Shelton v. Aetna Cas. & Sur. Co., 57283

• Court: Supreme Court of Louisiana
• Writing for the Court: CALOGERO
• Citation: 334 So.2d 406
• Parties: Walter SHELTON and Rosa Lee Shelton v. AETNA CASUALTY AND SURETY COMPANY.
• Docket Number: No. 57283,57283
• Decision Date: 21 June 1976

Page 406

334 So.2d 406 Walter SHELTON and Rosa Lee Shelton
v.
AETNA CASUALTY AND SURETY COMPANY. No. 57283. Supreme Court of Louisiana. June 21, 1976.

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Walton J. Barnes, Barnes & Barnes, Baton Rouge, for plaintiffs-applicants.

William A. Norfolk, Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendant-respondent.

CALOGERO, Justice.

This is a suit for damages for personal injury to Rosa Lee Shelton brought by Mrs. Shelton and her husband Walter Shelton against Aetna Casualty and Surety Company, the liability insurer of their son Merle Shelton. Following the filing of this suit, Walter Shelton died and Iris Shelton Ritter, Barney L. Shelton and Lois S. Matherne were substituted as parties

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plaintiffs for the special damages which Walter Shelton claimed as head and master of the community. La.C.C.P. art. 801.

Mrs. Shelton's injury occurred when she slipped and fell in the yard of her son's property. The ownership of the premises and the residences of the parties involved are somewhat unusual. Merle Shelton, the son, owned adjoining Lots 1 and 2 of Square 22 in Standard Heights Subdivision, Parish of East Baton Rouge. His home is located on the front of Lot 1 facing Linwood Street. At the rear of this lot, in a separate structure from the house, is an apartment occupied at the time by Rosa Lee and Walter Shelton, plaintiffs in this suit, under the terms of a usufruct granted them by their son, the owner of the property. Lot 2 is unoccupied except for a wooden garage to the rear of the lot and a concrete driveway leading to the garage. Next to the garage is a garden area, a porch swing hanging from an A-frame and a set of lawn chairs.

The events 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 follows:

'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 (L--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 filed 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 district court concluded that Mrs. Shelton was neither a trespasser nor an invitee, but rather a licensee and that as

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such she was owed a duty of simply being warned of any dangerous conditions which were known to her son. The court then held that Merle Shelton was not liable for his mother's injuries, finding that he had not created a dangerous or hazardous condition calling for either removal of the residue or warning of its existence. The district court, however, did hold that Aetna Casualty and Surety Company was liable for $117.75 in medical payments still outstanding to Dr. McMains and awarded judgment in that amount in favor of the substituted plaintiffs.

The court of appeal affirmed the judgment of the district court with respect to liability for plaintiff's injury. Without specifically denominating plaintiff as either a licensee or an invitee, the court of appeal concluded that, even assuming that Mrs. Shelton was an invitee to whom the higher duty was owed, 'the policy considerations underlying her invitee status would not impose a duty upon this landowner to protect her against the injury complained of.'...