*1 following more does which we have been misleading it does than juries
mischief today
good. extend the rule I would case for motor-
adopted in this noninsured indemnity policies policies.
ist to all R.
Kenneth BOWERS, Appellant,
SCHENLEY DISTILLERS, Appellee. INC., Appeals Kentucky.
Court of
Feb. Rehearing
As Modified Denial of July 2, 1971.
566 Leibson, Leibson, Leibson &
Charles M. Louisville, appellant. for Woodward, Grubbs, Hobson D. William Louisville, Fulton, appellee. for HILL, Judge. Jr., P. EDWARD against appellant-plain- juryA found damages personal tiff in suit for for his on injuries sustained in a fall while premises vis- “business whiskey). (computer itor” of taxes Appellant judg- seeks a reversal of the grounds ment entered on the verdict on the verdict; (1) he was entitled to a directed instructions; were in (2) there errors admitted, (3) incompetent evidence (4) prejudiced and he the failure juror court to excuse a trial cause. employee the Alco- appellant, an
hol, Arms Division of and Fire Tobacco Service, sitting the Internal Revenue large in a office built ware- small within house, part distillery at 17th Louisville, Kentucky, Breckinridge and 11, 1967, appel- on December when two steam employees lee’s a hot disconnected resulted pipe over the office. This being hot large volume steam top the metal blown down onto therefrom ap- sides of the over the office. emanating pellant, hearing the from sounds condition, including scampering get out of the men in their efforts heat, frightened and way of became metal the small office onto ran out of fell and sustained stairway from which which the injuries. pres- pounds escaped carried that even sure. There was evidence stairs normal conditions the question: “slippery”; turn now to the appellant fell “worn” and We second ap- did the owe to the apart; were 12 What risers inches pellant? angle Again on Restatement constructed at an we draw that the stairs were Torts, 341A, Second, steep. Law much too § which states: *3 point, questions which At this arise possessor subject of land is to liabili- proceeding should he before fur- “A answered First, ty legal physical to his invitees for harm what was the status ther. carry premises by at his failure to on on the caused to them for accident? The second his activities with reasonable care the time of if, if, is, duty safety only owe their ex- question what did the but should pect that not discover or real- appellant? they to will danger, protect
ize the will fail or against themselves it.” question to the answer first may easier if define the terms come we pertinent quote It is also from Comment “A is a “licensee” and “invitee.” licensee “a” of the above section: person privileged who is to enter or remain obligation possessor “The of the is there- only by possessor’s on land virtue of the fore not to one of limited reasonable consent.” Restatement of Law protect against care to Torts, Second, him conditions § which he does not know or have reason An invitee is defined in the Re know, as in the of the licensee case Torts, Second, statement of the Law of (see 341), protec- but extends also to § 332, as follows: against tion §§ the risk from activ- of harm ities of the invitee knows or has which “(1) An public invitee is either a invitee know, reasonably may reason to where it or a business visitor. expected protect be that he will fail to “(2) public A invitee person notwithstanding is a is such knowl- who himself invited to enter edge.” remain on land or as a public member of the a purpose for for This court has had several occasions
which the land open public. is held to the subject treat the now discussion. In 55, Mackey Allen, Ky., 396 “(3) at A business S.W.2d person visitor is a who page 58 we said: is invited to enter or remain on land for purpose directly indirectly connected “ * * * Restatement of Torts [T]he dealings possessor business with the repeatedly by has been cited this court as of the land.” authority a reliable source of this * ** general subject. really [I]t distillery regulated business is no an makes difference whether she was employees laws under gov licensee, invitee or a bare because right ernment have a to be and remain on basic distinction between the duties of premises distillery. The distil possessor that he an invitee owes lery constructed desig the small “cubicle” duty dangerous con- discovering (with nated an office just room for two dition, only whereas he owes a licensee desks) appel for the exclusive use of the dangerous him of a duty to warn Clearly lant. was a “business posses- condition known to the already meaning visitor” within the of the Restate sor.” ment. He had been “invited” to “enter” appellee’s “premises” Kentucky “remain on” the Virginia See also & Power West purpose directly Stacy, Ky. connected with busi Co. v. 291 164 537 S.W.2d dealings appellee. (1942). ness with the
568 pipes. cold
Having pipes than with appellant’s legal determined that theory accept appellant’s But cannot premises duty appel- status on the we system inherent- piping appellant, lee that a hot owed we now discuss ly dangerous. particular facts and of this circumstances case to ascertain there was whether theory law is more Appellant’s second appellant. breach of to the Gentry, Ky., persuasive. Vernon v. system— on the There two cutoffs this court enumerated (1960), S.W.2d large one cutoff in and an- the basement the doctrine of the conditions under which pipe other on the led to heater. applied: loquitur res be engaged work at two workmen stated question the time of the accident in full “(1) The must have had defendant they they thought had turned the steam off instrumentality management *4 heater, some pipe that led to the but for cir- injury; (2) the the which caused not com- reason the cutoff did unknown that, according be such cumstances must appellee’s wit- pletely close. of the One experi- the knowledge to common and speculated piece little of nesses that “some mankind, could not ence of the accident something gets the seat that scale or control happened having if those have give you complete closure.” does not Oth- management negligent; had not been and speculated simply a fail- ers that there was have re- (3) plaintiff’s injury the must completely ure to turn the cutoff valve off. the accident.” sulted from rate, all and steam were At in basement about the cutoff the before case, appellee con In the instant used, first giving that the was evidence complete sys cedes it was in control em- certainly not closed. These valve was tem and that the steam and water would they work- ployees appellee of knew had been escaped have if the valve not not ing dangerous a substance when with think completely. do we