This is a suit brought by an employee, Ralph T. Barnes, of a tenant-employer, Crescent City Novelty Company, Inc., against the employer's landlord, Louis Pick, for injuries sustained when plaintiff's leg was thrust into a crevice between an elevated vehicle ramp and the entrance of a rented warehouse. The defendant landlord filed third party proceedings against his tenant, Barnes' employer.
The facts are that Barnes was employed by Crescent City Novelty Company, Inc. in a warehouse leased from Pick, and one of Barnes' duties was to open the entranceway to the warehouse each morning. The warehouse, where the injury occurred, was designed so that its main loading entrance
The trial court in its Reasons for Judgment stated the following:
The record shows ample evidence to support the facts and conclusions found by the trial judge. It is apparent to us that this crevice of several inches in width between the ramp and entrance door of the building is an obviously dangerous condition to any reasonable minded person. The plaintiff himself testified that he thought the condition was dangerous, and the other persons who opened the door on occasion, one Mrs. Wedon, testified "it was very dangerous." and another, Michael Johnson also said it was dangerous.
Plaintiff relies upon the rationale expressed in the case of Wilson v. Virgademo, 258 So.2d 572 (La.App.4th Cir. 1972) and Redd v. Sokoloski, 2 So.2d 266 (La.App.2d Cir. 1941) to the effect that where a tenant has knowledge of the generally defective condition of a portion of the rented premises, but it reasonably appears that he might safely use it with the exercise of care, his use in such manner does not constitute contributory negligence that would bar his recovery in an action for damages resulting from the injury. While we agree with that principle, the facts in this case do not come under that rule, but under the expressed exception thereto, that if he was aware of the defect and it was such as to indicate to a reasonable-minded person that use of the defective portion was apparently an eminently dangerous situation, recovery is not permitted. We find, as did the trial judge, that the defect was obviously dangerous.
For the foregoing reasons, the judgment appealed from is affirmed at appellant's cost.
GULOTTA, J., dissenting.
GULOTTA, Judge (dissenting).
I dissent. The accident occurred when plaintiff was injured as he attempted to open an upward swinging warehouse door. The garage-type door was nine feet from the ground with a shell and gravel ramp leading up to it with a crevice four to five inches wide between the door and the edge of the ramp. Plaintiff attempted to open the door by putting one foot on a ledge immediately next to the door and the other foot on the ramp. As he did so, his left foot slipped causing his left leg to become lodged in the crevice between the warehouse and the ramp, thereby injuring his left knee.
Plaintiff bases his suit against the owner on LSA-R.C.C. art. 2322 which provides:
In such instance, the owner of a building is not liable for injuries caused as a result of those defects if the damages were also occasioned by the contributory negligence of plaintiff.
In Gillian v. Lumbermens Mutual Casualty Company, 240 La. 697, 124 So.2d 913 (1960), the court concluded, in a suit against a landlord that knowledge alone of the defective conditions of the premises will not defeat the injured party's claim. In Gilliam the court was faced with a similar situation in that an employee of a tenant sued the owner of the building, or the landlord, for damages resulting allegedly from a defective condition in the premises. That court stated:
In Wilson v. Virgademo, 258 So.2d 572, 575 (La.App., 4th Cir. 1972), which quoted Redd v. Sokoloski, 2 So.2d 266, 268 (La. App., 2d Cir. 1941), the rule was expanded upon to provide that if knowledge of the defect is coupled with the belief that the defect can be used in safety, its use, with the exercise of due care, does not constitute contributory negligence. In Wilson the court was confronted with a tenant's contributory negligence. In our case, we are faced with the claim of contributory negligence of a tenant's employee. For the
In the instant case, Barnes knew of the defective condition of the ramp. However, if he exercised due care in the use of the defective condition, he cannot be guilty of contributory negligence.
Our law is clear that the defense of contributory negligence is an affirmative one which must be specially pleaded and proved by a preponderance of the evidence as any other fact. See LSA-C.C.P. art. 1005. Boure v. New Orleans Public Service, Inc., 255 So.2d 776 (La.App., 4th Cir. 1971), writ refused, 260 La. 857, 257 So.2d 432 (1972).
It then is Pick's burden to show that Barnes failed to exercise due care on the date of the accident, if Barnes is to be denied recovery based on his contributory negligence.
The record reflects that on the morning plaintiff was injured he attempted to open the door in the same manner as he did on every working day for a four-month period. Plaintiff's employer, his employer's wife and a co-employee all testified that they opened the door in exactly the same manner that plaintiff did. Apparently, the easiest and only feasible way to get enough leverage to open the door was to put one's foot on the ledge. No evidence was presented to indicate that Barnes, on the fateful morning, did anything differently than he or the other persons did over a four-month period. The method used to open the door, until the day of the injury, proved safe and satisfactory.
However, defendant maintains that Barnes may have reasonably believed that he could use the premises in safety, but that on the morning of the accident he failed to use due care. Defendant suggests that the rainy weather conditions on the morning of the accident required that plaintiff utilize additional safety precautions because of the slippery conditions caused by the weather. But Pick failed to show that either a more hazardous condition was created by the weather or that Barnes failed to compensate for the additional hazard. We cannot presume merely because plaintiff was injured that he was guilty of contributory negligence. See Turner v. Aetna Casualty and Surety Company, 175 So.2d 304 (La.App., 2d Cir. 1965), writ refused, 247 La. 1094, 176 So.2d 147 (1965) and Gilliam v. Lumbermens Mutual Casualty Company, supra. Defendant simply failed to carry the burden of proof required to show plaintiff is guilty of contributory negligence. Accordingly, I am of the opinion plaintiff is entitled to recovery.