Phillips v. Morton Frozen Foods

• Decision Date: 25 May 1970
• Docket Number: No. LR-69-C-230.,LR-69-C-230.
• Citation: 313 F. Supp. 228
• Parties: Matt PHILLIPS, Plaintiff, v. MORTON FROZEN FOODS, Division of ITT Continental Baking Company, Inc., Defendant.
• Court: U.S. District Court — Eastern District of Arkansas

313 F. Supp. 228

Matt PHILLIPS, Plaintiff, v. MORTON FROZEN FOODS, Division of ITT Continental Baking Company, Inc., Defendant.

No. LR-69-C-230.

United States District Court, E. D. Arkansas, W. D.

April 27, 1970.

Supplemental Opinion May 25, 1970.

COPYRIGHT MATERIAL OMITTED

H. Clay Robinson, of Pearce, Robinson, McCord & Maurras, Ft. Smith, Ark., for plaintiff.

Robert S. Lindsey, of Wright, Lindsey & Jennings, Little Rock, Ark., for defendant.

S. Hubert Mayes, Little Rock, Ark., for intervenor.

OPINION

JOHN E. MILLER, Senior District Judge (Sitting by Designation).

This is an action by which the plaintiff, Matt Phillips, seeks damages from defendant, Morton Frozen Foods, resulting from personal injuries sustained by plaintiff in a fall which occurred at defendant's plant at Russellville, Arkansas, on November 7, 1965.

Maryland Casualty Company, the workmen's compensation carrier for plaintiff's employer, has filed a motion to intervene in the present action in order to claim its statutory lien on the proceeds of any recovery herein.

The court has jurisdiction by virtue of diversity of citizenship and the amount in controversy.

Plaintiff contended that he was a business invitee on the premises of defendant and that defendant had a resulting duty to use ordinary care to make its premises reasonably safe and to warn plaintiff of latent hazardous conditions, both of which defendant, having full knowledge of such a latent hazardous condition, failed to do. Defendant, on the other hand, denied knowledge of the existence of a hazardous condition, and contended that plaintiff was contributorily negligent and/or assumed the risk of his own injuries. The cause was tried to the court on March 3, 1970.

The following shall constitute the findings of fact and conclusions of law of the court, as contemplated by Rule 52(a), Fed.R.Civ.P.

At the time of the accident, plaintiff was employed by Spickes Brothers Painting Company, which by subcontract was engaged in painting defendant's newly constructed plant in Russellville, Arkansas. On Friday, November 5, 1965, plaintiff's foreman, as was the custom, gave plaintiff and a co-worker instructions regarding work to be completed during the week end. Because of government regulations with respect to food processing, it was necessary to undertake construction and painting work in production areas at times when no food was being handled. On the day of the accident, a Sunday, plaintiff was engaged in painting work in a production area as previously instructed by his foreman, when he was requested by defendant's project engineer to paint some fluid lines attached to quick freezing units in another area of the plant. The project engineer showed plaintiff only the "south bank" or cluster of freezing units, and from ground level pointed out the pipes or lines that required painting. Plaintiff was, however, instructed to paint all such lines that required painting. Almost all of the fluid lines on the units in the south bank were located along the upper edge of the units and could be reached by standing on a conveyor line which ran alongside. After completing work on these units, plaintiff moved to the "north bank" in order to determine whether any lines in that area needed paint. The fluid lines attached to the north bank units ran horizontally over the top and could not be seen from floor level, nor could they be reached by standing on the conveyor. Plaintiff climbed onto a conveyor line at the west end of the north bank units, then stepped onto a "sevice shelf" attached to the end unit, and from there climbed onto the top. He spent approximately fifteen minutes on top of the units, stepping from one to the other, while looking for fluid lines needing paint. After painting two or three short lines, he returned to the west end of the unit cluster, approximately at the point where he climbed onto the top. Plaintiff then got down on his knees at the edge of the end unit and lowered his paint bucket onto the service shelf; he then rose and began to turn around in order to face the freezing unit climbing down. While turning around, his right foot began to slip, and he fell from the top of the unit to the floor, a distance of eight feet, sustaining injury. After the fall, plaintiff noticed an oily substance resembling hydraulic fluid on his right shoe, which he testified was not on the shoe before he mounted the freezer unit. Within a few minutes after the accident, plaintiff's co-worker climbed to the top of the unit from which he fell in order to determine the cause, and discovered a pool of oil on the west side of the unit.

