Martinez v. U.S. Fidelity and Guar.

• Decision Date: 10 February 1982
• Docket Number: No. 11471,11471
• Citation: 412 So.2d 109
• Parties: Pauline MARTINEZ v. UNITED STATES FIDELITY AND GUARANTY and Darrell Ford.
• Court: Court of Appeal of Louisiana — District of US

Page 109

412 So.2d 109

Pauline MARTINEZ v. UNITED STATES FIDELITY AND GUARANTY and Darrell Ford.

No. 11471.

Court of Appeal of Louisiana, Fourth Circuit.

Feb. 10, 1982.

Rehearing Denied April 16, 1982.

Wayne W. Yuspeh, Metairie, and R. Ray Orrill, Jr., New Orleans, for plaintiff-appellee.

Donovan & Lawler, James L. Donovan and C. Suzanne Dittmer, Metairie, for defendants-appellants.

Before SAMUEL, REDMANN and BOUTALL, JJ.

SAMUEL, Judge.

Plaintiff was awarded a $485,000 judgment pursuant to a jury verdict in an executive officer suit ¹ against Waterbury Drugs, Inc. vice president-treasurer Darrell Ford for allegedly breaching his duty of providing her, a Waterbury employee, with a safe place to work and of refraining from assigning her duties which would precipitate a nervous breakdown. Two incidents form the basis of the claim: (1) On February 25, 1975 plaintiff tripped over an electric cord as she arose from her desk; and (2) after returning to work on April 19, 1975, Ford assigned her to unusually heavy duties which precipitated or accelerated a nervous collapse. Defendants, Ford and his liability insurer, United States Fidelity and Guaranty Company, ² have appealed.

The issues before us are whether: (1) plaintiff was contributorily negligent; (2) an inconsistent factual finding of the jury arguably in conflict with its general verdict requires vacating the judgment and remanding for a new trial; and, alternatively, if issues 1 and 2 are resolved favorably to plaintiff; (3) the award for general damages is excessive; and (4) the evidence supports the special damages award.

LIABILITY

At the time plaintiff tripped over the wire, she had been employed by Waterbury for approximately three years. During that interval she had left temporarily and returned. There were electric cords extending from various desks to wall outlets in the office in which she worked. Prior to plaintiff's fall, several other employees had tripped over these cords, and it was general knowledge that from time to time employees had so tripped. Darrell Ford, the Waterbury corporate officer who, at the time of the first incident in suit, functioned as office manager, knew of the prior trippings by other employees, had authority to make any changes needed to remove the hazards, and failed to do so.

Plaintiff was seated at one of three desks arranged in an L shape with her back to the wall some 6 to 7 feet behind her. Another desk, similarly placed to her immediate right, was occupied by Pat Telhorst, who witnessed plaintiff's fall and was the only one to describe it with clarity. A third desk, with its length perpendicular to the same wall, formed the base of the inverted L and made it impossible for plaintiff to emerge from this semienclosed area by walking behind Mrs. Telhorst's desk to her right and thus entering the general office area. Plaintiff had only one exit to her left.

According to Mrs. Telhorst, Ford instructed plaintiff to go to the bank. Plaintiff had a backlog of work and was not accustomed to performing this duty at this time. She expressed irritation, got up from her desk, turned to her left to exit the area, and tripped over the cord of a ten-key adding machine. Because the cord was brown and the floor was the same color, it was difficult to see. As the cord on the machine was not of sufficient length to permit it to stretch flat across the floor between the desk and the wall outlet, at the time plaintiff tripped it was at ankle height.

There was a calculator on the right side of each desk used by plaintiff and Mrs. Telhorst from which cords also stretched across the floor area to the wall outlets, but these were not involved in the fall. Both machines were on the right side of each desk because both ladies were right-handed.

The record fails to explain why the ten-key adding machine was on plaintiff's desk. It was normally kept on a desk which abutted the wall opposite her desk. Ford stated he occasionally used the desk plaintiff occupied the day of her fall when he worked at night. The record further reflects the machine was to plaintiff's left. The adding machine could be moved from desk to desk as it was needed.

There are several steps Ford could have taken to eliminate the trip hazards created by the cords, including moving the desks so that the sides abutted the wall and placing the machines on the edges immediately adjacent to the wall.

