Masters v. State Farm Ins. Co.

• Decision Date: 05 July 1972
• Docket Number: No. 5047,5047
• Citation: 266 So.2d 508
• Parties: Mrs. Mildred SCOTT, wife of and Lloyd MASTERS v. STATE FARM INSURANCE COMPANY.
• Court: Court of Appeal of Louisiana — District of US

Page 508

266 So.2d 508

Mrs. Mildred SCOTT, wife of and Lloyd MASTERS v. STATE FARM INSURANCE COMPANY.

No. 5047.

Court of Appeal of Louisiana, Fourth Circuit.

July 5, 1972.

Rehearing Denied Oct. 4, 1972.

Joseph J. Laura, Jr., New Orleans, for plaintiff-appellant.

Porteous, Toledano, Hainkel & Johnson, C. Gordon Johnson, Jr., New Orleans, for defendant-appellee.

Before LEMMON, BOUTALL and BAILES, JJ.

BOUTALL, Judge.

The present case comes to us on appeal from a judgment dismissing plaintiff's suit for personal injuries against an insurer on a homeowner's liability policy under the Direct Action Statute, LSA-R.S. 22:665.

The basic facts are uncontested. By the testimony of the injured plaintiff, Mrs. Masters, and coroborated by the insured homeowner, Lloyd Appeal (not a party to the present suit), Mrs. Masters, came to the Appeal home on the morning of January 3, 1970, to inquire as to Mrs. Appeal's health, having heard that she was sick. Mrs. Appeal was a friend and neighbor, living three houses down the street from Mrs. Masters. After a short visit, Mrs. Masters went out the front door, and while talking to Mr. Appeal and traversing the front porch, consisting of a concrete slab, she fell and was injured. There were several electric wires or extension cords, connecting to various Christmas decorations, running across the slab, in the following configuration. A single cord ran from a light fixture over the door, down the door moulding on one side, to the surface of the porch slab. At this point it was fixed by staples to the wall moulding. It extended across the slab to a point near the edge, where it terminated in a three-way socket or plug, to which three cords were plugged in, one to a snowman, and one to each of two candles placed on either side of the sidewalk leading from the porch to the street. These candles were fixed in place by being set over stakes driven into the ground, so that the electric wires were held down tight against the slab. One wire crossed the slab to reach the candle on the opposite side of the sidewalk, and plaintiff alleges that this is what caused her fall.

This wire was admittedly not taped or secured flat to the slab although Mr. Appel testified it was held down tight by the candles being fixed in place. It would not give if caught by the foot, since it was stapled down at the other end. The color of these wires were stated as brown or beige, Mrs. Masters testifying that beige to her was a brown or lighter brown. It is alleged that this color was unnoticeable against the grey concrete, and its color and location constituted a dangerous condition created by the negligence of the homeowner. This condition, it is argued, creates liability to an invitee such as Mrs. Masters, who is injured thereby.

The law of Louisiana in slip-and-fall cases is discussed in detail in the case of Miller v. New Amsterdam Casualty Co., 164 So.2d 676 (La.App.3rd Cir., 1964) writs refused 246 La. 842, 167 So.2d 668 (1964). Appellant cites to us a group of cases in which foreign objects were allowed to remain in aisles of stores, such as a painter's cloth, Lindsey v. Travelers Indemnity Co., 111 So.2d 153 (La.App.2nd Cir., 1959); a projecting platform, Robnett v. Great American Ins. Co. of New York, 187 So.2d 152 (La.App.2nd Cir., 1966); banana juice, Singleton v. Foodtown, Inc., 195 So.2d 439 (La.App.3rd Cir., 1967); okra, Lang v. Winn-Dixie Louisiana Inc., 230 So.2d 383 (La.App.1st Cir., 1969). Recovery in these cases is based on the theory that the aisles of a store are meant to be kept clear at all times for constant free passage, since the invitees, customers, are not expected to look at the aisle floors, but are meant to be distracted by merchandise on the shelves. In other situations, the invitee is held to be contributorily negligent when the condition causing the fall is obvious and discoverable and the invitee through inattention does not discover it. Miller v. New Amsterdam Casualty Co., supra; Salim v. United States, 382 F.2d 240 (U.S.C.A.5th Cir., 1957); Alexander v. General Accident Fire & Life Assurance Corp., 98 So.2d 730 (La.App.1st Cir., 1957).

In the present case, Mrs. Masters admitted that, previously, on entering the house through the same door by which she left, she saw the wires running over the porch near the entrance and saw the decorations and 'extension cords running everywhere'. The cord was obvious enough for her to notice, as she noticed it on the way in while concerning herself with the health of Mrs. Appeal, her friend; not only should she have noticed it again on the way out, but she had knowledge that it was there. The facts are thus distinguishable from those in Brown v. State Farm Fire & Casualty Co., 252 So.2d 909 (La.App.2nd Cir., 1971), urged to us by appellant, since in that case the invitee tripped over a rock left on the steps in the darkness and had not passed that way previously. The rock was thus a hidden danger in the nature of a trap or pitfall, and the invitee had no knowledge of its presence.

We note that Mrs. Masters in her testimony stated that she was looking where she was going when she fell, but did not see the cord. However, she testified, that as she exited the door, Mr. Appeal was talking to her and she turned around to face him and talk to him, and then turned to go and fell. Later, she testified that she was walking while talking, looking behind her at Mr. Appel, and indicates a great lack of attention on her part as to where she was going. Indeed, counsel for appellant in his argument acknowledged this, stating that the situation comes under the doctrine of 'momentary forgetfulness' as espoused in the case of Hill v. Lundin & Associates, Inc., 243 So.2d 121 (La.App.1st Cir., 1970). We note that there is a rather strong dissent in that case by Judge Sartain, who would hold the doctrine inapplicable, and also that the Supreme Court granted a writ of review, 257 La. 983, 244 So.2d 856, and reversed on grounds of liability, 260 La. 542, 256 So.2d 620 (1972), pretermitting discussion of the application of the 'momentary forgetfulness' doctrine in rather desultory language.

In that case, a woman in running to prevent a small child from tripping over a ladder, hurried to intercept him and fell over the ladder herself. The court of appeal held this to be in the nature of a 'sudden emergency' and as such, a bar to the plea of...