Salley v. State Farm Mutual Automobile Insurance Co.

157 So. 2d 638, 1963 La. App. LEXIS 2028
CourtLouisiana Court of Appeal
DecidedNovember 1, 1963
DocketNo. 10031
StatusPublished
Cited by7 cases

This text of 157 So. 2d 638 (Salley v. State Farm Mutual Automobile Insurance 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
Salley v. State Farm Mutual Automobile Insurance Co., 157 So. 2d 638, 1963 La. App. LEXIS 2028 (La. Ct. App. 1963).

Opinion

BOLIN, Judge.

Thomas Wayne Salley, individually and as administrator of the estate of his minor child, Nanette Charlene Salley, brought suit against Mrs. Ann C. Adgate and her liability insurer for personal injuries received by the minor while she was a guest in an automobile being driven by Mrs. Adgate. From judgment in plaintiff’s favor in the sum of $10,000, defendants appeal and plaintiff answered the appeal praying for an increase in the award.

The facts are undisputed. On the date of the accident Mrs. Adgate picked up Nanette Charlene and Tommy Salley at their residence in Ruston and transported them in her automobile across town to the home of Mrs. Tommy Cooper. At the time these children were approximately 20 months and 4 years of age respectively. Also guests in the Adgate vehicle were Mrs. Cooper and her three small children, all of whom were under five years of age. When they arrived at the Cooper home Mrs. Adgate drove her car into the driveway. [639]*639Mrs. Cooper and her three children got out of the car, leaving in it with Mrs. Adgate, Nanette and her little brother Tommy. Immediately after Mrs. Cooper and her children alighted from the vehicle Tommy, who had been riding in the rear, was told by Mrs. Adgate to get in the front by climbing over the back of the seat. Immediately after Tommy sat on the front seat. Mrs. Adgate instructed him to lock the right front door of the automobile, which he did by pushing the locking button down. Mrs. Adgate then drove the automobile in reverse, turning the front wheels sharply to the left in order to turn the car completely around so as to enter the main highway head first instead of backing into it. After the automobile had made approximately one quarter of a circle in reverse movement, the right front door thereof came open and the child, Nanette, slid or was thrown out of the open door, hit the ground and the right front wheel passed over her head and the upper portion of her body, causing serious injuries to her. The vehicle was then brought to a complete stop, Mrs. Adgate got out, rushed to the child, picked her up and carried her into the home of Mrs. Cooper. An ambulance was called, the child was taken to the Ruston Hospital in Ruston, Louisiana where her condition was diagnosed and emergency treatment administered by Dr. Carter. She was then, accompanied by Dr. Carter and her mother, taken by ambulance to one of the Shreveport hospitals where she was treated by a neurosurgeon, Dr. Faludi.

Exactly how the child got out of the automobile we, of course, do not know. We do know that as Mrs. Adgate was making a backward circular motion of the automobile the right front door came open and there was enough force or momentum by the car to throw the child from the open door. Mrs. Adgate testified she did not check the door before she put the automobile in reverse motion but that she looked at it and thought it was closed. Mrs. Cooper, who had been a passenger in the automobile, testified she thought she closed the door but did not check to see whether or not it was securely closed. Tommy, the four-year-old boy, did manipulate the lock mechanism of the right front door upon instructions by Mrs. Adgate.

Mrs. Adgate and Mrs. Cooper, the only eyewitnesses old enough to testify, said there was general excitement and noise among the Cooper and Salley children as they were saying good-bye to each other. Mrs. Adgate likewise testified that from the time she put the automobile in reverse motion until she stopped it she did not at any time observe the movements of the child, Nanette, but, on the contrary, directed all of her attention away to her left in order to back her car.

The trial judge has favored this Court with a most excellent written opinion. He concluded plaintiff was entitled to recover either under the doctrine of res ipsa lo-quitur or the special charges of negligence alleged against Mrs. Adgate. For the reasons stated later herein we have concluded Mrs. Adgate was negligent in failing to exercise the required degree of care and caution toward this small child and, accordingly, we pretermit discussing the applicability of the res ipsa loquitur doctrine.

The only uncertainty surrounding this accident relates to one detail in the chain of events leading up to the injury. It must be conceded the child was injured by falling from the open door of an automobile. There are only two possible ways this door could have opened. The four-year-old boy either manually opened it by manipulating the handle or it flew open because it had not been securely fastened by Mrs. Cooper. Therefore, assuming the accident was caused by either method, was Mrs. Adgate negligent?

Eminent counsel for appellants contend in brief that to hold Mrs. Adgate liable for these injuries would in effect make her the insurer of the child’s safety and cite many authorities that such is not [640]*640the law. We fully realize an automobile host is not the insurer of the safety of his guests. The foundation of all liability in tort cases is LSA-C.C. Art. 2315 and the key word therein is “fault.” As aptly stated in Wiley v. Sutphin (La.App. 2 Cir. 1958) 108 So.2d 256:

“Under LSA-C.C. art. 2315 respecting liability for damages, liability is founded upon fault, and whether or not fault exists depends upon the facts and circumstances presented in each particular case. In the determination of the question of fault as respecting liability for damages, a common sense test is to be applied, that is, how would a reasonably prudent man have acted or what precautions would he have taken if faced with similar conditions and circumstances? The degree of care to be exercised must always be commensurate with the foreseeable danger confronting the alleged wrongdoer. * * *
“Negligence is a want of ordinary or reasonable care, which should be exercised by a person of ordinary prudence under all the circumstances in view of. the probable danger of injury; and ordinary, reasonable or due care is that degree of care, which, under the same or similar circumstances, would ordinarily or usually be exercised by, or might reasonably be expected from, an ordinarily prudent person.”

The law is well settled that a motorist is held to a high degree of care when operating a motor vehicle in the vicinity where small children are known to be present. Most such cases in our jurisprudence have involved injuries to small children playing in the streets or highways. In such cases our courts have uniformly held the driver to an extremely high degree of care in anticipating unusual and impulsive actions characteristic of persons of immature years. See Rainwater v. Boatright, et al. (La.App. 2 Cir. 1952) 61 So.2d 212 and cases cited therein.

While we have been cited to no Louisiana cases where a small child fell from the open door of a moving car, we see no reason why the same general rules previously enunciated herein would not be applicable. The case of Llorens v. McCann, 187 La. 642, 175 So. 442 (1937) is somewhat analogous to the instant case. There, an eight-year-old boy jumped from the rear of a motor truck as it passed near his home and was killed. The court said the driver was negligent, first in not having discovered the boy’s presence on his truck, and secondly in not having realized the boy would become frightened as he passed his home and jump out. In assessing liability the court said :

“We are not aware -of a case like this in our jurisprudence, but the rule, which has been established with regard to the duty that automobile drivers owe to children in the streets is very strict.

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Bluebook (online)
157 So. 2d 638, 1963 La. App. LEXIS 2028, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salley-v-state-farm-mutual-automobile-insurance-co-lactapp-1963.