Tewis v. Zurich Ins. Co.

• Decision Date: 09 March 1970
• Docket Number: No. 7926,7926
• Citation: 233 So.2d 357
• Parties: Barry W. TEWIS v. ZURICH INSURANCE COMPANY.
• Court: Court of Appeal of Louisiana — District of US

Page 357

233 So.2d 357

Barry W. TEWIS v. ZURICH INSURANCE COMPANY.

No. 7926.

Court of Appeal of Louisiana, First Circuit.

March 9, 1970.

Rehearing Denied April 13, 1970.

Keogh & Krousel by Joseph F. Keogh, Baton Rouge, for appellant.

Dennis R. Whalen, Baton Rouge, for appellee.

Before LOTTINGER, REID and BLANCHE, JJ. ^*

BLANCHE, Judge.

This is a suspensive appeal from a judgment rendered in favor of plaintiff, Barry W. Tewis, and against defendant, Zurich Insurance Company, for damages in the sum of $15,248, including $248 for medical expenses, with legal interest thereon from judicial demand together with all costs. Plaintiff filed suit against defendant alleging that on February 12, 1966, while he was a lessee of an apartment at the Studio Arms VI Apartments in Baton Rouge, he sustained personal injuries when a concrete slab on which he had stepped slipped from under him causing him to fall. Suit was brought against defendant as the liability insurer of the owner of the premises. From the aforementioned judgment in favor of the plaintiff, defendant perfected this suspensive appeal.

The trial judge adequately summarized the factual situation giving rise to this accident, and his findings of fact and disposition of issues pertaining to liability are reproduced herein as follows:

'In this particular case the plaintiff was a tenant at the Studio Arms apartments in the City of Baton Rouge and on February 12, 1966, he was attempting to go from his apartment to his automobile in the parking lot. He was accompanied by Mrs. Verna Fransen, his date. He left his apartment, went down a staircase which was convenient to his apartment, and upon reaching the bottom proceeded across the sidewalk which was covered by an overhang of the building, and then sought to cross an area between the sidewalk and the parking lot which was composed of earth on what was essentially a slope or slant . Placed upon this few feet of ground were two concrete slabs approximately eighteen by twenty-four inches in size. These had been placed there, according to the testimony of the present manager of the apartment complex, to prevent the erosion of soil. Photographs offered in evidence do show rather substantial erosion and deterioration of this area over a period of time. Also in this area were shrubs spaced around the entire apartment complex. The apartment complex itself contained four levels of apartments and was more or less on a square arrangement. The evidence is not clear as to the exact size, but it would appear that it might be somewhere in the neighborhood of eighty to ninety yards in each direction. From the plaintiff's apartment he could have taken a different exit, that is, down the walkway from the second-floor apartment to an elevator, and he would have gone some thirty feet additional distance had he chosen that particular exit. It was customary, however, for him to park opposite the stairwell that he used and to walk from the parking lot up onto the sidewalk using the aforesaid concrete slabs.

'I believe there was testimony to the effect that the elevators from the stairwell would have been some seventy and ninety yards, respectively, away. This is not to say, as I think I have already explained, that the elevator was that distance from his apartment.

'As the plaintiff stepped onto the second of these concrete slabs, going toward the parking lot, it slipped with him causing him to fall. He did not fall completely to the ground but caught himself or braced himself in some manner as the slab slipped downward and away from him. He had turned, almost simultaneously with this slipping of the concrete slab, to assist his date down the same route. Each of them apparently intended stepping onto these slabs to get to the parking area.

'The testimony shows that prior to that time, at that time, and subsequent thereto as well as at the present time, there are tenants living in this apartment complex who use not only this particular method of gaining entrance to be building but who use other similar arrangements. The exact amount of usage is certainly not clear from the record. Mr. Bates, the present manager, testified that at the time of the incident most of the tenants were relatively young people and that as of today most of them are what might be termed young people.

'The plaintiff takes the position that the concrete slab which caused him to slip is an appurtenance to the principal building, that it is a part of the premises which was defective and which did cause him to fall. The defendant, we understand, takes the position that this is an ordinary slip-and-fall case. I think the distinction here is that it was not the plaintiff who slipped, but it was the concrete slab which itself slipped or moved under his foot. It would appear to the Court that this was defective, that it had been used for this purpose with the knowledge of the owner of the premises, not only by the plaintiff but by other people.

'We might ask ourselves whether or not, due to the weather conditions on the day in question, this particular plaintiff assumed the risk since this area was on an incline and it might be presumed to be more dangerous under these conditions; and, whether this would cause a reasonably prudent person to choose the safer method, that is, walking down the walkway and the use of either one or the other of the two elevators to get to the entrance.

'There is nothing in the record with regard to the lighting conditions at the time of the accident. The accident occurred at approximately six or six-thirty P.M. on February 12th, and in one instance has been described as 'at about dusk.' We think from the evidence there was not that insufficiency of lighting which would be an element in determining any assumption of risk or contributory negligence.

'We are impressed with the fact that the physical design of this building is such as to encourage the use of these steps in traversing the distance between the parking lot and the sidewalk. There are only two regular entrances at two corners of the building, diagonally across from each other. These entrances are by the two elevators in the building. There are, however, staircases which afford an exit down to the ground level at other points. We do believe that the management of the building, knowing that these steps were being used for the purpose of traversing between the parking lot and the building was placed on notice that should the steps not be secured they would likely cause a fall and some resulting injury to one of the tenants.

'We cannot honestly believe that these steps were anything but an invitation to use, being placed as they were in areas in the immediate vicinity of the stairwells as well as around other portions of the building. It is not unreasonable to believe that a tenant of the building would park his automobile in that portion of the lot most convenient to his own apartment and that in so doing would use these concrete slabs that had been placed there by the owner.

'We hold that the slab was, in effect, part of the premises and that placed there in the manner which would permit rain and weather to cause it to move under the foot pressure of a tenant constitutes a breach of the duty owed by the owner to the tenant. The difficult question that we have had to decide in this case is whether or not the use of these steps, under the prevailing weather conditions and considering the physical nature of same, was such as to place the plaintiff on notice that they were dangerous or that they might in some way cause him injury. We do not think so, considering the fact that this plaintiff had used them almost uniformly to gain entrance to his apartment from the parking lot and that other people likewise used them. This, of course, was with the knowledge of the owner--and we say that if the owner did not know this he certainly should have known it. Mr. Bates testified that there are still people using these particular...