
    Roger Dalton SMITH v. LOUISIANA CEMENT COMPANY, INC.
    No. 11953.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 15, 1981.
    
      Martzell, Montero & Lamothe, Wilson M. Montero, Jr., New Orleans, for plaintiff-appellant.
    Normann & Normann, David R. Nor-mann, New Orleans, for defendant-appellee.
    Before SAMUEL, BAILES and McBride, jj.
   JULIAN E. BAILES, Judge Pro Tern.

This is a tort action brought by Roger Dalton Smith to recover damages for personal injuries sustained on the premises of Louisiana Cement Company, Inc. on August 29, 1975. The plaintiff at the time of his injury was employed as a truck driver by Quality Transport, Inc., a company which specialized in transporting bulk materials. The workmen’s compensation insurer, Texas General Indemnity Company, intervened herein to recover all workmen’s compensation benefits paid to plaintiff.

The suit was filed on August 3, 1976 and was ultimately tried on May 17, 1979, by which time in excess of $16,000.00 had been paid by intervenor in workmen’s compensation and $5,212.25 in medical expenses. On May 22,1979 the trial court denied recovery to plaintiff and intervenor, thus this appeal.

On the day of his injury plaintiff was dispatched with his transport unit consisting of a tractor and trailer, commonly called an 18-wheeler, to the defendant’s storage and dispensing facility located at 14900 Intracoastal Drive, New Orleans, to haul a load of bulk material to a Baton Rouge customer.

In the loading process the hauling unit acquires a residue of the loaded bulk material on its exterior parts. This deposit of the material, or “dust” as it was called, must be washed from the unit before leaving the premises of the defendant. The standard operating procedure is for the truck driver to move his unit to a wash area which is simply a concrete slab adjacent to which there is a water faucet and large hose. It should be noted that this concrete slab or wash pad was not large enough to accommodate more than the trailer. The tractor was necessarily located forward of the wash slab.

By reason of the repeated use of the wash rack water continuously accumulated around the entire area to such extent that when plaintiff stepped from the cab of the tractor he always stepped into the accumulated water and resultant mud.

After driving the trailer onto the wash rack and securing the water hose, the plaintiff washed down the lower portion of the unit and then ascended the ladder that was integral to the trailer on the rear, from which position he washed the under-portion of the trailer. As plaintiff descended the ladder his right foot slipped, causing his left knee to strike a rung. After recovering from the immediate intense pain of the injury he stepped off the ladder, mounted his truck and proceeded to deliver his cargo. Three days subsequently plaintiff sought medical assistance for his injury.

The record fully supports the following factual findings: the appellant, at the time of his injury, was an experienced truck driver who was thoroughly familiar with his equipment and with the area in which he was injured. He had driven, according to his own testimony, into the defendant’s premises and onto the wash rack area over one hundred times prior to the occasion of his injury. He was aware of the presence of the mud and the deposit of mud on his boots. He was aware that there was always mud in this area.

The issues on this appeal as contended by appellant are: (1) Whether the defendant-appellee was negligent in permitting an unreasonably dangerous condition to exist in the area of the wash rack, and (2) whether the plaintiff-appellant should be adjudged contributorily negligent.

Appellant argues that as he occupied the status of an invitee the appellee owed him the duty of reasonable ordinary care, which duty included the prior discovery of such dangerous conditions, to correct these dangerous conditions or to warn appellant of such conditions. The theory of appellant’s case is that the large mud hole around the concrete wash pad or rack was an unreasonably dangerous condition of which appellee had knowledge. In the discharge of his duties as a truck driver there was no way in which he could avoid the danger. He was required to drive his unit into the undrained muddy area in order to wash the residue from his equipment. This was a danger he could not avoid if he was to comply with the standard operating procedure of his employer. Further, two factors combined to put the appellant in his untenable position — the failure of the appellee to drain the area and his failure to provide an adequate concrete wash rack area. In alighting from his tractor he was obligated to step into the area of the mud. It was in this manner that mud was placed on his boots and it was this mud which caused his right foot to slip, propelling his left knee into the ladder rung.

