Bernard v. Ferrellgas, Inc.

689 So. 2d 554, 1997 La. App. LEXIS 116, 1997 WL 43415
CourtLouisiana Court of Appeal
DecidedFebruary 5, 1997
Docket96-621
StatusPublished
Cited by20 cases

This text of 689 So. 2d 554 (Bernard v. Ferrellgas, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bernard v. Ferrellgas, Inc., 689 So. 2d 554, 1997 La. App. LEXIS 116, 1997 WL 43415 (La. Ct. App. 1997).

Opinion

689 So.2d 554 (1997)

Jennifer BERNARD, Plaintiff-Appellant,
v.
FERRELLGAS, INC., et al., Defendants-Appellees.

No. 96-621.

Court of Appeal of Louisiana, Third Circuit.

February 5, 1997.
Rehearing Denied April 8, 1997.

*555 Kelly K.N. Sanford, Lafayette, for Jennifer Bernard.

L. Lane Roy, Thomas S. Stewart, Lafayette, Douglas R. Dalgleish, Peter F. Daniel, Kansas City, MO, for Ferrellgas, Inc., et al.

Katherine Marie Loos, Lafayette, for Employers Ins. of Wausau.

Before WOODARD, SULLIVAN and GREMILLION, JJ.

WOODARD, Judge.

Plaintiff appeals trial court's granting of a directed verdict in favor of defendant in this products liability action. We reverse.

FACTS

On October 16, 1992, Russell Bernard, husband of plaintiff Jennifer Bernard (Bernard), died at the Swifty Food Store in Carenco, Louisiana. At the time of the accident, Russell was working at Swifty as a butcher and was responsible for operating the outdoor meat smoker. Two to three times a week, Russell Bernard would load the smoker with meat and light the gas burner under the wood. The smoker was custom-made, that is, it was not mass produced. While there *556 was some discussion at trial as to whether the smoker was considered an indoor or outdoor one, the facts indicate that the smoker was located in a screened area outside the store. It was fueled by propane gas and required manual operation to start the flow of gas and light the burner. The propane delivery system for the smoker was built and installed by the defendant, Ferrellgas. The system consisted of tubing and valves running from the propane tank, through a "T" fitting, to the burner. To light the burner, Russell Bernard had to open two valves, one running from the "T" connector which started the flow of gas (the first valve), and then one closer to the burner to allow the gas into the burner (the second valve). The second valve was close to ground level. Russell Bernard was instructed to open the first valve, but not to open the second valve, until he had lit some kind of a striker to ignite the gas. If both valves were open with no flame to ignite the gas, the propane, being heavier than air, would accumulate in the bottom of the smoker, thereby causing an explosion when ignited.

Apparently, when the smoker was lit, it exploded, causing Russell Bernard to suffer massive head injuries causing instant death. Jennifer Bernard filed suit against Ferrellgas, asserting that the propane delivery system was defective because it did not have a thermocouple or other "safety shut-off" device to reduce the probability of this type of accident. In response, Ferrellgas claimed that Russell Bernard's own negligence in opening both valves was the cause of the injury. A jury trial was held January 10-16, 1996. At the close of Bernard's case, Ferrellgas moved for a directed verdict, contending that Bernard had failed to prove a prima facie case. In particular, Ferrellgas asserted that Bernard failed to show a breach of any legal duty Ferrellgas may have owed to Russell Bernard, or prove that a breach was the legal cause, or cause-in-fact of Russell Bernard's death. The trial court granted the directed verdict. Bernard now appeals this decision.

ASSIGNMENTS OF ERROR

Bernard claims the following assignments of error:

(1) The trial court was clearly wrong in granting Ferrellgas' motion for directed verdict because it was not made at the appropriate time, but rather after Ferrellgas had put on a witness out of turn during Bernard's case in chief and before Ferrellgas rested its case in chief.
(2) The trial court was clearly wrong in granting Ferrellgas' motion for directed verdict because there was substantial evidence of such quality and weight that reasonable and fair minded jurors, in the exercise of impartial judgment, might reach different conclusions.
(3) The trial judge made several erroneous evidentiary rulings which led to a clearly wrong ruling on the motion for directed verdict.
(4) The trial court erred in casting all court costs and expert witness fees against Bernard, in light of the procedural error made by Ferrellgas in moving for a directed verdict at an improper time.

LAW

TIMING OF MOTION FOR DIRECTED VERDICT

In her first assignment of error, Bernard asserts that the trial court was clearly wrong in granting Ferrellgas' motion for a directed verdict because it was not made at the appropriate time, but rather after Ferrellgas had put on a witness out of turn during Bernard's case in chief and before Ferrellgas rested its case in chief. In support of this assertion, Bernard cites Collett v. Branch, 516 So.2d 450 (La.App. 1 Cir.1987), writ denied, 520 So.2d 752 (La.1988) and Blanchard v. Our Lady of the Lake Medical Ctr., 529 So.2d 1309 (La.App. 1 Cir.), writ denied, 532 So.2d 772 (La.1988) for the proposition that:

A motion for a directed verdict may be made either at the close of the plaintiff's case or at the close of all of the evidence, but may not be made at points in between.

Collett, 516 So.2d at 452. In the present case, as in the above cited cases, Ferrellgas was allowed to call a witness, Mr. Cormier, *557 out of turn prior to resting its case-in-chief. We need not address the merits of this assertion, however, because this question is not properly before this court.

It is well-settled law that failure to make formal objections to a ruling of the trial judge results in a waiver of the plaintiff's right to urge those objections as error on appeal. Deville v. Fields, 546 So.2d 332 (La. App. 3 Cir.1989). A review of the record reveals that Bernard had two opportunities to object regarding Cormier's testifying out of turn. The first opportunity was when Ferrellgas moved to call Cormier out of turn. At that time, counsel for Bernard stated: "Yeah, that's okay with me, so we can—we don't have to bring him back." Thus, not only did Bernard fail to object, she affirmatively agreed with calling Cormier out of turn. The second opportunity came when the motion for a directed verdict was made at the close of Bernard's case. Again, Bernard made no objection to the motion on the procedural ground that the motion was untimely. "In the absence of objection, the trial court is afforded no opportunity to prevent or correct the alleged error." Id. at 334 (citing Bertoli v. Flabiano, 116 So.2d 76 (La. App. 1 Cir.1959)). Because there was no objection made at the trial level, the error was not properly reserved, and therefore, this assignment has no merit.

GRANTING OF A DIRECTED VERDICT

In her second assignment of error, Bernard asserts that the trial court was clearly wrong in granting Ferrellgas' motion for a directed verdict because there was substantial evidence of such quality and weight that reasonable and fair minded jurors, in the exercise of impartial judgment, might reach different conclusions. While we find that Bernard's first assignment of error, the procedural argument of improper timing, is not properly before this court, we must nonetheless determine whether the trial court erred substantively in granting the directed verdict. In Cobb v. Kleinpeter, 95-271, p. 5 (La.App. 3 Cir. 10/04/95); 663 So.2d 236, 239, writ denied, 95-2683 (La.1/12/96); 666 So.2d 323, this court held that:

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689 So. 2d 554, 1997 La. App. LEXIS 116, 1997 WL 43415, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bernard-v-ferrellgas-inc-lactapp-1997.