Hancock v. Safeco Ins. Co.

368 So. 2d 1162, 1979 La. App. LEXIS 3895
CourtLouisiana Court of Appeal
DecidedMarch 7, 1979
Docket6872
StatusPublished
Cited by8 cases

This text of 368 So. 2d 1162 (Hancock v. Safeco Ins. Co.) 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
Hancock v. Safeco Ins. Co., 368 So. 2d 1162, 1979 La. App. LEXIS 3895 (La. Ct. App. 1979).

Opinion

368 So.2d 1162 (1979)

John W. HANCOCK, Plaintiff-Appellant,
v.
SAFECO INSURANCE COMPANY et al., Defendants-Appellees.

No. 6872.

Court of Appeal of Louisiana, Third Circuit.

March 7, 1979.

*1163 Broussard, Bolton & Halcomb, Daniel E. Broussard, Jr., Alexandria, for plaintiff-appellant.

C. Edward Karst, Alexandria, Stafford, Trimble, Randow & Smith by James T. Trimble, Jr., Alexandria, Edward A. Kaplan, Alexandria, for defendants-appellees.

Before DOMENGEAUX, GUIDRY and CUTRER, JJ.

DOMENGEAUX, Judge.

This suit involves a tort action brought by the tenant of an apartment complex against the maintenance man, owners, and insurer of the complex in order to recover for personal injuries sustained when a refrigerator fell down a flight of stairs.

Plaintiff, John W. Hancock, rented a furnished apartment in the Bayou Rapides Apartments in Alexandria, Louisiana. The Bayou Rapides Apartments are owned by Eddie Knippers, I. W. Knippers, Sidney Cox, and Lamar Cox. The insurer is Safeco Insurance Company.

On December 30, 1976, plaintiff and his wife discovered that the refrigerator in their apartment was not working properly. After several calls were made to the manager's office reporting the difficulty, Mr. Grady Sitton, the complex's maintenance man, came out to investigate. This occurred at approximately 5:00 P.M. At this time, plaintiff was in his apartment.

Sitton discovered that the refrigerator was defrosting and would not switch on; however, inasmuch as the day fell before New Year's Eve, Sitton suggested that plaintiff wait until after the holidays to have the refrigerator repaired. When plaintiff complained of his food spoiling, Sitton offered him the use of another refrigerator until the one in the apartment could be repaired.

The extra refrigerator was located in a second floor apartment in another building of the complex. Plaintiff's apartment was located on the first floor. A problem was presented with regard to moving the refrigerator from its storage location to plaintiff's apartment. Moving the refrigerator entailed the necessity of going down a flight of stairs, consisting of fourteen steps.

Mr. Sitton's helper for the day had already left, and, therefore, Sitton and Hancock agreed that in order to bring the refrigerator down, both would work together in moving it. Mr. Sitton obtained a dolly, and he and plaintiff went to the storage room and strapped the refrigerator to the dolly. Sitton then rolled the refrigerator to the second floor landing of the staircase and instructed plaintiff to get in front of the refrigerator in order to support some of its weight. Sitton was to hold onto the handles of the dolly. The idea was to move the wheels of the dolly down the staircase, one step at a time.

Hancock and Sitton began to move the refrigerator down the steps in this fashion. However, after going down about three or four steps, control of the refrigerator was lost, and it came sliding down the stairs, pushing Hancock in the process. When Hancock reached the ground, he was able to throw his body out of the path of the refrigerator; however, the refrigerator either struck or landed on plaintiff's left heel, causing a bone fracture.

Plaintiff filed suit in tort against Sitton, the owners of the Bayou Rapides Apartments, *1164 and their insurer, Safeco Insurance Company. The owners and Safeco filed a third party demand against Sitton, alleging that Sitton was not covered by the insurance policy and that they would be entitled to reimbursement if they were found liable for damages as a result of Sitton's negligence. Both Safeco and the owners requested and were granted a trial by jury.

After the evidence was adduced, the jury returned a verdict in favor of all three defendants and against the plaintiff. The jury made specific findings of fact that: (1) Sitton was not guilty of negligence; (2) Sitton was not working in the course and scope of his employment; (3) Hancock was contributorily negligent; and (4) Hancock had assumed the risk. Judgment was rendered accordingly, dismissing plaintiff's suit at his costs.

From this judgment, plaintiff appeals, listing the following eight grounds of error:

(1) The trial court erred as a matter of law in failing to instruct the jury on the doctrine of res ipsa loquitur, despite plaintiff's request to do so and an objection for failure to do so;

(2) The jury erred in not finding defendant, Grady Sitton, guilty of negligence proximately causing plaintiff's injury;

(3) The jury erred in finding plaintiff guilty of contributory negligence causing the accident;

(4) The jury erred in finding that plaintiff had assumed the risk of injury to himself under the circumstances of this case;

(5) The jury erred in finding that Grady Sitton was not acting in the course and scope of his employment with Bayou Rapides Apartments at the time of the accident;

(6) The trial court erred as a matter of law in allowing counsel for Safeco and the owners of Bayou Rapides Apartments to cross-examine its own employee, Grady Sitton, despite plaintiff's objection;

(7) The trial court erred as a matter of law in failing to give the jury the opportunity to assess liability against the owners of Bayou Rapides Apartments, and in failing to instruct the jury concerning the lessor's legal obligations under the Civil Code and the liability that could arise from a lessor's negligence in fulfilling those obligations; and

(8) The trial court erred in entering judgment dismissing plaintiff's claim against the lessor and the liability insurer without the jury making a specific finding thereon.

With regard to plaintiff's first specification of error, we feel that this case is not a proper one for the application of res ipsa loquitur.

Res ipsa loquitur is a rule of circumstantial evidence which is applied in cases where the facts are such as to indicate that the negligence of the defendant, rather than some other as-plausible explanation, is the most probable cause of the injury. The principle serves as an aid to the plaintiff because, when properly applied, it gives rise to an inference of negligence which the plaintiff places in the scales along with the other facts of the case in order to prove his position by a preponderance of the evidence. Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972).

The test of applying res ipsa loquitur is simply: Do the facts of the case indicate that the negligence of the defendant is the most plausible explanation of the accident? Stated differently, the test is: Are the facts of the case such as to suggest an explanation for the accident, other than the negligence of the defendant, which is just as plausible as one explaining the accident in terms of the defendant's negligence? When it can be shown reasonably that the accident could have occurred as a result of one of two or more causes, the rule cannot be invoked. Taylor v. CNA Insurance Group, 300 So.2d 479 (La.1974); Boudreaux v. American Insurance Company, supra.

Turning to the record in the instant case, only three witnesses were able to testify as to the events occurring during the actual operation of moving the refrigerator. These witnesses were plaintiff, defendant *1165 Sitton, and Scott Kuykendall, a fourteen year old who had witnessed the accident.

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Bluebook (online)
368 So. 2d 1162, 1979 La. App. LEXIS 3895, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hancock-v-safeco-ins-co-lactapp-1979.