Broussard v. Continental Oil Co.

433 So. 2d 354, 1983 La. App. LEXIS 8659
CourtLouisiana Court of Appeal
DecidedMay 25, 1983
Docket83-25
StatusPublished
Cited by11 cases

This text of 433 So. 2d 354 (Broussard v. Continental Oil Co.) 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
Broussard v. Continental Oil Co., 433 So. 2d 354, 1983 La. App. LEXIS 8659 (La. Ct. App. 1983).

Opinion

433 So.2d 354 (1983)

Mildredge BROUSSARD, Plaintiff-Appellant,
v.
CONTINENTAL OIL COMPANY, et al., Defendants-Appellees.

No. 83-25.

Court of Appeal of Louisiana, Third Circuit.

May 25, 1983.
Rehearing Denied July 14, 1983.

Jones, Jones & Alexander, J.B. Jones, Jr., Cameron, for plaintiff-appellant.

Raggio, Cappel, Chozen & Berniard, Richard B. Cappel, Lake Charles, for defendants-appellees.

Before GUIDRY, STOKER and LABORDE, JJ.

STOKER, Judge.

This is a personal injury suit by Mildredge T. Broussard against Black & Decker (U.S.), Inc. and The Home Insurance Company. Plaintiff-appellant (Broussard) was badly burned in an explosion of natural gas sparked by a Black & Decker hand drill. Broussard was using the drill while working at a Continental Oil Company (Conoco) plant at Grand Chenier, Louisiana. Plaintiff also sued Conoco and its plant supervisor but reached a settlement agreement with those defendants before trial. Other parties to the suit settled with the plaintiff before trial. American Mutual Insurance Company, an intervening party represented at trial, does not appeal that portion of the judgment adverse to it, and the judgment as to it is now final.

The verdict of the jury at trial was that Black & Decker was not at fault for failure to adequately warn in connection with the accident. Judgment was for the defendants and against plaintiff and the non-appealing *355 intervenor. The issues on appeal are:

I. Did the jury commit manifest error in not finding Black & Decker at fault for failure to adequately warn plaintiff of the hazard to which he was exposed in using the drill near vaporous gas?
II. Did the trial court err in (1) submitting to the jury a negligence charge in a products liability case, (2) in submitting to the jury the question of whether or not Conoco was negligent, and (3) in submitting the question of whether plaintiff was negligent to the jury?

We find no error in the jury's verdict and find no error relative to the jury submission questions. We affirm.

BACKGROUND FACTS

Plaintiff was directly employed by Crain Brothers Construction Company, and the trial court found he was the statutory employee of Conoco. On the day of the accident, plaintiff and four other men, including Sanders Miller, were in the process of building a sump box enclosure at the end of a natural gas vent line (pipe) at the Grand Chenier plant. Plaintiff was a carpenter's helper and Miller was a carpenter. Upon arriving at the site, both men noticed that natural gas could be heard and smelled coming from the vent line. Miller immediately notified Conoco's relief plant foreman about the escaping gas and asked if it could be shut off. The foreman refused to do so because the whole plant would have had to be shut down to prevent the gas from being vented at the location of the sump box. After Miller requested a shut down a second time, the foreman talked to Mr. Leeman, another Conoco employee and the plant supervisor. Miller was again told nothing could be done.

Miller testified that he recognized the danger of working around the flammable natural gas. The workers took what precautions they could to minimize the risk of igniting the natural gas fumes. Cigarettes, cigarette lighters and matches were left in the work vehicles. The vehicles were parked some distance away from the site. A gasoline powered electricity generator was placed at the end of two 50-foot extension cords. Miller warned the plaintiff to be careful not to cause a spark while hammering, especially when the fumes were heavy.

The explosion occurred as plaintiff was standing inside a plywood box loosely held together and being constructed as a concrete form. He was positioned inside the form to drill holes in its sides through which rods were to be inserted. It is not seriously contested that sparks from the drill plaintiff was using ignited the natural gas fumes coming from the vent line. Such sparks are normally emitted from this and similar type drills when the "brushes" inside the armature of the drill contact and slide along the inside surface of the rapidly spinning cylinder in which the brushes sit. There is no evidence, nor is the issue before this Court, that the design which allows the creation and emission of these sparks constitutes a design defect. Rather, the issues relate to the failure to warn on the part of the defendant manufacturer of the hazard of explosion.

