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Docket Number

No. 20882.

Attorney(S)

Parnell J. Hyland, Porteous Johnson, New Orleans, for defendants-appellants. Henry C. Vosbein, Vosbein Gruber, New Orleans, for plaintiff-appellee.

Judges

JANVIER, Judge.

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Smart Summary

Court of Appeal of Louisiana, Orleans — Summary of Opinion

Factual and Procedural Background

This tort action arose after plaintiff Frank J. Albrecht suffered a mashed little finger of his right hand when defendant Herman Gaethe shut the left rear door of Gaethe's four-door sedan while Albrecht's right hand was holding the center post on which that door was hinged. Plaintiff sued Gaethe and Gaethe's liability insurer, All State Insurance Company, seeking solidary judgment for $4,897.81 (including pain and suffering and medical expenses). Defendants admitted the accident but denied Gaethe's negligence and pleaded, in the alternative, that Albrecht was contributorily negligent in placing his hand in a dangerous position and that Albrecht was a borrowed employee of Gaethe, which would limit recovery (if any) to the Workmen's Compensation Law. Defendants also averred that medical expenses had been paid under the insurance policy's medical coverage.

At trial in the Civil District Court for the Parish of Orleans, judgment was entered for plaintiff in the amount of $1,200, plus a medical expert fee taxed as costs. Defendants appealed. The Court of Appeal (Janvier, J.) considered whether Albrecht was a borrowed employee and, if not, whether the proximate cause of the injury was the negligence of Gaethe or the contributory negligence of Albrecht.

Legal Issues Presented

Whether plaintiff Frank J. Albrecht was a "borrowed employee" of defendant Herman Gaethe such that any recovery would be exclusively under the Workmen's Compensation Law rather than in tort.
If the tort framework applied, whether the proximate cause of the accident was defendant Gaethe's negligence in closing the car door or plaintiff Albrecht's contributory negligence in placing his hand in a dangerous position between the door and the center post.

Arguments of the Parties

Plaintiff's Arguments

Plaintiff alleged that Gaethe was negligent in shutting the left rear door while Albrecht's hand was clasping the center post, causing injury and entitling him to recover for pain and suffering, medical expenses, and lost earnings.

Defendants' Arguments

Defendants admitted the accident but denied Gaethe's negligence in closing the door.
In the alternative, defendants alleged that Albrecht was contributorily negligent because he placed his hand in a dangerous position, knowing or reasonably expecting that the car doors would be shut after unloading.
Also in the alternative, defendants contended that Albrecht was a borrowed employee of Gaethe and, if so, compensation (not tort recovery) would be the exclusive remedy under LSA-R.S. 23:1021 et seq.
Defendants further averred that medical expenses had already been paid by All State Insurance Company under the policy's medical coverage clause, limiting any additional medical- expense claim.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Smith v. Illinois Cent. R. Co., 10 La. App. 342, 120 So. 405	Establishes that if the injured plaintiff was at fault contributing proximately to the accident, the plaintiff cannot recover notwithstanding defendant's negligence.	Quoted to support the proposition that contributory negligence, when shown, precludes recovery and thus should be considered first.
Lehon v. New Orleans Public Service, Inc., 10 La. App. 715, 123 So. 172, 174	States that where the proximate cause of the accident is the injured person's negligence, there is no need to discuss negligence of the defendant because contributory negligence bars recovery.	Relied upon to justify addressing contributory negligence as dispositive and to cite supporting cases (Gibbens, Townsend, Brown).
Gibbens v. New Orleans Terminal Co., 159 La. 347, 105 So. 367; Townsend v. Missouri Pacific R. Co., 6 La. App. 303; Brown v. [Texas P.] Railroad Co., 42 La. Ann. 350, 7 So. 682	Supporting authorities cited in Lehon for the principle that contributory negligence bars recovery even if the other party was also at fault.	Referenced indirectly through Lehon to bolster the court's approach that contributory negligence can be dispositive.
Woodall v. Southern Scrap Material Co., La. App., 40 So.2d 495, 496	Observes that when evidence of contributory negligence predominates, it may be appropriate to address it first because it can preclude recovery regardless of defendant's primary negligence.	Cited to support the procedural and analytical decision to examine contributory negligence first in the present case.
Herbert v. White Top Cabs, Inc., La. App., 8 So.2d 158, 159	Holds that a passenger who extended a finger into a small opening between a partially closed cab door and the body was contributorily negligent and the carrier was not liable despite being held to a high degree of care.	Identified as the only similar case found; used as an analogous factual authority supporting the court's conclusion that plaintiff was contributorily negligent and recovery should be denied.

