Scott v. Liebman

• Decision Date: 18 May 1966
• Docket Number: No. A--10939,A--10939
• Citation: 404 S.W.2d 288
• Parties: Morin SCOTT d/b/a Tidelands Motor Inn, Petitioner, v. James LIEBMAN, Respondent.
• Court: Texas Supreme Court

Page 288

404 S.W.2d 288

Morin SCOTT d/b/a Tidelands Motor Inn, Petitioner, v. James LIEBMAN, Respondent.

No. A--10939.

Supreme Court of Texas.

May 18, 1966.

Rehearing Denied June 8, 1966.

Baker, Botts, Shepherd & Coates, R. Gordon Gooch, Houston, for petitioner.

Schwartz & Lapin, Houston, for respondent.

GREENHILL, Justice.

James Liebman brought this action against Morin Scott, doing business as Tidelands Motor Inn in Houston, for personal injuries suffered when Liebman walked through a clear glass sliding door at the Tidelands Motor Inn at night. Trial was to a jury which convicted the defendant of negligence and exonerated the plaintiff of contributory negligence. The trial court, however, rendered judgment for the defendant notwithstanding the verdict upon the basis of one phase of assumed risk: that defendant had breached no duty to the plaintiff. The Court of Civil Appeals sitting at Corpus Christi reversed that judgment and rendered judgment for the plaintiff. 391 S.W.2d 540.

Many of the facts appear undisputed. Mr. Liebman's room at the Tidelands was at ground level and had two entrances. One of the entrances was a sliding glass door. The glass was clear and polished. The lights were on inside the motel room. The lighting outside was subdued. There were no tapes, designs or markings to indicate the presence of the glass. The handle and lock were in the frame of the door. One of plaintiff's witnesses, tendered as a 'glass door' expert, testified that the glass door was one of common design, and that 90% Of sliding glass doors installed at or near the time of the construction of the Tidelands were of that design.

Mr. Liebman and his wife had been at the Tidelands a day or two. He had used the door on several occasions during the day or days they had been there. There was no evidence that he had previously used the glass door at night. But it is undisputed that he knew about the door, knew about the glass, knew how the door was constructed, and knew how it operated. He conceded that he knew that he would be injured if he walked into or though it when it was shut; i.e., he recognized that it would be dangerous to walk into a closed glass door, and he appreciated the danger. The problem is made difficult because it is undisputed that he did not know that the door was closed.

On the occasion in question, Liebman and some business acquaintances and their wives had gone out to dinner and had returned to Mr. Liebman's room at the Tidelands. At about 9:30 p.m., Liebman desired to get a road map and some papers out of his car. He was a nonresident of Texas, and a friend offered to mark his road map for his return trip. The sliding glass door led to the parking area adjacent to Liebman's room. So he opened the glass door, left it open, and proceeded to get his map and papers. Meanwhile, Mrs. Liebman felt chilled; so she shut the glass door. Liebman then proceeded to return to his room; and not seeing the glass door, he walked into it and was severely cut.

We regard the evidence as being undisputed that Liebman did not see the glass door in its closed condition. There is no suggestion that he did see it and nevertheless deliberately proceeded to walk through it anyway. One of the plaintiff's witnesses, a business associate who was on the inside of Liebman's room, testified that he and Liebman were looking at each other, eye to eye, as Liebman returned to the room; and Liebman proceeded as though the door were open.

Pictures introduced into evidence demonstrated that at night with the lights turned on inside the room, it is difficult from the darkened outside to detect the presence of the glass door in a closed position. There was evidence that there was a small amount of imperfection or warping in the glass; but it, too, is not easily detected. In short, this clear glass door in a closed position at night, under the circumstances here present, would not be regarded by us, in an abstract proposition, as an open and obvious danger of which we would charge people with knowledge.

The issues submitted to the jury, and its answers thereto were as follows: the defendant failed to use such appropriate design of the sliding glass door as would have been used by a person of ordinary care, and this was a proximate cause of plaintiff's injury; the plaintiff Liebman did not fail to keep a proper lookout for his own safety; the plaintiff's wife was not guilty of negligence in shutting the sliding door; it was not an unavoidable accident; and the plaintiff's damages were $7,743.30.