The defendant’s argument in defense is based in part on the principles enunciated in Shelton v. Aetna Casualty & Surety Company, 334 So.2d 406 (La. 1976). The issue appears to be whether in the management of his property the defendant has acted as a reasonable man in view of the probability of injury to others.

The cause in fact of the plaintiff’s accident was the mud on plaintiff’s boots which was present because of the lack of adequate drainage on the property of the defendant. However, this does not establish liability on the part of the landowner. Before there is liability on the part of the landowner it must be established that the landowner breached a legal duty to protect the plaintiff against this particular risk involved. To determine if there was a duty owed by the landowner we must examine the particular facts before us. We find and so hold that the landowner owed plaintiff a duty to discover any unreasonably dangerous condition on the premises and to either correct the condition or to warn him of its existence.

Apropos to this case is the following statement from Shelton v. Aetna Casualty & Surety Company, supra:

“The duty of a landowner is not to insure against the possibility of an accident on his premises, but rather to act reasonably in view of the probability of injury to others. Thus, the landowner is not liable for an injury resulting from a condition which should have been observed by an individual in the exercise of reasonable care or which was as obvious to a visitor as to the landowner. Alexander v. General Accident Fire and Life Assurance Corp., supra, [98 So.2d 730 (La.App. 1st Cir. 1957)]; Crittenden v. Fidelity and Casualty Co., 83 So.2d 538 (La.App.2d Cir. 1955).”

We are compelled to find that the appellant was fully cognizant of the existing condition and he must be found to have assumed this risk attendant to the discharge of his duty of washing the dust from the exterior of his trailer. Assuming ar-guendo that the defendant was guilty of negligence in permitting the undrained area to persist on its premises, the full knowledge of this condition thereof possessed by the appellant denies his recovery.

Accordingly, for the foregoing reasons, the judgment appealed is affirmed at appellant’s cost.

AFFIRMED.

McBRIDE, J., dissents with reasons.

McBRIDE, Judge,

dissenting.

Although liability was not found in these cases, Hill v. Lundin and Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Shelton v. Aetna Casualty and Surety Company, 334 So.2d 406 (La. 1976); and Walker v. Union Oil Mill, Inc., 369 So.2d 1043 (La. 1979), the Supreme Court has defined the requisites for recovery which are present in this case, and I must dissent.

The inquiry here focuses on the duty and standard of care owed by this defendant to this plaintiff considering the facts and circumstances of this case.

What duty did defendant have to plaintiff? Defendant had the duty of exercising reasonable care for the safety of persons on its premises and the duty of not exposing such persons to unreasonable risks of injury or harm. Shelton v. Aetna and Walker v. Union, supra.

Defendant’s business required the wash slab; and the plaintiff and all other truck drivers were required to wash down before entering the highway as not to be in violation of R.S. 32:289-B. Therefore the question as to whether defendant managed its property as a reasonable man in view of the probability of injury to others must be answered from the facts.

The facts clearly show that the narrow wash slab required expert backing as the slab is to narrow to accommodate tractors and any deviation from perfect would necessarily cause the trailer wheels to drop into the muddy mire that surrounded the slab. Additionally, plaintiff was required to alight from his tractor into the mud and walk some distance in it to obtain a large hose (approximately IV2" in diameter), and to climb to the top of his rig on a straight steel ladder and wash down the truck.

The conditions described existed for some time. One must conclude that they were known to defendant.

It is not only reasonable to conclude but necessary to conclude that defendant could foresee harm to others from this condition and that it did not manage it’s property as a reasonable man and created an unreasonable risk of injury.

