Williams v. Employers Liability Assurance Corp., Ltd.

• Decision Date: 17 November 1961
• Docket Number: No. 18340.,18340.
• Citation: 296 F.2d 569
• Parties: Philomena Grace WILLIAMS, Appellant, v. EMPLOYERS LIABILITY ASSURANCE CORPORATION, LIMITED, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

296 F.2d 569 (1961)

Philomena Grace WILLIAMS, Appellant, v. EMPLOYERS LIABILITY ASSURANCE CORPORATION, LIMITED, Appellee.

No. 18340.

United States Court of Appeals Fifth Circuit.

November 17, 1961.

John W. Bryan, Jr., New Orleans, La., for appellant.

James H. Drury, New Orleans, La., for appellee.

Before TUTTLE, Chief Judge, and BROWN and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

This appeal raises a bizarre question bearing on absolute liability. Article 177 of the Louisiana Civil Code imposes liability on the master of a house for things thrown out of the house. The question for decision is the applicability of Article 177 to an action against the owner and the manager of an office building by an invitee sexually assaulted within the building.

Liability without fault¹ is a sturdy, ubiquitous, long-lived doctrine that can be traced back to primitive notions of liability based on a person's relation to the instrumentality (thing, ward, servant, or slave) that causes injury, irrespective of fault.² Late in the long history of the doctrine, the praetorian quasi delict known to Justinian as dejectum effusumve aliquid³ gave rise to an action against the occupier of a house, whether owner or not, for damage caused by anything being thrown or poured from the house. It was considered a quasi delict⁴ because the obligation arose without any kind of fault on the part of the occupier. It survives as a "quasi offense" in Article 177 of the Louisiana Civil Code. This article reads:

"The master is answerable for the damage caused to individuals or to the community in general by whatever is thrown out of his house into the street or public road, and inasmuch as the master has the superintendence and police of his house, and is responsible for the faults⁵ committed therein." La.Civ.Code of 1870, as amended.

A corresponding provision may be found in many codes.⁶

The plaintiff was criminally attacked by an intruder in a ladies' dressing room of an office building. She sued the owner and the operator of the building for damages.⁷ The jury found for the defendants. The plaintiff appeals, mainly on the ground that the trial judge erred in refusing to instruct the jury with regard to the effect of Article 177. We agree with the trial judge that Article 177 is inapplicable to the facts of this case.

I.

On a Saturday morning in March 1957 the plaintiff, Mrs. Philomene Williams, a widow forty-three years old, reported for her first day of work at a new employer's office in the Pere Marquette Building. This is a large office building in the center of the New Orleans business district. Jesuit High School Corporation owns the Pere Marquette Building and leases it to a building management company, Barcom Corporation. About two o'clock in the afternoon Mrs. Williams went to the ladies' dressing room on the fifth floor, unlocked the door, and entered the room. She saw no one. A few moments later, a tall youth followed her into the room before the door could close. Armed with a knife and using a handkerchief as a mask, he forced her to submit to a sexual assault. Several months later, New Orleans police found and arrested the assailant, a juvenile fourteen years old. He admitted the crime. Counsel for the parties stipulated that if the assailant were called to testify he would corroborate Mrs. Williams's testimony as to the attack.

Mrs. Williams suffered physical injury, shock, and severe nervous disorders requiring psychiatric treatment. She sued for damages in the amount of $150,000, alleging that her injuries, pain, suffering, and humiliation resulted from the defendants' negligence in failing to "take any steps properly calculated to reasonably protect the public from such assaults." This allegation of negligence indicates the plaintiff's uncertainty whether the claim is under the basic torts law of Louisiana, Article 2315,⁸ or under Article 177, an uncertainty that characterized the trial.

