Shelton v. Aetna Cas. & Sur. Co.
| Decision Date | 18 September 1975 |
| Docket Number | No. 10401,10401 |
| Citation | 322 So.2d 308 |
| Parties | Walter SHELTON and Rosa Lee Shelton v. AETNA CASUALTY AND SURETY CO. |
| Court | Court of Appeal of Louisiana — District of US |
Walton J. Barnes, Baton Rouge, for appellant.
Wm. A. Norfolk, Baton Rouge, for appellee.
Before LANDRY, BLANCHE and BAILES, JJ.
Plaintiff-appellant, Rosa Lee Shelton, 1 appeals a judgment of the Nineteenth Judicial District Court denying her claim for damages against the defendant-appellee, Aetna Casualty and Surety Company.
Merle Shelton, who was insured by defendant Aetna, hereinafter sometimes referred to as 'property owner,' owned Lots 1 and 2, Square 22, Standard Heights Subdivision, East Baton Rouge Parish. His home is located on Lot 1 facing Linwood Street, and on the rear of the lot facing Chippewa Street is an apartment which was occupied by his elderly parents, Walter and Rosa Lee Shelton. The elder Sheltons occupied the apartment under a usufruct granted by their son.
Upon the contiguous Lot 2 is located a wooden garage, concrete driveway, garden area, a porch swing hanging from an A-frame, and a set of lawn chairs. This area was used extensively by the elder Sheltons and their friends and neighbors.
Early in the morning on June 3, 1973, property owner mixed a solution of lime, baking soda and water for the purpose of removing some flaking paint from the garage. After brushing the solution on the side of the brown-painted garage, he washed it down with a hose and departed at approximately 10:00 A.M. for the remainder of the day.
At approximately 6:00 P.M. that same day the elder Mrs. Shelton exited her apartment on Lot 1 and proceeded across the driveway toward the swing area on Lot 2 to sit and converse with her husband and another elderly friend, Mr. Edmond C Lively. As the seventy-one year old mother reached the far edge of the concrete driveway and stepped upon the dirt pathway leading to the swing, her feet allegedly slipped on the residue which was washed from the garage, and she landed heavily in a sitting position. She was immediately transported to the Baton Rouge General Hospital where she was confined for the next eleven days suffering from a compression fracture of the spine at the fourth lumbar level (1--4). After discharge from the hospital, Dr. F. C. McMains, an orthopedic surgeon, continued to care for her as she still experienced radiating leg pains and required a back support. She was left with a 15 percent permanent residual disability of the body as a result of the fall.
Mrs. Shelton testified that she did not notice anything unusual about the surface of the ground, either before or after she fell, but that some 'goo' clung to her dress following the mishap. She acknowledged that she was familiar with and frequented the area with her husband. She also acknowledged that the spot where she slipped had been filled with fresh dirt prior to the incident. She, as well as Mr. Lively, asserted that the residue from the garage had formed a foamy substance which, because of the brown color of the paint being removed, could hardly be distinguished from the ground itself. Mrs. Shelton contended that because of the slippery nature of the substance and its camouflaged color she sustained the injuries of which she complained.
It is also clear from the record that the property owner knew that the area immediately adjacent to the garage was regularly used by his mother and father. It also appeared that the property owner did not attempt to clean or barricade the area to prevent persons from coming in contact with the removed paint and residue.
The trial judge concluded that Mrs. Shelton was a licensee upon her son's property, Lot No. 2, and, therefore, his duty was to warn her of known dangers only, citing Mercer v. Tremont and Gulf Railway Company, 19 So.2d 270 (La.App.2nd Cir. 1944), writ denied but unreported, October 3, 1944. The judge then stated:
(Written Reasons for Judgment, Record, p. 25)
The court found that the insurer Aetna provided for medical payments in the event of injury upon the insured's premises, and as $117.75 still remained outstanding to Dr. McMains, the court awarded judgment in favor of the plaintiffs, Iris Shelton Ritter, Barney L. Shelton and Lois Shelton Matherne, for that amount plus legal interest from date of judicial demand until paid. The expert witness fee of Dr. McMains was set at $75 and taxed as costs to the defendant.
The plaintiff contends the trial court erred in holding that Mrs. Shelton was a licensee rather than an invitee and consequently that the property owner owed a duty to reasonably inspect the premises and make it safe for her presence. Plaintiff also contends it was error to find that there was no negligence on the part of property owner which would lead to liability for the injuries complained of.
Ever since Dixie Drive It Yourself System v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962), and Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972), the courts of Louisiana have been applying the 'duty-risk' approach to determine the existence of liability. It was first applied to duties imposed by statute in Dixie, and later to duties imposed by judicial edict in Hill. This same analysis has been utilized to determine a landowner's liability to his invitee in Stewart v. Gibson Products Co. of Natchitoches Parish Louisiana, Inc., 300 So.2d 870 (La.App.3rd Cir. 1974).
The first step in the duty-risk analysis is to make a determination of the cause in fact of the harm or injury. It has not been seriously contested that the presence of the 'goo' which was created when the paint remover was applied to the garage and subsequently washed off was not a cause in fact of the injury to the plaintiff. This alone, however, does not establish liability. Additionally, it is necessary to ascertain whether the property owner breached a legal duty owed to the plaintiff. In the instant case, we think there was no breach of duty.
Utilizing the hindsight test of Hill, supra, we find that the instant injury was foreseeable, as evidenced by the fact that it did indeed happen. But as was aptly expressed in Stewart v. Gibson Products Company of Natchitoches Parish Louisiana, Inc., '. . . Just because a risk may foreseeably arise by reason of conduct, It...
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Shelton v. Aetna Cas. & Sur. Co.
...leading up to Mrs. Shelton's fall and injury were succinctly set forth in the court of appeal decision, Shelton v. Aetna Casualty and Surety Co., 322 So.2d 308 (La.App.1st Cir. 1975), and are repeated here, as 'Early in the morning on June 3, 1973, property owner mixed a solution of lime, b......
- Shelton v. Aetna Casualty & Surety Co.