Court's Reasoning and Analysis

The court proceeded in two analytical stages: first resolving whether Albrecht was a borrowed employee (which would invoke exclusive remedies under the Workmen's Compensation Law), and second, if not, determining causation and liability under tort law.

On the employment question the court found that Albrecht was not a borrowed employee of Gaethe. Albrecht was the manager of the Karno Brothers retail store and was involved in unloading merchandise in the course of his duties for Karno Brothers. Because his activities were connected to his employment for Karno Brothers, any remedy against Gaethe would proceed in tort rather than under the compensation statute.

Turning to fault and proximate cause, the court explained its choice to address contributory negligence before considering primary negligence, citing Smith, Lehon, and Woodall for the principle that where the injured party's negligence is the proximate cause, recovery is barred and it is efficient to resolve that question first.

The court reviewed the testimony and facts: Gaethe used his car to transport and return merchandise between stores; the car's left-side doors were open while Gaethe and Albrecht unloaded. Albrecht conceded only that he "presumed" the rear had been unloaded and alleged a small package remained on the front seat which he attempted to retrieve. The court noted that Albrecht could give no description of the package and that the existence of such a package was doubtful.

According to Albrecht's account, he put his right knee on the front seat, reached in with his left hand for the package, and placed his right hand around the center post of the automobile from the outside while the left rear door was open; Gaethe then closed the rear door, and Albrecht's right little finger was caught and mashed. Gaethe described the act as instinctive: after unloading the rear, he turned away carrying clothing and instinctively closed the open door with his left hand.

The court characterized Gaethe's act of closing the door as a natural, spontaneous action that almost anyone would have performed under the circumstances and concluded that if it was a fault at all, it was of "infinitesimal importance" compared to Albrecht's more causally connected conduct. The court emphasized that Albrecht should have realized doors hanging out over a busy sidewalk would properly be closed promptly and that there was no necessity for him to put his hand in the dangerous position between the door and the post. Based on these facts and the cited authorities, the court determined that Albrecht's conduct constituted contributory negligence that was the proximate cause of his injury.

The court also considered Herbert v. White Top Cabs as a factual analogue and observed that even carriers owing a high degree of care were not held liable where the injured party extended a finger into a small opening and thus was contributorily negligent.

Holding and Implications

The judgment of the lower court is annulled, avoided and reversed, and plaintiff's suit is dismissed at his cost.

Implications: The direct effect is to deny plaintiff any recovery against defendant Gaethe and All State Insurance Company and to reverse the trial-court award. The court's decision rests on the conclusion that plaintiff's contributory negligence was the proximate cause of the injury. The opinion does not announce or purport to establish a new legal rule beyond applying existing jurisprudence addressing contributory negligence in similar factual contexts.

This summary is based exclusively on the information contained in the provided opinion.

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Frank J. ALBRECHT v. Herman GAETHE and All State Insurance Company.

JANVIER, Judge.

This is an action in tort. The little finger of the right hand of plaintiff was mashed when defendant, Herman Gaethe, shut the left rear door of his automobile as plaintiff, with his right hand, was holding the center post on which the door was hinged.

Alleging that defendant, Herman Gaethe, was negligent in shutting the door while his hand was clasping the door post, plaintiff, Frank J. Albrecht, brought this suit against Gaethe, and his liability insurance carrier, All State Insurance Company, praying for solidary judgment against them in the sum of $4,897.81 made up of a claim for $4,500 for physical and mental pain, suffering, shock, etc., and the balance, to-wit $397.81, made up of medical expenses, loss of earnings, etc.

