JOHN R. BROWN, Chief Judge:
The damage claim asserted in this diversity case arises from personal injuries sustained by plaintiff Webb in a fall from the defendant oil company's storage tank. Webb appeals from the dismissal of his complaint for failure to state a claim upon which relief could be granted.
In this Circuit the "high mortality rate" of dismissals on the "barebones pleadings" is a well-publicized fact. See, e. g., Banco Continental v. Curtiss National Bank, 5 Cir., 1969, 406 F.2d 510; Mizell v. North Broward Hospital District, 5 Cir., 1968, 392 F.2d 580, 581; Barber v. M/V Blue Cat, 5 Cir., 1967, 372 F.2d 626, 1969 A.M.C. 211; cf. Keating v. Jones Development, Inc., 5
The "facts" of this case are simple, because there are none. Rather, there are at this point only allegations — both specific and general. A summary of the allegations of Webb's complaint is as follows:
Webb was a "commissioned agent" for the sale of Standard's products, and one of his duties was to measure the number of gallons of petroleum products required to fill a particular perpendicular type tank located at Standard's bulk plant. The tank was approximately 30 feet tall, and in order to make the required measurement, Webb had to climb a steel ladder constructed of metal rungs welded to pieces of angle iron. The angle iron forming the stay posts of the ladder was too large to be grasped by a man's hand, and there were no handrails, guardrails, landing or other protective devices attached to the ladder. In June 1965, while performing his duty to measure the amount of product in the tank, Webb was climbing the ladder at a point 20 to 30 feet above the ground when he fell and sustained severe physical injuries.
Webb had from time to time complained to Standard's agents that the ladder was unsafe. In response, these agents had assured Webb that the company had under study and consideration changes that would lessen the dangers attendant to the use of said ladder and had instructed him to continue to use it until the changes and safety devices could be installed.
It was, and is, Webb's contention that defendant's negligent refusal to provide a safe ladder or to install handrails or safety devices was the proximate cause of his injuries.
In his original petition in the District Court, Webb made some attempt to characterize his relationship with Standard Oil as that of landlord-tenant, but in this appeal he takes the position, and we think correctly, that their true relationship was that of principal and agent. Webb's theory of recovery is that the failure of the defendant-principal to provide safe working conditions to the plaintiff-agent constituted a breach of the codal duty imposed on the defendant by their relationship.
This simple opener is almost lost as the successive contentions and counter contentions of the parties are successively matched as a sort of juridical vingt-et-un.
Thus, in support of its motion to dismiss in the Court below, Standard responded with the doctrine of assumption of risk
In the view of this Court, this case breaks down into two significant questions. The first — the issue of assumption of risk — clearly appears to have been eliminated as a pleading obstacle by reason of quite specific allegations which anticipate these Georgia principles. In the early case of Bush v. West Yellow Pine Co., 1907, 2 Ga.App. 295, 58 S.E. 529, the Georgia Court, analyzing this particular facet of the law of master-servant liability, stated:
In the case before us, Webb alleged that when he complained to Standard's agents, they assured him that measures were being studied that would make the ladder safer and instructed him to continue to use the ladder until repairs could be made. We think that these statements, if made, or other facts and circumstances proved from which similar inferences could be drawn, would fit the Georgia notion of an implied agreement to bear the risk of accident during the time prior to accomplishment of the repairs.
That brings us to the second question. For still undaunted, Standard sets its second line of defense in the doctrine of contributory negligence.
Slippery as are these undulating Georgia principles of some-time momentary shifting liabilities or defenses, the problem is not with the law. The difficulty is that we are asked as Judges to rule as a matter of law that the ladder, once characterized by Webb as "extremely dangerous and unsafe," was so dangerous that no reasonable man could ever conclude that its attempted use could be anything less than "rash". But where do we get these powers of divination? We don't even have a picture of the ladder. And the "word" picture set forth by the scrivener in the pleadings is anything but a revealing one. It is chock-full of conclusory statements. What does the ladder look like? What sort of handholds does it have?
Bear in mind that in the story set forth (and admitted) in the pleadings the employer (Standard) did two things. First, it instructed Webb to continue to use the ladder. Next, it gave assurance that, while the company was looking into possible corrective improvements, the ladder was safe to use. If an employer, under the heavy Georgia duty to provide safe working conditions, takes those steps with an employee, how could a Judge — trial or appellate — say that an employee could not credit the employer's appraisal of the device's relative safety?
All of the issues of liability and defense — partial or complete — are open for factual development to determine what the facts are, not what lawyers say they are, or worse, undertake to characterize their legal significance. This is but a reminder that the "reasonable man" is indeed an elusive character, and, as Standard concedes, ordinarily the question of negligence — either primary or contributory — is one for the jury.
The upshot is that we have decided that what Webb says is so is or may be enough. But this may turn out to have been a sterile exercise. "What will come of this only the facts will tell. It now goes back two years later to find out what they are." Stern, Hays & Lang, Inc. v. M/V Nili, 5 Cir., 1969, 407 F.2d 549, 551.
From both a substantive standpoint and that of judicial administration, what we've earlier said bears repeating:
Tyler v. Peel Corp., 5 Cir., 1967, 371 F.2d 788, 791-792 (footnotes omitted).
Reversed and remanded.
ON PETITION FOR REHEARING
The Court's reference to the relationship of employer-employee is intended to describe a relationship and the existence of duties, etc. analogous to that of employer-employee. In all other respects the petition for rehearing filed in the above entitled and numbered cause is hereby denied.
Georgia Code §§ 66-301.
This section of the Code is, however, merely declarative of principles developed in the case law.
See Georgia Code § 105-603:
See also Tyler v. Peel Corp., 5 Cir., 1967, 371 F.2d 788, 791 n. 6; Mixon v. Atlantic Coast Line R. R., 5 Cir., 1966, 370 F.2d 852, 858; Gross v. Southern Ry., 5 Cir., 1969, 414 F.2d 292 [May 30, 1969].
See also Louisville & N. R. R. v. Dunn, 1917, 21 Ga.App. 379, 94 S.E. 661. For our purposes here, it is sufficient to assume that "rashness" encompasses the concept of contributory negligence.