Salter v. Employers Liability Assurance Corp.

312 So. 2d 114, 1975 La. App. LEXIS 4142
CourtLouisiana Court of Appeal
DecidedMay 5, 1975
DocketNo. 4941
StatusPublished

This text of 312 So. 2d 114 (Salter v. Employers Liability Assurance Corp.) 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
Salter v. Employers Liability Assurance Corp., 312 So. 2d 114, 1975 La. App. LEXIS 4142 (La. Ct. App. 1975).

Opinion

HOOD, Judge.

Plaintiff, Hiram Monroe Salter, claims damages for personal injuries sustained by him when his head was struck by an overhead door on the premises of Hanna-Abington Ford, Inc. The defendants are Hanna-Abington Ford and its insurer, Employers Liability Assurance Corporation. The trial court rendered judgment for the plaintiff, and defendants have appealed. Plaintiff answered the appeal, praying for an increase in the amount of the award.

The issues are whether plaintiff is barred from recovery by contributory negligence or assumption of the risk, and whether the award of damages is inadequate or excessive.

The accident occurred about noon on July 13, 1972, on the premises of an automobile dealership owned and operated by defendant, Hanna-Abington Ford, in Many. Plaintiff had gone to the defendant’s place of business with his daughter-in-law to have an air-conditioner installed in the latter’s pickup truck. As Salter was walking out of the shop, through an 18 foot wide exit leading from the shop to the street, the overhead door which was designed and used to close that exit was lowered by one of the defendant’s employees, and the door struck plaintiff on his head. The blow knocked Salter to a sitting position, and caused him to sustain the injuries [116]*116for which he now seeks to recover damages.

The overhead door which struck plaintiff was a heavy, light colored, 18 foot wide door, which rolled or slid to a point near the ceiling when the door was open. It was raised and lowered by means of a manually operated chain hoist. The hoist made a considerable amount of noise as the door was being lowered.

It was customary in this shop to partially close the 18 foot wide door at about the noon hour to enable the employees to eat their lunches without being disturbed by customers. Usually the door was lowered to a point where the bottom of the door was about four feet above the floor, and the door was allowed to remain in that partially closed position during the lunch break. The evidence shows that the employee who was lowering the door when this accident occurred had his back turned to plaintiff, and that he did not see Salter as the latter approached and attempted to walk through the door.

Salter testified that he was inside the shop about 20 feet from the door when he started to walk toward it, and that he noticed at that time that the door was wide open so that “you could have drove a school bus in there.” He stated that he had worked in automobile repair shops prior to that time, and that as he walked toward the exit of that shop he maintained a careful lookout for grease spots and loose tools on the floor, but that he alternately looked straight ahead at the exit through which he expected to leave the building. He testified that he did not observe that the door was being lowered as he approached it, that he did not see anyone operating the chain hoist, and that he did not see the door at any time before it struck him. He did not know what caused the blow until after the accident had occurred.

Plaintiff’s testimony is contradicted to some extent by Pete Abington, President of defendant, Hanna-Abington Ford, who stated that Salter was “looking down” as he walked toward the door.

We conclude, as did the trial judge, that the employee of Hanna-Abing-ton Ford who was closing the overhead door when the accident occurred was negligent in failing to determine whether plaintiff was in the doorway or was in danger while the door was being lowered, and in failing to warn plaintiff of the danger. His negligence in that respect was a proximate cause of the accident. The employee was performing the duties of his employment at that time, and the employer and its insurer thus are responsible for the negligent acts of that employee.

Defendants contend, however, that plaintiff is barred from recovery by his own contributory negligence or by having assumed the risk. They point out that the accident occurred on a bright sunny day, that there was nothing to obstruct plaintiff’s view of the door, that the hoist made a loud noise, and that plaintiff was familiar with automobile repair shops and with large doors such as the one which was involved in this accident. They argue that Salter was negligent in failing to maintain a reasonable lookout for his own safety as he approached the exit, that his negligence was a proximate cause of the accident, and that he thus is barred from recovery by contributory negligence.

Plaintiff was an invitee in defendant’s place of business. The law is settled that an invitee is required to walk with his eyes open and to observe the course which he is pursuing. He is held to have seen an obstacle in his path which is readily apparent and which by the exercise of reasonable care he should have seen. Mitchell v. Aetna Casualty and Surety Company, 284 So.2d 636 (La.App. 3 Cir. 1973).

The owner or occupier of the premises does not insure an invitee against the possibility of accident. The invitee as[117]*117sumes all normally observable or ordinary risks attendant upon the use of the premises. The occupier is not liable for an injury to an invitee resulting from a danger which is observable, or which should have been observed by the invitee in the exercise of reasonable care, or from a danger which the invitee should reasonably have appreciated before exposing himself to it. Granger v. United States Fidelity & Guaranty Co., 266 So.2d 526 (La.App. 3 Cir. 1972).

The trial judge found that “the dropping of a door from above at the time of day when the accident happened, when a person was emerging (from the darker interior of the shop) to the bright outdoors is not the kind of thing that is foreseeable from the plaintiff’s position,” and that “the practice of lowering such a door under these circumstances should require the very highest type of concern, care and duty to make certain that no person or vehicle is injured or damaged.” He concluded that plaintiff was free from contributory negligence.

The evidence supports the conclusion of the trial judge. Salter had no reason to suspect that the overhead door of the shop would be lowered in the middle of the working day. He was not negligent in failing to hear the chain hoist being operated, and thus in failing to notice that the door was being closed, because other activities were being conducted in the shop which also made noises, and we think it would be unreasonable to hold that plaintiff should have isolated the particular noise made by lowering the door and thus detected that the door was being closed. We think he maintained a reasonable lookout for obstacles or obstructions as he walked toward and attempted to go through the door.

We, like the trial judge, conclude that plaintiff was free from contributory negligence. We also find that he did not assume the risk that an employee would lower an overhead door without maintaining a proper lookout and without warning invitees of the danger incidental to that operation. We hold, therefore, that plaintiff is not barred from recovery either by contributory negligence or by assumption of the risk.

The trial judge awarded plaintiff $876.34 as special damages and $8,000.00 as general damages, making a total of $8,876.34. Defendants contend that the award of general damages is excessive. Plaintiff argues that the award is inadequate and should be increased.

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Related

Meche v. Maryland Casualty Company
204 So. 2d 719 (Louisiana Court of Appeal, 1968)
Granger v. United States Fidelity & Guaranty Co.
266 So. 2d 526 (Louisiana Court of Appeal, 1972)
Mitchell v. Aetna Casualty and Surety Company
284 So. 2d 636 (Louisiana Court of Appeal, 1973)
Buxton v. Evangeline Timber Co.
286 So. 2d 100 (Louisiana Court of Appeal, 1973)

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Bluebook (online)
312 So. 2d 114, 1975 La. App. LEXIS 4142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salter-v-employers-liability-assurance-corp-lactapp-1975.