Louisville and Jefferson County Bd. of Health v. Mulkins

• Decision Date: 23 May 1969
• Citation: 445 S.W.2d 849
• Court: United States State Supreme Court — District of Kentucky
• Parties: LOUISVILLE & JEFFERSON COUNTY BOARD OF HEALTH, Appellant, v. Darlene J. MULKINS, Appellee.

Page 849

445 S.W.2d 849

LOUISVILLE & JEFFERSON COUNTY BOARD OF HEALTH, Appellant, v. Darlene J. MULKINS, Appellee.

Court of Appeals of Kentucky.

May 23, 1969.

As Modified on Denial of Rehearing Oct. 24, 1969.

Fred M. Goldberg, Goldberg & Lloyd, Louisville, for appellant.

Cletus Amlung, Edward F. Rectenwald, Louisville, for appellee.

CULLEN, Commissioner.

Darlene J. Mulkins was employed as a laboratory technician in General Hospital in Louisville, which is operated by the Louisville & Jefferson County Board of Health. She sustained severe burns when as she was handling a glass jug containing nitric acid, the bottom fell out of the jug, with the result that the acid ran onto her legs and feet. She sued the board of health for damages and obtained verdict and judgment for $5,853.00. The board has appealed from the judgment.

The board of health could have elected to operate under the workmen's compensation law, but had not, so under KRS 342.410 it was deprived of the defenses of contributory negligence, assumption of risk and negligence of a fellow servant. Accordingly the issue of liability was simply whether the board was guilty of negligence proximately causing the injury. The plaintiff's primary theory of negligence was that a glass jug, absent a protective covering or special safeguards for handling, is not a reasonably safe container for nitric acid, wherefore the board of health violated its statutory duty under KRS 338.030 to furnish for its employes a safe place in which and safe facilities with which to work.

The evidence was that nitric acid was delivered to the hospital from the manufacturer in five-pint glass jugs, packaged six jugs to a carton, with corrugated cardboard or styrofoam shielding around each jug. Upon receipt at the hospital the jugs were removed from the carton and shielding and placed on shelves in a storage room. About one week before the accident Mrs. Mulkins had obtained a jug from the storage room and placed it in a metal cabinet under a sink in the laboratory room. Her purpose in so doing was to have the acid available for its prescribed use in one of her tasks of washing laboratory glassware.

On the day of the accident Mrs. Mulkins reached into the cabinet to get the jug of acid and as she lifted it out the bottom fell out of the jug. Apparently a crack somehow had developed in the jug which caused a separation when the bottom of the bottle was removed from the support of the shelf on which it had rested and the weight of the acid was thrown against the bottom in the lifting movement.

There was testimony for the plaintiff that in some other hospitals in the Louisville area bottles of nitric acid had been kept in individual metal containers with insulation or cushioning material between the metal and the glass. However, the testimony for the defendant was that all other hospitals in the Louisville area simply used the unprotected glass jugs as the defendant had done.

The primary contention of the board of health on this appeal is that its motions for a directed verdict and for judgment n.o.v. should have been sustained because the competent proof did not show negligence on the part of the board. However, in its argument the board fails utterly to face up to the question of whether a glass jug with no protection against breakage in handling is a reasonably safe container for nitric acid. The board argues that there is no proof of what caused the bottle to be cracked. As we see it, the particular cause of the cracking is irrelevant. The claimed negligence of the board is in furnishing a bottle that was susceptible of being cracked in normal use. The board also argues that the real cause of the accident was Mrs. Mulkin's failure to wear a protective apron. We find no merit in that argument, because obviously the failure to wear the apron did not cause the bottle to break; at the most the wearing of the apron might have limited the extent of the injuries potentially causable by an unsafe bottle, and that is a matter of contributory negligence which the board is barred from asserting.

The board's duty under the 'safe place' statute was to exercise ordinary care to provide reasonably safe instrumentalities. Crush v. Kaelin, Ky., 419 S.W.2d 142. We think that the question of whether a particular instrumentality is reasonably safe should be answered in accordance with the extent of the risk involved, the availability of suitable safety methods, and the practicality and economic feasibility of employing methods designed to insure safety. That is the test that this court evolved for products-liability cases prior to adoption of the strict liability rule. See C. D. Herme, Inc., v. R. C. Tway Co., Ky., 294 S.W.2d 534, and Paducah Coca-Cola Bottling Co. v. Harris, Ky., 316 S.W.2d 128. We...