As a result of her fall, Mrs. Martinez was away from the office for approximately two months. On April 19, 1975, her first day back on the job, Ford gave her as her first assignment a strenuous job usually given to two people. She was to separate records of Waterbury in storage on the mezzanine area from those of another company, and in order to accomplish this she would be required to move heavy boxes. Normally an office handyman was sent with the employee so assigned and, in his absence, two office workers performed the job. Several coworkers, pointing out plaintiff's nervous state, offered to go in her place. Ford insisted plaintiff go alone. After working in the hot and dusty area several hours, she returned to the office, her clothing soiled by the dust and her manner distraught. Unable to continue, she called her son to drive her home. She did not return to work.

Plaintiff testified she did not understand why Ford made her do this particular work because it was a man's work and he knew she was returning to work on a trial basis. Before Ford became office manager, plaintiff had acted in that position until she left Waterbury the first time. When she returned, at Waterbury's request, her job description was bookkeeper and Ford was her immediate supervisor.

Plaintiff's claim rests on the assertion that Ford breached his duty as an executive officer to provide her with safe work surroundings (R.S. 23:13). Because executive officer liability is determined by general tort principles enunciated in our jurisprudence interpreting the fault concept of Civil Code Article 2315 (Canter v. Koehring Company, La., 283 So.2d 716), the affirmative defense of contributory negligence is appropriate. Miller v. Employers Mut. Liability Ins. Co., La.App., 349 So.2d 1353.

The negligence of Ford in failing to remedy an admittedly unsafe condition is clear. Whether Mrs. Martinez was contributorily negligent is a closer question. In Smolinski v. Taulli, La., 276 So.2d 286, contributory negligence was defined as conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection. The standard of conduct used to measure contributory negligence is determined by reasonableness of behavior under the circumstances.

In executive officer suits, the standard of care imposed on the workman is less stringent than in ordinary cases where contributory negligence is at issue because the employee at times must involve himself in known hazardous endeavors in order to retain his employment. As economic coercion is a factor in determining reasonable conduct by a workman, the standard by which the contributory negligence of an employee is measured in an executive officer suit was defined in Miller v. Employers Mut. Liability Ins. Co., supra, at page 1362, as follows:

"Emerging as criteria for determining an employee's contributory negligence are: (1) relative knowledge of the danger by the supervising employee and the injured employee; (2) relative control over the employee's situation; (3) the degree to which the employee's conduct is voluntary on his part; (4) alternatives available to the employee; (5) obviousness of the danger; and (6) relative ability to eliminate the danger."

Applying the Miller criteria to this case, we note appellants did prove that the existence of trip hazards from electric cords was a fact known to both plaintiff and Ford. Clearly, Ford could have removed the hazard at a minimal cost to Waterbury. Plaintiff did not have the ability to correct the situation by rearranging furniture or installing outlets that would eliminate exposed cords. The authoritarian manner in which Ford operated the office is demonstrated by his assigning plaintiff to heavy physical duty without the customary assistance on her first day back to work. He refused to consider a suggestion of co-employees that they do the job because plaintiff was not well.

Further, appellants failed to prove the wire over which plaintiff tripped was one of which she was aware. The record does not contain an explanation of how the ten-key adding machine was moved to plaintiff's desk from its usual spot on a desk across from where she sat, who moved the machine, and at what time this was done. There is no showing that plaintiff passed this wire daily, and the position of the machine indicates she did not use it because it was to her left and she is right-handed. Nor does the evidence establish plaintiff had an opportunity to see the cord and avoid it. Brown in color, it matched the floor. In arising from her desk, she would have had to look directly down at the floor in order to see the ankle high wire.

Accordingly, our review of the record discloses no manifest error in the jury's finding that plaintiff was not contributorily negligent.

We mention the jury also found the contributory negligence of plaintiff was excused by momentary forgetfulness, which is an apparent contradiction in findings. We quote the questions propounded as they appear in the record:

"5. Was Mrs. Martinez guilty of contriutory negligence?

(Answer yes or no) _No_.

6. Was this contributory negligence excused by Mrs. Martinez's momentary forgetfulness?

(Answer yes or no) _No_.

Application of the momentary forgetfulness doctrine presupposes a finding of contributory negligence, which, in view of our conclusion, need not be discussed. We note that Question 6 seems to require a "yes" or "no" answer. Perhaps it would have been more understandable if Question 6 was prefaced with the phrase, "If...