While defendants admitted the occurrence of the accident, they denied that defendant Gaethe was negligent in closing the door, and, in the alternative, they alleged that the proximate cause of the accident was the contributory negligence of Albrecht himself in placing his hand in the dangerous position in which it was, although he knew or should have known that all of the contents of the car having been taken out, the doors would be shut by the owner of the car.

Defendants, also in the alternative, averred that under the circumstances shown the plaintiff Albrecht was a borrowed employee of the defendant Gaethe and that, therefore, if there exists in plaintiff any right to recover, it is under our Workmen's Compensation Law (LSA-R.S. 23:1021 et seq.) and not in tort under LSA-Civil Code, Article 2315.

Defendants further averred that in any event there exists in plaintiff no right to claim reimbursement for medical expenses since the defendant All State Insurance Company, because of a "medical coverage" clause in the policy of liability insurance, has already paid all medical expenses for which plaintiff was or could be liable.

In the Civil District Court for the Parish of Orleans there was judgment in favor of plaintiff solidarily against both defendants in the sum of $1,200, and there was further judgment fixing and taxing as part of the costs a fee of $50 for a medical expert. Defendants have appealed suspensively.

If plaintiff was a borrowed employee of the defendant Gaethe, and, as such, was engaged in work furthering a hazardous feature of the business of defendant, then there is no cause of action in tort since, in such cases, the recovery is exclusively under the compensation statute. Let us then determine just what the facts were.

Plaintiff Albrecht was manager of a retail clothing store operated on St. Charles Street, in downtown New Orleans, by Karno Brothers. Gaethe operated a somewhat similar establishment in another area in the business section of New Orleans, and it frequently happened that Gaethe would secure from Karno Brothers, through Albrecht the manager, clothing to be put on sale in Gaethe's establishment, and it also frequently happened that this merchandise, if unsold by Gaethe for any considerable length of time, would be returned to Karno Brothers.

Gaethe owned a 4-door sedan automobile and used this car in transporting merchandise back and forth between his own establishment and that of Karno Brothers.

On the occasion of the occurrence of this accident Gaethe was returning merchandise from his establishment to Karno Brothers and had parked his automobile with its left side along the river side curb of St. Charles Street opposite the St. Charles Hotel and in front of the Karno establishment. Both of the left side doors of the car were allowed to swing open as Gaethe and Albrecht unloaded the merchandise from the car, taking it into the Karno establishment. Apparently the unloading had been completed so far as the rear of the car was concerned, Albrecht himself conceding that he "presumed" that the rear portion of the car had been completely unloaded asserting, however, that there remained on the front seat alongside Mrs. Gaethe, who was seated on the right front seat, a small package and that he was attempting to remove the package when the accident occurred.

He can give no description whatever of the package nor of its size nor of what it contained, and whether there was any such package is doubtful. He says that he put his right knee on the front seat of the car, reached in with his left hand to pick up the package and then put his right hand around the center post of the automobile, the left rear door being at that time open, and that when Gaethe, having completed the unloading of the rear portion of the car, closed the rear door, his right little finger was caught in the crack on the hinge side of the rear door and was mashed so that one joint of his finger was broken. He says that he put his right hand from the outside of the car into this crack.

We are well convinced that Albrecht did not become a borrowed employee of Gaethe. He was interested in unloading the goods because he was manager of the Karno establishment, and it was in the conduct of his work for Karno Brothers that he was hurt. Therefore, if he has a cause of action against Gaethe, it is in tort and not in workmen's compensation.

We thus pass to a consideration of the question of whose negligence caused the accident. Was it negligence of Gaethe in closing the rear door without making certain that Albrecht's hand was not between the door and the post or was it the negligence of Albrecht himself in placing his hand in that dangerous position?

When a suit is based on a charge of negligence and the defense is a denial of negligence and an alternative plea of contributory negligence, it is sometimes advisable to first consider the plea of contributory negligence, for if the facts lead to the conclusion that there was contributory negligence without which the accident would not have occurred, it is unnecessary to determine whether there was primary negligence in the defendant.