Both the plaintiff Broussard and Sanders Miller testified that they were unaware at the time of the accident that sparks from electrical power drills could ignite gaseous atmospheres. Allen Nunez, the relief foreman, likewise testified that neither he nor anyone at the Conoco plant knew of the potential of explosion in a like situation before the accident occurred. However, a warning that would have informed the users of the drill of the precise cause and effect encountered appears in the owner's manual. Black & Decker claim that a copy of this manual is placed in every box containing one of their drills as it leaves the manufacturer's control. See Appendix, Item No. 18.

The owner's manual is not attached to the drill but is loosely placed in the box. Thus, unless the box with the owner's manual inside (or the owner's manual itself, with the safety warnings inside its folded *356 pamphlet form) is kept with the drill, the warning is not available to users other than the buyer. In addition to the owner's manual warning, there is a small notice on the side of the drill which simply reads, "CAUTION: For Safe Operation See Owner's Manual." This notice is approximately one-eighth inch high and one inch long.

Sanders Miller received the drill at the office of the Crain Brothers Construction Company from the secretary who worked in the office. The secretary asked Miller if he wanted the box the drill came in. Miller replied he had no use for it, and the box was thrown away. Neither Miller nor the plaintiff saw the owner's manual.

DID BLACK & DECKER FAIL TO PROVIDE ADEQUATE WARNING?

With reference to adequacy of warning of the danger from the emission of sparks, Black & Decker contends item eighteen in the owner's manual was sufficient. Plaintiff Broussard contends that it was not. Broussard contends that Black & Decker was guilty of fault in not putting the warning on the drill itself. Item eighteen reads as follows:

"18. DO NOT OPERATE portable electric tools in gaseous or explosive atmospheres. Motors in these tools normally spark, and the sparks might ignite fumes."

The warning set forth in these words is adequate; the question is whether it was sufficient to put it in the owner's manual or whether it was unreasonable under the circumstances not to put this warning on the drill itself. As noted above there was a warning on the drill which read, "CAUTION: For Safe Operation See Owner's Manual."

We are confronted here with the application of absolute liability of a manufacturer. The product, the drill, does not contain a defect in the ordinary sense of design or manufacturing defect, but ordinary use of the drill is dangerous under the factual circumstances which were present in this case, i.e., use in the presence of natural gas fumes. Unreasonable risk is a requirement of strict liability just as it is in negligence. Entrevia v. Hood, 427 So.2d 1146 (La.1983); DeBattista v. Argonaut-Southwest Ins. Co., 403 So.2d 26 (La.1981); Cobb v. Insured Lloyds, 387 So.2d 13 (La. 1980); Hunt v. City Stores, Inc., 387 So.2d 585 (La.1980); Chappuis v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Black v. Gorman-Rupp
655 So. 2d 717 (Louisiana Court of Appeal, 1995)
Lockart v. Kobe Steel Ltd. Const. Machinery Div.
989 F.2d 864 (Fifth Circuit, 1993)
Easton v. Chevron Industries, Inc.
602 So. 2d 1032 (Louisiana Court of Appeal, 1992)
Liesener v. Weslo, Inc.
775 F. Supp. 857 (D. Maryland, 1991)
Duncan v. Louisiana Power & Light Co.
532 So. 2d 968 (Louisiana Court of Appeal, 1988)
Bloxom v. Bloxom
512 So. 2d 839 (Supreme Court of Louisiana, 1987)
Marshall v. Beno Truck Equipment, Inc.
481 So. 2d 1022 (Louisiana Court of Appeal, 1986)
Quattlebaum v. Hy-Reach Equipment Inc.
453 So. 2d 578 (Louisiana Court of Appeal, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
433 So. 2d 354, 1983 La. App. LEXIS 8659, Counsel Stack Legal Research, https://law.counselstack.com/opinion/broussard-v-continental-oil-co-lactapp-1983.