514 F2d 1243 Comer v. Texaco Inc

514 F.2d 1243

Melvin R. COMER, Plaintiff-Appellant,
TEXACO, INC., and the Travelers Insurance Company, et al.,

No. 74-4199
Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

June 20, 1975.

Gothard J. Reck, Darryl J. Tschirn, Metairie, La., for plaintiff-appellant.

John C. Combe, Jr., New Orleans, La., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before BROWN, Chief Judge, and GODBOLD and GEE, Circuit Judges.


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Comer was injured during the course of a robbery of the gas station where he was employed. The station is located, as Comer admittedly knew before the robbery, in a high-crime area. He argues his employer failed to exercise reasonable care in protecting employees' safety despite Comer's express request therefor. Employer responds that Comer knew the risks and assumed them. The District Court granted summary judgment for Employer, and we affirm, on the basis of Pfister v. Phoenix of Hartford Insurance Co., La.App., 4 Cir., 1974, 290 So.2d 362 and Erie Railroad Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188.


First, Comer asserts we are not bound by Pfister, because an earlier Louisiana Supreme Court case, Langlois v. Allied Chemical Corp., 1971, 258 La. 1067, 249 So.2d 133, is fatally inconsistent. The short answer, in our Erie -bound Court, is that the same Louisiana Supreme Court refused to review Pfister, 1974, La., 293 So.2d 187,1 and we must conclude that that the controlling Court did not see any fatal inconsistency. See, Ford Motor Co. v. Mathis, 5 Cir., 1963, 322 F.2d 267, 269.


Second, Comer would distinguish Pfister on the ground Comer, because of his physical condition, had a great deal of difficulty finding work. Thus, unlike Pfister, he cannot be held to the same free acceptance of risk that Pfister, an apparently healthy man, was. We do not read Pfister so narrowly. We think the Court's concern was not availability of other employment, but the basic freedom-to-quit. Comer knew he was working in a high-crime area, was free to quit (whether or not he could have found other work), yet he elected to stay. That, says Pfister, is an assumption of the risk and that is the end of this case.




Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I


So did the United States Supreme Court, 1974, 419 U.S. 966, 95 S.Ct. 229, 42 L.Ed.2d 181