicker "the doors to the air shaft were different on different floors," that he should always have a light with him and another man, that he should not "back through a door," and that, when opening a door, he should "make sure what is on the other side before you step in."

Nicholson's version of Pierce's warning is more specific than Pierce's, but even it does not contain a specific warning of the highly confusing and dangerous arrangement of the doors on the fifth floor in the plenum's darkest second stage.

It was for the jury to determine from these conflicting versions² exactly what was said. They could have accepted Wicker's version of the warning. They could have accepted Pierce's testimony, which differed from Wicker's only in its advice that certain precautions should be employed. As a description of the extraordinary danger in the second stage of the plenum on the fifth floor, it added nothing to Wicker's version that he had been told there were doors into the shaft and to be careful to observe the different arrangement of the plenum on the sixth floor. Indeed, Pierce corroborated Wicker's testimony about a special caution directed to the sixth floor. He testified to no statement that would suggest that the men would encounter a hazard on the fifth floor that did not exist on the third. The jury could, of course, have accepted Nicholson's testimony. If we should assume that it did we would have a closer case, but, on appeal, we must assume that the jury resolved these factual differences in a manner most favorable to the verdict.

As an employee of an independent contractor, Kalopodes was an invitee while on the Bank's premises.³ Under Virginia law, an owner has a duty to warn invitees of latent dangers on his premises.⁴ And an invitee is not contributorily negligent for not being on the lookout for something about which he has not been warned.⁵ The sufficiency of the warning depends upon such factors as the intelligence and experience of the invitee and the nature of the danger.⁶ A general warning of danger may be insufficient,⁷ and an insufficient...