Walker v. Graham

• Decision Date: 04 March 1977
• Docket Number: No. 5838,5838
• Citation: 343 So.2d 1171
• Parties: Barney R. WALKER, Plaintiff-Appellant, v. R. T. GRAHAM et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 1171

343 So.2d 1171

Barney R. WALKER, Plaintiff-Appellant, v. R. T. GRAHAM et al., Defendants-Appellees.

No. 5838.

Court of Appeal of Louisiana, Third Circuit.

March 4, 1977.

Rehearings Denied April 5, 1977.

Writ Refused June 1, 1977.

Franklin & Rothell by David A. Rothell, Shreveport, for plaintiff-appellant.

Plauche, Smith, Hebert & Nieset by James R. Nieset, Lakes Charles, Davis & Simmons by Kenneth N. Simmons, Many, George & George, Ltd., Baton Rouge, Caldwell Roberts, Mayer, Smith & Roberts, Shreveport, for defendants-appellees.

Before WATSON, GUIDRY and FORET, JJ.

FORET, Judge.

This suit was filed by Barney Walker against Trudie Cloud, R. T. Graham and Sidney Sanders for the purpose of recovering damages from them which are alleged to be due to the plaintiff as a result of the contraction by the plaintiff of serum hepatitis, which is alleged to have occurred as a result of the plaintiff accidently puncturing his skin on February 14, 1975, and again March 1, 1975, with hypodermic needles which had been negligently thrown into trash cans at the Allen Sanitarium at Converse, Sabine Parish, Louisiana. The defendants are alleged to have been supervisory employees of the hospital and further alleged to have been negligent in several respects including failure to provide the plaintiff a safe place within which to work, failure to initiate a proper method of disposing of used hypodermic needles, failure to remedy a dangerous situation, and failure to provide the plaintiff with protective clothing. By means of a third party demand the defendants named Dr. John Bagley, M.D and the St. Paul Fire & Marine Insurance Company as third party defendants.

All of the original defendants, and third party defendants have denied any negligence on their part in connection with the plaintiff's injury, and alternatively plead contributory negligence and assumption of risk on the part of the plaintiff as a bar to his recovery.

Defendants, Sanders, Cloud and Graham, allege in their third party petition against Dr. Bagley, that Dr. Bagley was directly responsible for the supervision of the orderlies at Allen Hospital at all times and places pertinent in this lawsuit, and that further he was directly responsible for the initiation and institution of safety programs for the proper disposal of hypodermic needles after they had been used, at all times and places pertinent to this lawsuit.

Dr. Bagley subsequently filed a motion for summary judgment to which he attached an affidavit stating that in January, February and March of 1975, he maintained an office in the Allen Sanitarium, however at no time was he ever responsible for the supervision of orderlies at the Allen Sanitarium, and he was never responsible for the initiation and institution of safety programs for the proper disposal of hypodermic needles after they had been used.

Sanders, Cloud and Graham, the original defendants, then filed an opposition to Dr. Bagley's motion for summary judgment and attached thereto an affidavit contradicting the statements contained in the affidavit of Dr. Bagley. A motion for summary judgment was also filed by defendant Graham, sanders and Cloud alleging that the pleadings and the deposition of plaintiff showed that there was no genuine issue as to material fact, but that even if the defendants could be proved negligent in causing injury to the plaintiff, then the contributory negligence of Barney Walker is so evident that there remains no relevant, genuine issue of fact, and therefore plaintiff should be found contributorily negligent as a matter of law and his suit dismissed.

On August 18, 1976, the trial court rendered a summary judgment in favor of defendants, Graham, Sanders and Cloud, dismissing plaintiff's suit at his costs. Plaintiff has appealed this adverse judgment.

A summary judgment may not be rendered unless the pleadings, depositions, affidavits, and like evidence show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. C.C.P. Arts. 966, 967; State Farm Fire & Cas Co. v. Sentry Indemn Co., 316 So.2d 185 (La.App. 3 Cir. 1975); cases too numerous to cite. It is no substitute for a trial on the merits. All reasonable doubts are resolved against the granting of a summary judgment (Mandella v. Russo, 294 So.2d 598 (La.App. 4 Cir. 1974) even where it may be favored by a preponderance of the evidence. Odom v. Hooper, 273 So.2d 510 (La.1973) (contributory negligence); Kay v. Carter, 243 La . 1095, 150 So.2d 27 (1963).

We are aware of two recent Louisiana Supreme Court decisions dealing with the issue of granting a summary judgment against a plaintiff where defendant alleges that plaintiff was contributorily negligent as a matter of law. The first such case is Odom v. Hooper, supra, decided by the Supreme Court in 1973. Odom involved a suit by a mother for damages for the death of her son resulting from an automobile-train collision wherein plaintiff's son crashed into a stopped, unlighted boxcar, where the defendant's railroad tracks intersected with Broadway Street in the City of Alexandria. The defendants filed a motion for summary judgment. The trial court granted the motion for summary judgment, based on its holding that plaintiff's son was contributorily negligent as a matter of law, and accordingly dismissed plaintiff's suit. Plaintiff appealed, and we affirmed at 257 So.2d 797. On certiorari the Supreme Court reversed and remanded. The Court held that reasonableness and prudence of a deceased driver was a factual matter and must be tried on the merits of the case.

To quote from Odom at page 514:

'It is well established that the existence vel non of contributory negligence is a question of fact, and that the arbiter of such fact is judge or jury. (citations omitted). The rule is that: 'To recover damages for injuries sustained through the alleged fault of another, the fault, and the connection between the fault and the injuries must be shown, with reasonable certainty. There can be no recovery where only the possibility or probability of such fault and...