closed Neither n properly They and confined. controlled differ minds that reasonable could sure the steam important it to be knew was appellant’s proximate of the the cause the uncoupling line cut before was off injuries. that the There was evidence distillery oper- not in The was pipe. appellant fell was stairway from which accident. There ation on the date of the doubt, more so dry and, no slick when why they could not have no reason was appellant ran when it was when wet —as Furthermore, off both cutoffs. turned appellant’s of it. But the real cause over the small office they appellant was in knew get necessity of exciting injuries was the they disconnected place under the where thought ting away from what pipe. danger in apparent was danger. This flight there by of creased observation Appellant argues that he was entitled by the workmen. theory a directed verdict first on “abnormally appellee careless with cases, in the ab many tort activities”; things and sec- dangerous acts, the negligent of proof of direct sence ond, doc- appellee is liable under the upon presumptions rely plaintiff must loquitur.” trine of “res may be drawn from inferences which negli proving proven. The burden facts sure, To uncontrolled water and be plaintiff always remains with gence combination, but dangerous steam are a shown, but, of circumstances upon the basis properly con they perfectly are safe when presump to a rebuttable entitled be pipes. in New fined safe Steamboat negli inference of or to a permissible tion King, (1853) World 16 How. v. U. S. presumption” gence. terms “rebuttable degree Obviously greater 1019. merely L.Ed. de are inference” “permissible required working hot ac- weight must be care when scriptive satisfactorily explain par- away it corded circumstantial evidence does not obligation case to maintain the valve depending upon degree ticular probability particular by proper facts working reflected order. Tucker, Ky., Lee shown. 365 S.W.2d failed to has overcome presumption negligence, rebuttable to a entitled directed verdict If, light everyday expe in the upon plaintiff a mo- that issue. The made rience, probabilities that an accident tion for a directed and a motion for verdict not would have occurred in the absence of judgment notwithstanding the verdict. are negligence overwhelming so that rea his properly preserved He has claim to compelled sonable men would be to a con the issue of upon directed verdict causation, of negligent clusion a rebuttable negligence issue need re- and that not be
presumption of negligence arises unnecessary to dis- tried. Therefore it showing that the accident occurred. When cuss error pertaining the second claimed presumption a rebuttable arises and the de ruling the instruction trial or the all, proof plaintiff fendant offers no at judge “inter-office excluding an communi- is entitled to a directed if verdict. Even report cation” or a of the accident made the defendant explanatory offers evidence appellee’s employees. one *5 but that evidence fails reduce the con probability clusive nature of negli the of Appellant’s argument final relates to the gence, plaintiff the is still entitled to a di failure of the trial to exclude juror court a Tucker, rected verdict. supra. Lee v. implied likely bias. This situation will pass not arise on we another trial. So it. think We that is the case here. The danger inherent in permitting steam to es- By argument, way appel- of counter the cape in an building industrial great is so says lee appellant that was not entitled ato require high degree a of caution while he, appellant, directed verdict because disconnecting steam pipes. appellee The guilty contributory negligence. Appel- of had exclusive control over general the solely lee contends “Bowers ran that: maintenance of pipes the and valves. from no immediate dan- noise. He was ger from the that danger real probability that, during process the being discharged pipe 14 feet of repair, steam escape would not from the got into office. in the No the air. pipes in the absence negligence of is so have got No steam on Bowers. He could overwhelming that is entitled to danger He away no at all. with walked presumption rebuttable negligence. running in a frantic fell because he was Appellee’s employees testified that the motion.”
valve which controlled the steam in the been Bowers testified that had he walk pipes was closed. But the evidence demon- ing slipped. Appellee he would never have strates it was not closed. Either the points familiarity appellant’s also out with employee failed to valve, shut the or for premises. support argument, the In this some reason the valve failed to shut when Seelbach, Mell Inc. the cites employee the attempted to close it. man, Ky. 790, 18 (1943). 170 S.W.2d event, either the had duty significant to be very There is a distinction close the valve before disconnecting the present drawn between the Seelbach and also a to maintain pipes former, case, Mellman was in that in proper valves working condition. ap stairway in no walking casually down hurry. certainly there no And parent testimony piece that a of sediment in the exciting emergency as is shown lodged could have valve seat explain may why close, the valve didn’t present but case. NEIKIRK, HILL, Jr., P. known and pretty well EDWARD
The law STEINFELD, PALMORE, JJ., con- required to that one is not well established course proper correct and cur. take the most of his emergency in an not
when acting only. REED, in result J., concurs react ac making. He act and own MILLIKEN, sitting. not J.,C. cording experience and to his own Yet, in all this what he sees and hears. OSBORNE, J., dissents. conduct, test is whether
range of OSBORNE, Judge (dissenting). reasonably acted under all the circumstanc reasonably prudent appears Here es. applied law disagree with the not I do light guiding is the man whose conduct disagree with I do opinion. majority the conduct us all. agree that I of that law. application applied. loquitur res doctrine of not appellant was hold that We raise of this case facts agree further I a mat negligence as guilty contributory negligence on presumption a rebuttable question was jury but that a ter of law part I with part the defendant. presented. the facts shown they hold majority when per- such as will are not by the defendant Upon an- judgment reversed. the loss was jury to infer mit the trial, direct a verdict other will court cause. non-negligent by a not occasioned appel- question of for the on the on the negligence fail without often Valves question negligence and submit the lee’s part anyone. appellant’s contributory negligence ' respectfully reasons I damages foregoing For the along other issues as to dissent. jury.