The defendant does not have here points of error that there is no evidence to support the answers of the jury. Thus the portions of the trial upon the issues of negligence and contributory negligence ended favorably to the plaintiff. We turn now to the phase of assumed risk mentioned above. The defendant's main position is that since plaintiff had knowledge of the condition (the clear glass door and how it worked), and since the plaintiff conceded knowledge and appreciation of the danger of walking through a closed glass door, the defendant owed the plaintiff no duty. The defendant relies upon A. C. Burton & Co. v. Stasny, 223 S.W.2d 310, Tex.Civ.App.1949, writ refused, and some subsequent opinions of the Courts of Civil Appeals, wherein this Court refused the applications for writs of error with the notation, 'No Reversible Error': Acme Laundry Co. v. Ford, Tex.Civ.App. 284 S.W.2d 745 (1955); Crawford v. Given Bros., Tex.Civ.App., 318 S.W.2d 123 (1958); and Raeburn v. City of Houston, Tex.Civ.App., 346 S.W.2d 488 (1961).

The leading case is Stasny. There an invitee, in the daytime walked out through a fixed plate glass window which was next to a door. The plaintiff had entered the store through the door next to the window. He knew the glass window was there. The opinion says he had 'full knowledge of these facts,' but he forgot about the glass window. On his way out when some 30 feet from the window and the adjacent door, he ducked his head and without looking further walked into the window, broke it, and was injured. Having knowledge of the particular defect, which the court said was open and obvious, as it actually existed when the plaintiff walked into the glass, recovery was denied under the theory that the defendant was under no duty to the plaintiff and consequently had breached no duty to him.

We regard Stasny as being distinguishable. In Stasny, the plaintiff not only knew of the existence of the glass (he stated that he walked around it to enter the store), but he knew that it was in a fixed or closed position through which he could not walk without injury. In Stasny, the glass was a static condition. Here it was not. Here the plaintiff knew of the glass; but there is no proof that he knew of the dangerous condition, to wit, the closed condition of the door. A piece of clear glass at night and under the circumstances here present is not so open and obvious as to require the court to charge a person, who walks through it, with knowledge of its presence. The opinion of the Court of Appeals for the Eighth Circuit in Jiffy Markets, Inc. v. Vogel, 340 F.2d 495 (1965), is persuasive on the invisibility of transparent glass at night as that question relates to 'open and obvious.'

Perhaps Liebman Should have known about, and Should have seen, the closed glass door. Perhaps he Should have ascertained that the door was still open before walking into the room. As indicated, these 'should have known' and 'should have appreciated' issues were the proper subjects of inquiry for the jury by issues of contributory negligence to be followed by issues of proximate cause. No such contributory negligence issues were requested. ¹

Liebman had had some previous exposure to this glass door and its working. He had opened and closed it, and had walked though the entrance a number of times in the day or two he had been at the Tidelands. As stated, the proof is that these were daytime exposures. While it could be argued that after repeated observations and use of the glass door he knew how it looked in a closed position, there were not sufficient exposures at night here to charge him with such knowledge as was done in Wesson v. Gillespie, 382 S.W.2d 921 (Tex.Sup.1964). Moreover, in Wesson the defect was a static condition.

Two of the three poinions by Courts of Civil Appeals previously mentioned are distinguishable upon the same basis as the Stasny case. In Acme Laundry Co. v. Ford, 284 S.W.2d 745, the plaintiff in the daytime walked through a fixed glass window or wall next to a glass door. The evidence is clear that the plaintiff knew about the fixed glass window. The court further stated that 'there was no evidence that at the time of the accident they (the glass panels) were not perceptible.' Since plaintiff knew of the true conditions, it was held that he could not recover. The decision is further buttressed by a holding that as a matter of law, there was no evidence of primary negligence in the construction of defendant's premises.

Similarly, in Raeburn v. City of Houston, 346 S.W.2d 488, the child in the daytime ran through a fixed plate glass panel next to a door. The opinion has, in fact, three grounds for its holding: (1) the court found no evidence of primary negligence on the part of the defendant city; (2) the child 'without due care' ran through the building; i.e., the child was contributorily negligent; and (3) citing Stasny, there had been no breach of duty. As in Stasny, however, the child knew about the condition of the fixed glass (through which he ran) next to the door; but he forgot about it. If Mr. Liebman had closed the door in this case and it had remained closed, and he nevertheless walked back through it, it would more nearly come within the Stasny, Acme Laundry, and Raeburn cases.

The third case mentioned above is Crawford v. Given Bros., 318 S.W.2d 123. As we read the opinion, the basis of the opinion is the absence...