This suit was originally brought by Mary Etta Wolverton, individually and on behalf of her daughter Judy Elaine Wolverton, who was eleven years old in August 1968 when she was injured by a fall on the "up" escalator in the Maison Blanche store on Canal Street in New Orleans. By the time of the trial in 1977, Judy Wolverton was 19 years old and was substituted as party plaintiff on her own behalf by oral motion. Her mother, however, remained a party plaintiff to recover the special damages incurred by her.
Suit was originally brought in the U.S. District Court for the Eastern District of Louisiana under diversity jurisdiction, inasmuch as the Wolvertons are residents of Hattiesburg, Mississippi. Made defendants were City Stores Company (of which Maison Blanche is a subdivision) and Otis Elevator Company (as manufacturer and maintenance contractor for the escalator in question). The claims against both defendant were dismissed for lack of jurisdictional amount.
The instant suit was filed originally against City Stores alone. Otis was added some three years later in a supplemental and amended petition. In addition, City Stores filed a third-party petition against Otis for indemnification or contribution. A subsequent amendment added the City of New Orleans as a defendant; however, as an exception of no cause of action was maintained in favor of the City, and no one has complained of that judgment, that issue is not before us.
The matter was tried on September 26, 1977, and judgment was rendered on September 30, 1977 against defendant Otis alone, in favor of Judy Wolverton in the amount of $6,000, and in favor of her mother for $224. Plaintiffs' suit against City Stores was dismissed, as was the third-party demand of City Stores against Otis. Defendant Otis has appealed from the judgment against it, and plaintiffs have appealed the dismissal of defendant City Stores.
With regard to the appeal by the defendant Otis, based upon the claim that prescription accrued on the claim against it, it is noted that its exception of prescription was filed in the trial court, but the record does not reflect what, if any, ruling was ever made on the exception. On its face this exception would appear to have merit
The appeal of plaintiffs with regard to the dismissal of defendant City Stores—while ultimately resolving itself into an issue of law—necessarily requires initially a review of the facts of the case.
The evidence produced at trial was not particularly enlightening as to what actually occurred. The facts are still in dispute, not as to whether plaintiff Judy Wolverton fell and injured herself on the escalator (which is admitted), but as to the cause of the fall. Plaintiffs' major contention is that, while Judy was riding on the escalator, the escalator made a sudden jerk or jolt, causing Judy to lose her balance, fall and gouge her right knee on the edge of one of the steps. Both defendants, on the other hand, maintain that the escalator could not jerk as plaintiffs claim; rather, they contend, Judy's fall was the result of her own carelessness.
In support of plaintiffs' version is their own testimony that a jerk occurred, as well as the testimony by deposition of two young girls who were with them,
Similarly, Judy's testimony at trial was, for the most part, the same as in her 1970 deposition. There was an understandable effort at trial by counsel for Otis to underscore a seeming contradiction between her deposition and her testimony at trial, by focusing on Judy's description of the escalator movement. In her deposition she had described what occurred as a brief stop in the escalator's motion, "and then it kept on going." However, at trial she stated that the escalator did not stop, but jerked. However, as she stated at the trial, any inconsistency in her statements would appear to have been merely a marginal variation in the description of the word "jerk."
In rebuttal, the defense offered three elevator maintenance experts who testified as to the maintenance procedures employed for the escalators at Maison Blanche. Routine inspections were performed at least once a week and the inspector asked the store maintenance personnel if any problems with the equipment had appeared or had been reported. Mr. Morel, the Otis inspector for the Maison Blanche escalators, stated that he had received no special call complaining of a malfunction in this escalator, and he observed no evidence of any jerking or stopping problem when he inspected it on the Monday following this accident.
Mr. Morel and the other escalator expert witnesses all testified that a jerk, as
However, in any case, there was no adequate proof that a "jerk" could not have occurred. There clearly were no reports of any complaints of jerking made to Otis by Maison Blanche on the day in question, but this alone does not prove that the escalator did not, in fact, jerk. It proves only that no report of the incident was made to Otis.
Defendants also rely heavily on the deposition of Mrs. Katherine Eicke, the staff nurse at Maison Blanche who administered first aid to Judy's injured knee. She testified, and her Report of Injury form reflects, that Mrs. Wolverton told her that her daughter had fallen on the escalator when she turned around to speak to her friends. This report, obviously, is the reason no report of malfunction was made to Otis. The plaintiffs strenuously deny this version of the fall, and Mrs. Wolverton stated that she gave the nurse no details of the accident whatsoever (just that Judy had fallen on the escalator), because no one asked her.
Neither side produced any truly independent witnesses, and under the circumstances it is difficult to say that the trial judge committed manifest error when he concluded, as a finding of fact, that the escalator had made some sort of jerk which caused Judy to fall and injure her knee. Canter v. Koehring Co., 283 So.2d 716 (La. 1973).
It does appear that the trial judge erred, as a matter of law, in dismissing plaintiffs' claim against City Stores and City Stores' third-party demand against Otis. However, the latter question is not before us, inasmuch as it was not appealed by City Stores. Once plaintiff's right to recover has been established, both defendants must be held liable under these facts.
Plaintiffs' allegation against defendant City Stores, as owner and operator of the escalator in question, which was within its custody and control, included negligence in the maintenance of the escalator and responsibility for a defective escalator. Because defendant Otis was the manufacturer of the escalator, as well as the party responsible for its maintenance under the maintenance contract with Maison Blanche,
With regard to the liability of City Stores, under the recent interpretations of Articles 2317
It must be emphasized that it is not intended that the store become regarded as the insurer of its customers, as might be the effect of applying concepts of strict liability in the absence of an "unusual occurrence." However, there was proof of such an occurrence, namely the "jerk" by the escalator. Even though that evidence might be described as moderate in weight, the trial judge specifically concluded in his reasons for judgment that such a jerk had occurred. Consequently, the concept of liability under C.C. Article 2317 is applicable here.
Inasmuch as City Stores, through the Maison Blanche store, had the escalator in its "custody" as per Article 2317 and, under the facts as found by the court below, an unexplained jerk occurred, the requirements for liability without fault (as set out in Loescher, supra) are met. As long ago as 1964, the United States Fifth Circuit Court of Appeals found the following to be a correct statement of Louisiana law:
Although that case concerned an elevator, the same principles are applicable to escalators.
Accordingly, the judgment dismissing the plaintiff's demand against City Stores is reversed, with judgment to be entered in favor of plaintiff. The judgment in favor of the plaintiff against defendant Otis Elevator Company is affirmed.
AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.