Spurlock v. Schwegmann Bros. Giant SupermarketSpurlock v. Schwegmann Bros. Giant Supermarket
Hоward SPURLOCK, Jr., and Isabelle B. Spurlock on her own behalf and on Behalf of her minor children, Joseph Spurlock and Linda Spurlock
v.
SCHWEGMANN BROS. GIANT SUPERMARKET and XYZ Insurance Company.
Court of Appeal of Louisiana, Fourth Circuit.
*21 Belhia V. Martin, New Orleans, for plaintiff-appellants Howard Spurlock, Jr., and Isabelle B. Spurlock, on her own behalf and on behalf of her minor children, Joseph Spurlock and Linda Spurlock.
Madison C. Moseley, Blue, Williams & Buckley, Metairie, for defendant-appellee Schwegmann Bros. Giant Supermarket аnd XYZ Ins. Co.
Before KLEES, BYRNES and LOBRANO, JJ.
KLEES, Judge.
Plaintiffs, as survivors of the deceased, Howard Spurlock, Sr., have appealed from a summary judgment rendered in favor of defendant. It is contended that the trial court erred in granting summary judgment as the record and facts show material issues of fact which are litigable for trial on the merits. We disagree and affirm the summary judgment.
On November 5, 1980, Howard Spurlock, Sr., was purchasing gas for his automobile at the self-service station, owned and operated by defendant, Schwegmann Brothers Giant Supermarkets, located at 1325 Annunciation Street in the City of New Orleans. While Spurlock was pumping gas in the rear of the car, Marcel Carter drove his car into the station and stopped behind Spurlock. Since Carter could not reach the second pump for lack of space, he put the car in neutral, left the engine running, and got out of his car to put air in his tires. After hе closed the door to the car, the car moved forward and hit Spurlock pinning him between the two cars. Carter got back in his car and pulled away from Spurlock's car causing Spurlock to fall to the side.
Spurlock was taken to Charity Hospital where he died five days later as a result of complications from his injuries. Spurlock is survived by his widow, Isabelle B. Spurlock, two minor children, Joseph and Linda *22 Spurlock, and a major child, Frank Spurlock. He is also survived by four major children from a previous marriage to Dorothy Thomas Spurlock, Howard Spurlock, Jr., Deborah Ann Spurlock, Hurel Lee Spurlock Northern, and Robert Louis Spurlock.
Isabellе Spurlock, on behalf of herself and the two minor children, and Howard Spurlock, Jr., filed suit against Schwegmann for damages for injuries to and the resultant death of Spurlock. The other survivors intervened in the suit also seeking damаges for the death of their father. Schwegmann filed a Motion for Summary Judgment contending there was no genuine issue of material fact concerning its liability. The trial court granted the motion. It is from that judgment that plaintiffs appeal.
Plaintiffs theorize in their action that Schwegmann's agents and employees failed to properly supervise motor vehicles at the gas station, and that Schwegmann failed to warn its customers of the danger of pumping gas at the rear of their cars. Because of the failure to supervise and the failure to warn, they allege that Schwegmann was negligent in causing Spurlock's injuries and death.
In support of the Motion for Summary Judgment, Schwegmann contends the following:
1. that the accident was caused solely and entirely by the negligence of Marcel Carter;
2. that there existed no duty on the part of Schwegmann's to protect Spurlock from the injury he sustained;
3. Schwegmann's did not breach any duty to Spurlock; and
4. the alleged acts and/or omissions of Schwegmann's do not constitute a proximate cause of the injuries suffered by Spurlock.
In opposition to the Motion for Summary Judgment, plaintiffs contеnd the following:
1. Schwegmann owed a duty to Spurlock to keep the premises in a safe manner by installing barriers between cars at the pumps or establishing car lanes for customers;
2. Schwegmann could foreseе that an invitee may be injured where there were no warnings about the danger of leaving a car engine running while pumping gas;
3. there is a substantial issue of fact concerning the liability of Schwegmann in that Schwegmann's employees were present at the scene and had the last clear chance to warn Spurlock of the oncoming car; and
4. Since Schwegmann's gas station was self-service, the duties that the invitees performed were the same as a full-service gas station, therefore invitees were agents of Schwegmann's thus making Schwegmann liable for their agents' negligent acts.
Based upon the foregoing, the question for review is whethеr the trial court erred in granting Summary Judgment in this instance.
Spurlock was a business invitee on Schwegmann's premises at the time of his injury. Although the determination of liability in negligence actions brought pursuant to Louisiana Civil Code Articles 2315 аnd 2316 is no longer defined in terms of the status of the person entering the land, we will discuss such status in an effort to define a duty. Barcia v. Estate of Keil,
"whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others...." Cates v. Beauregard,328 So.2d 367 (La.1976); Shelton v. Aetna Casualty & Surety Company,334 So.2d 406 (La.1976).413 So.2d at 243 .
