Jopling v. Short Cut White Kitchen, Inc.

204 So. 2d 128, 1967 La. App. LEXIS 4775
CourtLouisiana Court of Appeal
DecidedNovember 13, 1967
DocketNo. 7139
StatusPublished
Cited by3 cases

This text of 204 So. 2d 128 (Jopling v. Short Cut White Kitchen, Inc.) 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
Jopling v. Short Cut White Kitchen, Inc., 204 So. 2d 128, 1967 La. App. LEXIS 4775 (La. Ct. App. 1967).

Opinion

REID, Judge.

Plaintiff, Mrs. Verna V. Jopling, has brought this suit for damages resulting from an accident when she fell while coming out of one of the entrances of the Short Cut White Kitchen, restaurant and bar on U.S. Highway 90 in the Parish of St. Tammany. The defendants are Short Cut White Kitchen, Incorporated, and its liability insurer Maryland Casualty Company. The accident happened on the 19th of August 1964 at approximately 4:00 P.M.

Plaintiff alleges that on August 19th, 1964 at approximately 4:00 P.M. in the company of two other ladies she was driving toward New Orleans from Florida. When they reached the Short Cut White Kitchen, hereinafter called “White Kitchen” for brevity, the day being hot, sunny and dry they stopped for refreshments.

Mrs. Jopling parked her vehicle on the westward side of the White Kitchen and she and her two companions entered the main entrance to. the restaurant, walking up a ramp where they purchased their refreshments and drank them. To get to this main entrance they had to pass the entrance marked “Cocktail Lounge and Bar.” Entrance to the cocktail lounge and bar is where the accident occurred.

When they got ready to leave the restaurant and had paid the bill they decided to depart by the entrance to the cocktail lounge because they would remain in the enclosed air conditioned building longer and would be closer to their car.

Mrs. Jopling pushed against the door, it opened and as she put her foot down found out there was a five inch step-down which threw her off balance and she fell and fractured her hip.

Defendants filed an answer in the nature of a general denial and further answered that any injury plaintiff might have sustained was solely and proximately by her own negligence in (1) in failing to maintain a proper lookout, (2) failing to use ordinary care and caution that would have been exercised by a reasonable and prudent person under the same and similar circumstances (3) acting carelessly and inattentively, and (4) failing to see what she should have seen and do what she could have done. Al[130]*130ternatively defendants plead contributory negligence on the part of plaintiff.

The matter was tried in the Lower Court and judgment was rendered and signed in favor of the defendants and against the plaintiff rejecting her demands and dismissing the suit at her costs. • She has brought this appeal from this judgment.

Plaintiff appellant complains that the Lower Court erred in failing to recognize the status of the plaintiff and the duty owed to her, and second, failed to warn invitees of passage obstructions and traps.

There is very little dispute about the facts in the case. The pictures offered in evidence by both parties show the door which is the entrance to the cocktail lounge and bar of the White Kitchen. There is a step that extends out some six inches from the doorway after the door is closed and there is a drop of about five inches. Mrs. Jopling passed by this door entrance to the cocktail lounge when she entered throught the main entrance to the restaurant and could very easily have seen the step. In addition, she walked up the ramp and certainly should have realized that the floor of the restaurant was not on a level with the ground, and there was bound to be a step-down at the other entrances instead of a ramp.

The pictures show knobs on both sides of the door to the entrance of the cocktail lounge and bar although plaintiff’s witnesses swore that there was no knob on the door and they merely pushed it open when they went to leave.

Plaintiff put on as a witness Mr. Charles Edward Schwing, who was qualified and accepted by the Court as an architect. He testified that he had examined the building and in his opinion the step-down was a hazard. He further testified, however, that he considered ALL steps a hazardous condition and any time you break the level it would be a hazard. Further, that it is a policy from an architect’s point of view to try to avoid the situation such as the step-down from the entrance to the cocktail lounge as was present in this particular case.

Plaintiff cites several cases which she relies on in stating the law applicable to the facts in this case. We will take up these cases and discuss them, as well as the cases cited by defendant appellee in their briefs.

There is no question but what plaintiff was an invitee on the premises of the defendant. It is equally well settled in law that a property owner is not the insurer of the safety of invitees, but owes reasonable and ordinary care for the safety of the invitee.

“ ‘An invitee is a person who goes on the premises with the express or implied invitation of the occupant on the business of the latter or for their mutual advantage ; and to him, the duty owed is that of reasonable and ordinary care, which includes the prior discovery of reasonably discoverable conditions of the premises that may be unreasonably dangerous, and correction thereof or a warning to the invitee of the danger.’ Alexander v. General Fire and Life Assurance Corp., La.App., 98 So.2d 730. ‘The owner, occupant, or person in charge of property owes to an invitee * * * the duty of exercising reasonable or ordinary care for his safety and is liable for injury resulting from breach of such duty. This duty includes that of exercising reasonable care to keep the premises in a reasonably safe and suitable condition or of warning invitees * * * of hidden or concealed perils of which he knows or should know in the exercise of reasonable care, so that those whom he has invited to enter upon or use his property shall not be, unnecessarily, or unreasonably exposed to danger. * * *’ Savell v. Foster, [La.App.,] 149 So.2d 210.” Foggin v. General Guaranty Insurance Company, 250 La. 347, 195 So.2d 636.

Foggin v. General Guaranty Insurance Company is the case on which plaintiff appellant relies mostly in this case. However, we do not feel that the facts in the Foggin case, supra, are analogous to the facts in the instant case.

[131]*131In the Foggin case, supra, a woman tripped over a board nailed across the bottom of a gateway in the back yard of her son’s residence. She stumbled across this board in the dark of night after being urged by her daughter-in-law to pass through the gate. The daughter-in-law did not give her any warning, and did not tell her of the existence of the board, and the Court held under these circumstances that she was negligent in not doing so.

The case of Kennedy v. Columbia Casualty Company, 248 La. 869, 182 So.2d 519 the Supreme Court maintained the duty of an owner of a building to his invitee was that of ordinary and reasonable care, which means his obligation of maintaining the premises in a condition reasonably safe for use consistent with the purpose of the invitation, including the discovery of reasonable foreseeable conditions that may be dangerous and result in an injury especially where there is time for correcting the perilous condition, or giving warning to the invitee of the danger. In this case the plaintiff with a group of children was visiting a plantation in West Feliciana Parish and while on the tour walked across a swinging foot bridge. The foot bridge fell and plaintiff was injured by falling onto the dry bed of a creek.

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Bluebook (online)
204 So. 2d 128, 1967 La. App. LEXIS 4775, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jopling-v-short-cut-white-kitchen-inc-lactapp-1967.