recovery if invitees “could not appreciate or could not avoid” danger
How later courts described this case
- recovery if invitees “could not appreciate or could not avoid” danger
- grease on an area within the control of the independent contractor
Written by the judges who cited it.
The opinion
REAVLEY, Circuit Judge,
dissenting:
I respectfully dissent, because I understand the evidence and legal question differently.
There is evidence that Stockstill fell because the ladder rung was greasy which caused his left hand to slip. Further, there is evidence that the greasy substance on the ladder was the accumulation of substance from the shoes of those who had walked through oil on the deck of the passageway above the ladder.
Thirty seven members of the crew lived aboard ship. They may not have been working in the vicinity of the ladder when Stockstill fell, but they did have a tool box in the vicinity and Stockstill thought he saw some of the crew near the area prior to his fall. I find no basis for concluding that the shipowner had divested itself of responsibility for any part of the ship or, particularly, for this ladder and passageway. This is not a case where the stevedore contracts to rid the ship of the very danger which causes injury to the stevedore’s employee.
To my view it is a case of the owner/occupier of premises and his invitee. The shipowner does not escape liability because it is not shown to have placed the grease on the ladder, nor because it is not shown to have known of the danger. The question here is whether the shipowner should have known of the danger. I would conclude that the evidence tends to prove the presence of the oil and grease for a sufficient period of time that by the exercise of reasonable prudence the shipowner would have discovered that danger. The directed verdict was therefore improper.
As for the obviousness of the danger to Stockstill, there is no evidence that he knew of the grease on the ladder or the oil on the deck. I could not say that either were open and obvious to all who walked there the first time. But that is no matter for present purposes, because grease on a ladder or oil on a deck fit the rule which requires the shipowner to anticipate the harm despite obviousness of the danger. Restatement (Second) of Torts (1965) Section 343A(1). This is precisely the subject of this court’s comment in Gay v. Ocean Transport & Trading, Ltd. (1977), 546 F.2d 1233 at 1240-1242 .