Carollo v. Newton

492 So. 2d 205, 1986 La. App. LEXIS 7415
CourtLouisiana Court of Appeal
DecidedJuly 11, 1986
DocketNo. CA-4945
StatusPublished
Cited by1 cases

This text of 492 So. 2d 205 (Carollo v. Newton) 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
Carollo v. Newton, 492 So. 2d 205, 1986 La. App. LEXIS 7415 (La. Ct. App. 1986).

Opinion

BARRY, Judge.

This tort action arises out of plaintiff’s death from electrocution which occurred while installing an air-conditioning motor.

Michael Carollo agreed to repair Edward Newton’s home central air-conditioning system. Carollo arrived around 10 a.m. and was met by Bernie Smithe, Newton’s room[207]*207mate. After removing fuses to the outside condenser, but not those controlling electrical power to the attic, Carollo determined that the air-handling unit in the attic had a defective motor. Smithe helped him unscrew three mounting arms and remove the Emerson three speed single rotation, 240 volt motor and bracket. Carollo brought the motor and bracket to G & M Sales, Inc. where Thomas Baudoin, a clerk, agreed to adapt a new A.O. Smith 240 volt three speed reverse rotation motor to replace the Emerson. Several hours later Carollo returned and Baudoin ran the Smith motor in Carollo’s presence, explained the interchangeability of the rotation and speed leads, and wrote installation instructions on the sales receipt.

Carollo went back to the home around 3:00 p.m. and had difficulty mounting the motor. Smithe suggested on three occasions that electricity to the attic be disconnected, but Carollo said, “It isn’t necessary.” A fuse box in the garage and a toggle switch near the motor controlled power to the motor.

Newton arrived home around 5:45 p.m. and Carollo asked him to plug in the fuses to the condensing unit. About that time Newton heard a scream, immediately removed the fuses, ran upstairs and found Carollo, soaked with perspiration, lying on his left side facing the air-handling unit with his back against the metal duct work. He was grasping the ends of two wires between his left thumb and forefinger and his right arm was up in the air. An autopsy concluded the cause of death was electrocution.

Carollo was 61 years old and had retired seven years earlier from U.S. Gypsum. He attended air-conditioning courses for two years at Delgado College and did repair work as a paying hobby. He was not a certified electrician or experienced in central air systems.

Carollo’s widow and three adult children filed suit against Newton, his homeowner’s insurer, G & M Sales, Inc., and the A.O. Smith Corp. The jury returned a unanimous verdict in favor of all defendants.

STRICT LIABILITY

The Carollos contend the trial court erred by failing to charge the jury or submit an interrogatory on the homeowner’s strict liability, hence, the jury did not consider Newton’s liability based on the alleged defective condition of his house. La. C.C. Arts. 2317 and 2322.1 The Carollos claim the 18 inch space between the duct and the blower’s access panel created a “trap” and was a violation of the 30 inch requirement of the National Electric Code which is part of the New Orleans Building Code. Their expert electrical engineer, Bruce Barton, testified that the space was not in compliance with the Code.

Newton responds that strict liability is inapplicable since no vice or defect caused the accident.

Three days after the accident George Hero, an expert electrical engineer, checked the junction box, capacitor, motor, and all groundings and found no defect. He said the location of the duct did not violate the electrical code. He testified that power to the outside condenser unit (which Carollo had disconnected) was not connected to the motor; therefore, when Newton replaced the fuses, it did not energize the wires in Carollo’s hand. Dr. Eugene F. Tims, another expert electrical engineer, agreed the space between the duct work and motor did not violate the electrical code.

Loescher v. Parr, 324 So.2d 441 (La.1975) sets forth the following conditions for C.C. Art. 2317 to apply: 1) the thing which caused the damage was in the care and [208]*208custody of the defendant owner; 2) a defect or vice of the thing; and 3) the damage that occurred was a result of the defect or vice. The “vice” is that which poses “an unreasonable risk of injury to another.”

To recover under C.C. Art. 2317 or Art. 2322, there must be a defect. O’Neal v. International Paper Co., 715 F.2d 199 (5th Cir.La.1983).

The Carollos simply could not prove that the air duct’s proximity to the motor’s panel was a vice which posed an unreasonable risk of injury that caused Carollo’s death.

Plaintiffs argue that victim fault doesn’t apply when a person is killed in an accident and unable to testify. They claim a presumption because of the “instinct of self-preservation and love of life that the decedent was not negligent and acted with ordinary care for his own safety.” Unfortunately, Carollo failed to disconnect the electricity from the main box or toggle switch, a basic act which would have avoided the accident. Carollo’s negligence caused his death.

After hearing the facts the trial judge correctly refused to instruct the jury on C.C. Arts. 2317 and 2322 and the jury properly exonerated Newton.

RES IPSA LOQUITUR

The Carollos contend the cause of the fatality was a defective electrical circuit, negligent modification of the motor, and/or a defective motor, and it was error not to instruct the jury on res ipsa loqui-tur.

All defendants argue res ipsa loquitur is inapplicable because the doctrine requires “exclusive control” and the motor was not in their control at the time of the accident,

Carollo was alone in the attic working on the motor when the accident happened. The equipment and repairs were in his exclusive control. Smithe testified that he asked Carollo three times if he should disconnect the electricity and Carollo said it was not necessary because he could work around it.

Carollo was not a certified electrician and the record shows that most of his experience was repairing window units. The motor manufacturer’s instructions were printed on the name plate and installation was explained by Baudoin orally and in writing.

Res ipsa loquitur applies when: 1) the defendant had exclusive control over the area; 2) the cause of the accident is more properly within the knowledge of the defendant; and 3) all the facts and circumstances indicate that the negligence of the defendant, rather than the negligence of others, is the most likely cause of the accident. U.S. v. Nassau Marine Corp., 577 F.Supp. 1475 (E.D.La.1984), affirmed 778 F.2d 1111 (5th Cir.La.1985); Greenup v. Maginnis, 446 So.2d 485 (La.App. 4th Cir.1984).

It is uncontroverted that Carollo did not take the basic precaution of turning off the electricity and that negligence was the most likely cause of the accident. He worked alone and maintained “exclusive control”, thus it was proper to refuse the jury charge on res ipsa loquitur.

MODIFICATION OF MOTOR

The Carollos contend Baudoin, the G & M clerk, failed to “bring out” the high speed lead to conform with the Emerson motor rotation and to electrically insulate and tie off the medium and low speed leads.

G & M argues Carollo was at fault for failing to disconnect the power source.

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Bluebook (online)
492 So. 2d 205, 1986 La. App. LEXIS 7415, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carollo-v-newton-lactapp-1986.