Gibbens v. Edgens

328 So. 2d 793, 1976 La. App. LEXIS 4115
CourtLouisiana Court of Appeal
DecidedMarch 1, 1976
DocketNo. 10593
StatusPublished

This text of 328 So. 2d 793 (Gibbens v. Edgens) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gibbens v. Edgens, 328 So. 2d 793, 1976 La. App. LEXIS 4115 (La. Ct. App. 1976).

Opinion

SARTAIN, Judge.

Plaintiffs, parents of decedent Michael Gibbens, bring this appeal from judgment rendered against them in favor of defendants, Carroll Edgens, Carroll’s Promotions, Inc., and Hartford Accident & Indemnity Company, dismissing plaintiff’s claim for damages resulting from the death of their fourteen year old son. We affirm for reasons stated herein.

The record before us shows that defendants, Carroll Edgens and Carroll’s Promotions, Inc., are the owners of a race track [794]*794located in the northern portion of East Baton Rouge Parish near Baker, Louisiana. On August 9, 1973 Edgens was operating a two ton tanker truck insured by defendant Hartford and which was frequently used at the track in spraying oil on the dirt surface to obtain proper soil consistency. Defendant had also allowed three young boys to ride on the truck during these particular oiling operations, two on the outside running board on the passenger side, and the other atop the truck in the “crow’s nest”. The boys played no significant part in the oiling procedure but were members of a group of boys that frequented the track to aid defendant Edgens in various minor tasks. Edgens reciprocated by allowing the boys free admission at the track’s events and performing other favors. On the day of the accident defendant Edgens had allowed the boys to ride on the truck during the oiling process as a “reward” for assistance given him earlier.

Accounts of events leading up to the accident varied, but the evidence is clear that at some point the decedent left his position on the running board of the truck and then attempted to overtake the moving truck, then traveling approximately five miles per hour, from behind and again mount its running board whereupon he slipped and fell beneath the truck’s right rear wheels and died within hours of the incident.

Plaintiffs now contend that defendant Edgens was negligent in allowing decedent to ride on the outside running board of a moving truck. In the alternative, plaintiffs argue under the facts of this case that the court should apply a doctrine of strict liability and impose responsibility on defendant regardless of the conduct of any of the persons involved. With these contentions in mind we look to the evidence.

Defendant Edgens testified that the track is oval in shape and runs north and south in length. On the day of the accident he was spraying the track, proceeding in a counter-clockwise direction. He stated that he stopped in the southeastern turn and let Gibbens off the truck whereupon Gibbens walked across the track to the southwestern turn to converse with Bobby Slaven, Rick Westmoreland and several other persons standing in that area. Defendant then proceeded around the track and as he approached the southwestern turn he noticed Gibbens standing with the aforementioned group. As he traveled past decedent he received no indication that decedent wished to regain his position on the truck. Proceeding through the southwestern and into the southeastern turn, defendant felt a bump and was informed by Terry Baggett, the other boy who occupied a position on the outside running board, that decedent had been run over by the truck. Mr. Edgens estimated that the truck was traveling less than five miles per hour, or the pace of a fast walk, at the time the accident occurred. Defendant Edgens never saw decedent approaching the truck according to his own testimony. When asked if he had given any specific instructions about getting on and off moving vehicles, the following testimony was elicited:

“Q. The — let me ask you this specifically, Mr. Edgens. Have you instructed Mikey and his group of friends, those that came to the race track, with regard to getting on and off of this particular vehicle while it was in motion ?
A. Yes, sir.
Q. What were the instructions specifically that you gave ?
A. Just like I had told them all the time on anything else that we had running, don’t never get off of anything running and don’t never get on anything running, wait until it stops.
Q. To your knowledge had Mikey or any of the other boys ever violated those instructions with you on this piece of equipment?
A. No sir.”

[795]*795Terry Baggett testified that he and Gib-bens were standing on the running board opposite the driver’s side with himself in front. He stated that the window was down and that they were each holding on to the inside of the door. As the truck approached the southwestern turn and was about to enter the turn, Gibbens jumped off and proceeded to a group standing on the side of the track. The truck made a complete revolution of the track and passed Gibbens. As Baggett glanced back he noticed Gibbens running up to the truck. Baggett testified that he shook his head in a negative fashion to indicate to the approaching Gibbens that he should not attempt to mount the moving vehicle. Bag-gett then turned his attention back to defendant Edgens. He never told Edgens that Gibbens was approaching and when Baggett glanced back to check on Gibbens’ progress, he realized that Gibbens had been run over by the truck. Baggett too estimated the speed of the truck at the time of the accident as equivalent to that of a fast walk. When questioned as to instructions given by defendant Edgens, the following testimony appears:

“Q. O. k. Before you got on the truck did Mr. Edgens instruct you that it was dangerous and that you should be careful?
A. He did.
Q. What did he tell you about it, do you remember exactly?
A. Yes, he said if you get on the truck stay on the truck, if you wanted off to tell him and he would stop and let us off.”

Mike Kippers was also present on the truck at the time of the accident and was riding in the “crow’s nest”. He stated that Gibbens jumped from the truck as it approached the southwestern turn, spoke briefly with a group of people standing there, and immediately ran to catch up with the truck as it completed the southwestern turn. He stated that Gibbens jogged up to the truck on the passenger side, got one foot on the running board and slipped. Kippers, too, remembered Ed-gens’ instructions:

“Q. O. k. Did Mr. Edgens tell you anything about whether or not it was dangerous for you to be riding on the truck and to be careful ?
A. Yes, he told us not to hop off and hop on the truck, if you are going to ride stay on the truck, if you ain’t, stay off.
Q. Now, were there occasions when somebody would get off the truck and get back on ?
A. No, sir, not until we got through running all the oil out and we would hop off and take the things off.
Q. So he never stopped at any point except when he ran out of oil ?
A. No, sir.
Q. How fast was the truck going around the track during the oiling operations ?
A. I don’t know exactly, but it was going real slow—
Q. Could you—
A. —it was idling, just about.
O. Pardon me?
A. Idling, just about.
Q.

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Bluebook (online)
328 So. 2d 793, 1976 La. App. LEXIS 4115, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gibbens-v-edgens-lactapp-1976.