The presence of plaintiff on defendant’s property arose out of mutual interests which was beneficial to defendant and therefore plaintiff’s status was that of an “invitee”. The duty owed by defendant was to maintain it’s premises in a reasonably safe condition for such use by the invitee as is consistent with his purpose. Mercer v. Tremont, 19 So.2d 270 (La.App.2nd Cir. 1944).

“The duty owed an invitee includes the use of reasonable care and the discovery of reasonably foreseeable conditions which may be dangerous and result in injury, especially where there is time for the correction of the condition or the giving of warning to the invitee of the danger...”
Howard v. Early Chevrolet-Pontiac-Cadillac, Inc., 150 So.2d 309 (La.App. 2nd Cir. 1963)

The Supreme Court while denying liability in Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La. 1976) abolished the classification of invitee, et cetera, as being of little value in applying C.C. 2316(15); and in Shelton and Walker, supra, adopted the duty-risk approach by a particular person to a particular person rather than by common law categories. The facts in this case show the duty and the violation of the duty and that plaintiff had no choice other than to act as he did.

The condition of defendant’s premises and the mud on plaintiff’s boot was the cause in fact of plaintiff’s injury and was there due to defendant’s negligence.

No negligence has been proved against plaintiff nor does the record establish that he assumed the risk. The defendant furnished the wash slab in furtherance of it’s business in selling cement materials and I submit that it’s duty to the truck drivers was the same as an employer or executive officer as the drivers had no other alternative and that the theory and holdings of the following cases are controlling.

“. . . a workman’s superior cannot create or permit danger and send the workman into it with a warning (none given here) and escape liability on a theory that the workman was contributorily negligent merely by going into the danger. The workman’s only other alternatives are to tell his superior how to run the job or quit.”
“. . . The test of negligence is reasonableness. While it may be true that the reasonable man would wish to avoid the known risk here, an employee is not entirely free to do so. He cannot simply decline to do the work, because he would then subject himself to a loss of his job and his means of support for self and family.. .”
“... When the party charged with the responsibility of observing safety factors fails to do so, it is grossly unjust to place the blame for a resulting accident on the person who poured the last cup of water before the defective dam broke, unless that person also exercises a substantial amount of knowledgeable control over the dangerous situation. There was no such knowledge or control by plaintiff in the present case. We concluded that the plaintiff’s conduct was reasonable under the circumstances...”
“... he is not to be judged as contributo-rily negligent just because he fails to stop, to analyze the possible alternatives and with some superior wisdom, calculate the relative advantages and disadvantages of the alternatives before he acts. In other words, if the safe alternative is as readily available and as obvious to the workman as is the danger of not choosing it then the workman is guilty of contributory negligence in performing the dangerous task.” Galloway v. Employers Mutual of Wausau, 286 So.2d 676 (La.App. 4th Cir. 1973—Cert, denied)—Chaney v. Brupbacher, 242 So.2d 627 (La.App. 4th Cir. 1970). “We therefore conclude that the trial judge properly rejected the defense of assumption of risk.” Mitchell v. Hepinstall Steel Co., 264 So.2d 325 (La.App. 4th Cir. 1972 — Cert, denied). “We conclude, as apparently did the jury, that the appellants failed to prove contributory negligence or assumption of risk on the part of O’Keefe. The duties of his work required him to be where he was, and he was doing his best to discharge those duties.” O’Keefe v. Warner, 288 So.2d 911 (La.App. 1st Cir. 1973—Cert, denied).
“We believe that by the term ‘a readily available reasonable alternative’ is meant that another option was open to the employee; he could have worked elsewhere, at a place which was both safe and free of any risk of harm. As regards an alternate means of access to the muffler pits, none existed or was furnished. There was no other means of ingress into and egress from, the muffler pits other than the steps upon which plaintiff Billedeaux fell.” Billedeaux v. Adams, 355 So.2d 1345 (La.App. 3rd Cir. 1978 — Cert, denied on liability).

All requirements for recovery have been met and plaintiff should have been awarded substantial damages.  