Mrs. Williams alleged that similar incidents known to both the owner and the operator should have put them on notice that the building had been selected by criminals as an habitual place for sexual assaults. Evidence at the trial showed that in July 1956 a man with a knife attempted an attack on a young woman using the stairs between the second floor and third floor. Mr. Songy, the Assistant Building Manager, was aware of this occurrence. Some months after that incident, a man was found in the ladies' dressing room. This was reported to the management. Mr. Songy testified that he knew of two other assaults in the building which had occurred less than six months before the attack on Mrs. Williams; neither was reported to the police. Only about an hour before Mrs. Williams was attacked, a young man, masked with a handkerchief and carrying a knife, threatened a woman in the ladies' dressing room on the third floor. She fought him off, reported the incident to the elevator starter, and asked him to call the police. Instead, he sealed the stairwell and made an unsuccessful search of the premises.⁹ The police were not called until shortly after the attack on Mrs. Williams.

The Building Manager, Mr. Lynch, and his assistant, Mr. Songy, testified that they knew of these earlier incidents. Mr. Lynch said that he did not bring any of them to the attention of the police because his tenants had not asked him to do so. None of the tenants testified. Mr. Songy and Mr. Lynch testified that they considered their procedures adequate; some such incidents, they said, cannot be avoided in the operation of a large office building.

On this and other evidence the trial judge properly submitted the issue of negligence to the jury.

Counsel for Mrs. Williams asked the court to give specific instructions that the manager of an office building owes invitees the duties set forth in Article 177 of the Civil Code; that Article 177 requires the defendants to carry the burden of proving that they complied with the duty of superintending and policing the building. The trial judge refused to do so, and instructed the jury that the operators of a building, must use "reasonable and ordinary care to keep such building or premises in such a safe condition that the plaintiff here would not be unnecessarily exposed to danger." After deliberating for two hours, the jury returned for further instructions because, as the foreman said, "There seems to be some misunderstanding about your charge." The trial judge asked if this misunderstanding related to the question of negligence and the duty of the owner of a building. The foreman answered affirmatively. The court repeated the earlier charge, carefully defining "negligence', "ordinary care", "a reasonably prudent person", and "burden of proof". Then he asked if counsel had anything to add. Counsel for Mrs. Williams again urged the trial judge to give special instructions, particularly with regard to Article 177. The trial judge answered: "No, I don't think that article is applicable. * * * I think that it would simply tend to be confusing. In some respects if it were given it would be satisfactory but I think that I have covered those portions in my general charge."

II.

The plaintiff, concentrating on the last half of Article 177 to the disregard of the first half, reads Article 177 as a law of broad application covering all of the duties of the owner of a building arising out of the "master's" underlying duty of "the superintendence and police of his house." As the plaintiff construes it, the article makes the owner responsible for any faults traceable to lack of proper policing of the premises and the burden of proof is on the owner to prove no-negligence. This construction is erroneous. The article has nothing to do with negligence and the burden of proof. A study of the antecedents of Article 177 shows that the language, "and¹⁰inasmuch as the master has the superintendence and police of his house, and is responsible for the faults committed therein", is simply an explanation of the vicarious liability absolutely imposed on the master as a matter of public policy in the specific fact situation involving damage caused by objects thrown out of a house. If Article 177 is properly construed, and if it were applicable here, the burden of proof would be unimportant and proof of no-negligence would not save the building owner. There is, of course, a duty on the householder or the owner of a building to furnish a safe place for invitees, but that duty arises under Articles 2315 and 2316 and in an action based on the breach of such duty the plaintiff carries the burden of proof as he would in an ordinary action based on negligence.

Before discussing the derivation of the law, we note that the position of the article in the Code gives some indication of its restricted coverage. It is found in "Chapter 2 — Of Free Servants", in "Book I, Title VI — Of Master and Servants".¹¹ The pattern of the chapter and the logic of the codal arrangement suggest strongly that Article 177 was never intended to regulate broadly the duties of the owner of a building. The law arose out of a special situation characteristic of urban communities in which citizens on the streets were exposed to hazards associated with the absence of plumbing, dispose-alls, and garbage collectors. The master is not liable because of the conjunction of the general duty to superintend and to police his premises and the general duty arising from the doctrine of respondent superior. He is liable simply because the thing thrown came from his house and presumably was thrown by one of his servants. It is noxal liability arising from the master's relation to the house and the servant (or sometimes a guest) connected with the house, as a result of which a person in the street suffers an injury; the application of the law is limited to these facts. The master cannot escape liability by showing no negligence on his part, that is, that the servants were not chosen...