In Smith v. Illinois Cent. R. Co., 10 La. App. 342, 120 So. 405, appears the following:

"Before discussing the actions of defendant's employees, it seems to us advisable to determine whether Smith himself was free from fault, because, whatever may have been the negligence of defendant's employees, plaintiff cannot recover if Smith was guilty of any negligence which contributed proximately to the accident."

In Lehon v. New Orleans Public Service, Inc., 10 La. App. 715, 123 So. 172, 174, we said:

"Since we are of the opinion that the proximate cause of the accident was the negligence of the driver of plaintiff's car, it will serve no good purpose to discuss the question of whether or not there was negligence on the part of the defendant, as the law is well settled that, where an accident is caused by the contributing negligence of a person injured, he cannot recover, notwithstanding the fact that the other party may also have been at fault. Gibbens v. New Orleans Terminal Co., 159 La. 347, 105 So. 367; Townsend v. Missouri Pacific R. Co., 6 La. App. 303; Brown v. [Texas P.] Railroad Co., 42 La. Ann. 350, 7 So 682, 21 Am.St. Rep. 374."

Also note the following in Woodall v. Southern Scrap Material Co., La. App., 40 So.2d 495, 496:

"* * * it sometimes happens that evidence tending to show contributory negligence seems to stand out predominantly, and in such cases it may be better to consider that evidence first because, if it appears that the true cause of the accident was the negligence or contributory negligence of the person injured or killed, then there can be no recovery regardless of whether there was or was not primary negligence chargeable to the defendant."

It may have been negligence on the part of Gaethe to close the door when he did without looking to see whether Albrecht's hand was in that dangerous position. We do not determine this. If Gaethe was negligent in slamming the door, his negligence, insofar as the proximate cause of the accident is concerned, played a part of infinitesimal importance when compared to the more causally connected negligence of Albrecht who unnecessarily placed his hand in a most dangerous position.

Gaethe's closing of the door was the spontaneous act which almost anyone would have committed under the same circumstances. He had completed the unloading of the rear of the car and was stepping away from it with clothing in his right hand. As he left the car he turned to his right and, realizing that the open door must be shut, with his left hand he instinctively closed it. As we have already said, this was the natural instinctive act of anyone. If it was fault, it was not the proximate cause which, as we have stated, was the negligence of Albrecht himself.

Gaethe himself tells the story of the occurrence in the following words: "I went into the car to get the clothing out. My back was turned towards him (Albrecht) so when I went to move my clothes out I had to turn to the right, and getting away from the door with my left hand I closed the door."

Albrecht says that he knew or presumed that the rear portion of the car had been unloaded and that he put his hand into the crack between the door and the post from the outside of the car. Albrecht should have realized that, since the doors of the car where hung out over the sidewalk of a busy business street, it was proper that they should be closed as soon as the unloading could be completed. Thus he should have realized that Gaethe would close the rear door. There was no necessity whatever for him to put his hand in the extremely dangerous position in which he placed it and we think that in doing so he was guilty or contributory negligence.

A diligent search by counsel of the jurisprudence of this State has brought to our attention only one case, the facts of which, to some extent, resemble those found here, Herbert v. White Top Cabs, Inc., La. App., 8 So.2d 158, 159. There two passengers alighted from a taxicab. One of them partially closed the door when the fingers of one hand of one of the passengers (plaintiff) extended over the top of a door between it and the top of the cab. It was alleged that, while plaintiff's fingers were in that position, the driver of the taxicab completed the closing of the door, with the result that plaintiff's fingers were injured. The suit was brought against the taxicab company and we held that, under the facts shown there, even if plaintiff's story that the driver of the cab had completed the closing of the door was correct, there would have been no liability in the taxicab company. We said, as to plaintiff:

"she was contributorily negligent in extending her little finger into the very small opening left between the partially closed door and the body of the car."

There the defendant was a taxicab company and, as a carrier, admittedly owed to the plaintiff the highest degree of care.

Our conclusion is that the proximate cause of this accident was the negligence of plaintiff himself and that, as a result thereof, he should not be permitted to recover.

The judgment appealed from is annulled, avoided and reversed and plaintiff's suit is dismissed at his cost.

Reversed.

ALBRECHT v. GAETHE