It is well settled in Arkansas that an owner of premises is required to exercise ordinary care to keep the premises reasonably safe for all invitees. Little Rock Land Co. v. Raper, (1968) 245 Ark. 641, 433 S.W.2d 836; Davis v. Safeway Stores, Inc., (1937) 195 Ark. 23, 110 S.W.2d 695. Premises that are "reasonably safe" do not contain hazardous conditions or obstructions that may result in injury to an unsuspecting invitee. An owner of premises may avoid liability by providing timely notice of latent dangerous conditions of which he is, or reasonably should be, aware. Dixon v. United States, (8 Cir. 1961) 296 F.2d 556; St. Louis, I. M. & S. Ry. Co. v. Dooley, (1906) 77 Ark. 561, 92 S.W. 789. An owner is, however, liable regardless of his lack of knowledge of the defective condition if it was also unknown to an injured invitee exercising ordinary care for his own safety, where the surrounding circumstances are such that the owner could and would have known of the dangerous condition had he exercised reasonable care and foresight for the safety of those who might come upon his premises by invitation, express or implied. Faulkinbury v. Shaw, (1931) 183 Ark. 1019, 39 S.W.2d 708.

It is clear that plaintiff was on defendant's premises by invitation. Spickes Brothers Painting Company was a painting subcontractor actively engaged in work on the inside of defendant's plant. It is undisputed that painting work in production areas was, of necessity, performed on week ends and other times when food was not being handled. Moreover, defendant's project engineer specifically requested that plaintiff paint the freezing unit fluid lines on the day of the accident.

Defendant must also be charged with knowledge of the continual presence of oil or other fluid on surfaces of and around the freezing units. A maintenance foreman for defendant prior to and at the time of the accident testified that oil was constantly present on the floor as well as the freezer units as a result of expansion, leakage and condensation connected with the operation of the units; he termed the condition "hazardous" and stated that it was particularly bad on week ends during the freezer defrost cycle. Defendant candidly admitted that, prior to the accident, spillage and leakage of fluid in the freezing units occurred on a daily basis, probably as a result of lines breaking, pumps operating improperly, the changing of components, and other causes. Plaintiff's co-worker testified that, prior to the accident, he had occasionally observed oil and other fluid on top of the freezing unit from which plaintiff fell, but that the substance was commonly cleaned up by those working on the units.

It is, therefore, quite clear that defendant was aware of the presence of the fluid and that the condition became acute on week ends. Reasonable men would also conclude that the presence of pools of oil or other fluid on surfaces traversed by workmen constitutes a hazardous condition. Under those circumstances, the failure of defendant to adequately correct or remedy the situation was negligence which was a proximate cause of plaintiff's injuries. Defendant, through its project engineer, was well aware that plaintiff was working in the area of the freezing units on the day of the accident. It appears that it would have been difficult, perhaps unreasonably difficult, to completely eliminate the leakage of fluid, but defendant's cleaning and maintenance personnel, in the exercise of ordinary care, could have maintained areas in use by workmen in a reasonably safe condition.

Nor can the court accept the contention of defendant that plaintiff assumed the risk of his injuries. The doctrine of assmption of risk is not favored by the Arkansas Supreme Court, Spradlin v. Klump, (1968) 244 Ark. 841, 427 S.W.2d 542, and involves both knowledge and appreciation on the part of the plaintiff of the hazard, Mercury Mining Co. v. Chambers, (1937) 193 Ark. 771, 102 S.W. 2d 543; Carroll v. Lanza, (E.D.Ark.1953) 116 F.Supp. 491, affirmed in part and reversed in part, Lanza v. Carroll, (8 Cir. 1954) 216 F.2d 808, reversed (1955) 349 U.S. 408, 75 S.Ct. 804, 99 L.Ed. 1183, and can only be applied in cases where the person may reasonably elect whether he shall expose himself to it. Chicago, R. I. & P. Ry. Co. v. Lewis, (1912) 103 Ark. 99, 145 S.W. 898. In master and servant cases, it has been generally held that an employee assumes all the ordinary risks and hazards incident to his employment and those which are open and obvious. Hall v. Patterson, (1942) 205 Ark. 10, 166 S.W.2d 667; Lee v. Pate, (1939) 198 Ark. 723, 131 S.W.2d 8; M. E. Gillioz, Inc., v. Lancaster, (1938) 195 Ark. 688, 113 S.W.2d 709. An employee does not, however, assume any hazard that is the result of either the master's negligence or the negligence of any other employee unless he is aware of the danger and appreciates it. Walther v. Cooley, (1955) 224 Ark. 1027, 1031, 279 S.W.2d 288; Haynes Drilling Corp. v. Smith, (1940) 200 Ark. 1098, 143 S.W.2d 27; Federal Compress & Warehouse Co. v. Harmon, (1938) 196 Ark. 417, 118 S.W.2d 239; Carson v. Dierks Lumber & Coal Co., (1938) 196 Ark. 163, 117 S.W.2d 39.

In all cases, it is necessary that the defense of assumption of risk be proved by a preponderance of the evidence, Sun Oil Co. v. Hedge, (1927) 173 Ark. 729, 293 S.W. 9...