Even though the law imposes a duty to take reasonable care for the safety of patrons, the storeowner or, as in this cаse, the gas station owner, is not the insurer of the patron's safety. Butler v. K-Mart Corporation,
Louisiana has for some time employed the duty-risk analysis tо determine legal responsibility in tort claims. Harris v. Pizza Hut of Louisiana, Inc.,
I. Whether the conduct of which plaintiff complains was a cause-in-fact of the harm;
II. Whether there was a duty on the part of the defendant which was imposed to protect against the risk involved;
III. Whether there was a breach of that duty; and
IV. Damages.
To determine legal cause one must ascertain whether the defendant had a duty to protect the plaintiff from the risk of the injury which he suffered and whether the defendant's breach of that duty was a cause in fact of the injury. A cause in fact exists if negligent conduct is a substantial factor in bringing about the resultant harm. Coleman v. Douglas Public Service, Inc.,
Reviewing the facts in the reсord and applying the above stated rules, we find as a matter of law that Schwegmann's was not liable for appellant's injuries. Nothing in the record raises a genuine issue of material fact on this issue.
Tested by the rules оf legal cause, we do not conceive that Schwegmann breached a duty owed to Spurlock under any of the theories put forth by the plaintiffs.
We are not aware of any ordinance, statute or rule оf law which requires a gas station owner to erect barriers between cars at the gas pumps or to establish car lanes at the pumps. There is no evidence in the record from which it could be reasonаbly inferred that the presence of a barrier or car lane would have prevented the happening of the occurrence described in the petition which resulted in the injuries sustained by Spurlock and his ultimatе death.
The existence of a car lane at the gas pumps would not have prevented the accident. Even if there was a specified car lane, Marcel Carter would have been in the car lаne as he was at the station to obtain gas and the only reason he was not pumping gas at the particular moment was that he could not reach the pumps for lack of space. This contention by plaintiffs is without merit.
The contention that there should be barriers between automobiles at gas pumps is likewise unreasonable and illogical. There is no reason to believe that gas station owners should anticipate that automobiles will be negligently propelled forward, with or without a person in the car, into someone pumping gas at the rear of another car. Schwegmann's has no control in the placement of gаs tanks in automobiles such that an occurrence like this will not happen. Additionally, Schwegmann's had no control over Marcel Carter when he chose to leave his car unattended with the engine running and the geаrs in neutral.
As stated in Schatz v. 7-11, Inc.,
We are not unmindful of the obvious fact that at times operators lose control over the forward progress and direction of their vehicles either through negligence or as a result of defective mechanisms, which sometimes results in damage or injury to others. In a sense all such occurrences are foreseeable. They are not, however, incidents to ordinary operation of vehicles, and do nоt happen in the ordinary and normal course of events. When they happen, the consequences resulting therefrom are matters of chance and speculation. If as a matter of law such ocсurrences are held to be foreseeable and therefore to be guarded against, there would be no limitation on the duty owed by the owners of establishments to *24 which people are invited to enter. Such occurrences fall within the category of unusual or extraordinary, and are therefore unforeseeable in contemplation of the law.
The fact that the car owned by Marcel Carter lunged forward after being stopped is not such an occurrence that is usual. We conceive of the incident as an unusual occurrence and as such is unforeseeable in contemplation of the law. The risk of this injury was simply too remote to come within the scope of Schwegmann's duty to its customers in this situation.
With regard to plaintiff's contention that Schwegmann's employees had the last clear chance to warn Spurlock оf the oncoming car, we find no evidence in the record to prove or disprove such fact. The deposition of Marcel Carter mentions that there were two Schwegmann employees in the areа but he did not know where they were or what they were doing at the time of the accident. Besides, there was no evidence that even a warning by these employees would have prevented the accident.
Finally, plaintiffs contend that Spurlock and Carter were agents of Schwegmann as the self-service gas station had previously been a full-service station. As such, persons using the station performed the same duties as an employee had done in the past thereby making them an agent of Schwegmann's. Plaintiffs cite no authority for this proposition and we are unaware of any such authority. We therefore find that under the rules of agеncy and mandate, no agency or mandate relationship existed in this case under these circumstances.
The evidence in the record before us affirmatively establishes no breach of a duty owed by Schwеgmann's to plaintiffs as survivors of Spurlock, and the trial judge was correct in holding that Schwegmann was entitled to judgment as a matter of law. The summary judgment appealed from is accordingly affirmed. All costs to be paid by Appellants.
AFFIRMED.