Cash v. KCI Const., Inc.

675 So. 2d 297, 1996 WL 252704
CourtLouisiana Court of Appeal
DecidedMay 15, 1996
Docket95-CA-1083
StatusPublished
Cited by8 cases

This text of 675 So. 2d 297 (Cash v. KCI Const., 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
Cash v. KCI Const., Inc., 675 So. 2d 297, 1996 WL 252704 (La. Ct. App. 1996).

Opinion

675 So.2d 297 (1996)

John CASH
v.
K.C.I. CONSTRUCTION, INC. and Danny Stevens.

No. 95-CA-1083.

Court of Appeal of Louisiana, Fifth Circuit.

May 15, 1996.
Rehearing Denied June 12, 1996.

*298 Jerald N. Andry, Gilbert V. Andry, III, New Orleans, for Plaintiff/Appellant, John Cash.

W. Patrick Klotz, New Orleans, for Defendants/Appellees, K.C.I. Constructors, Inc. and Danny Stevens.

T. Justin Simpson, Larzelere & Picou, Metairie, for Intervenor/Appellant, Ebasco Constructors, Inc.

Before BOWES and DALEY, JJ., and CHARLES V. CUSIMANO, II, J. Pro Tem.

BOWES, Judge.

Plaintiff, John Cash, appeals from a judgment of the district court which dismissed his petition for damages. We affirm.

FACTS

In August of 1991, Mr. Cash was a 56 year old millwright foreman employed by Ebasco at the Shell Oil refinery in Norco. On August 12, 1991, Mr. Cash and his crew were engaged in the job of installing a boiler pump. The crew consisted of Cash's son, Barry Cash, a journeyman millwright and Karl Brindell, a pipefitter helper. The crew was engaged in the job of moving the base of the boiler pump, referred to as the "skid," into the utility unit of the refinery ("unit"). The "skid" was eighteen to twenty feet by six and one-half to eight feet, and it weighed 2,280 pounds. The "skid" was to be placed on a concrete platform embedded with bolts and bolted into place. As foreman, Mr. Cash was responsible for the job of moving and setting the "skid."

A crane owned by defendant K.C.I. Constructors, Inc. (hereinafter "KCI"), and operated by defendant, Danny Stevens, a KCI employee, was brought in to set the skid.

The skid was leveled on the crane rig by Cash and his crew, and was brought into place above the concrete base by Stevens, the crane operator. There were several other personnel present at the job site, including Richard Marcombe, a pipefitter superintendent for Ebasco, Paul Landry, a process operator for Shell Oil Company, and J.D. Dedebant, a Shell employee.

After the crane was in place, Cash signaled to Stevens to lower the "skid" over the bolts. The "skid" came down in a level position, however, the bolts in the concrete did not line up perfectly with the bolt holes in the "skid". At this time, Stevens felt the load "hang up" on something and he signaled to Cash that he did not "have the load." Cash then gave Stevens the signal to "dog off"— which means to put all controls in a locked off position. The only way to lock the controls on the crane being used was to turn off the engine, which Stevens did.

Cash and his crew then began to maneuver the bolts into position to line then up with the bolt holes. They were able to maneuver all the bolts, except one. Cash began tapping the bolt with the valve wrench. On the third strike, the bolt went into the hole, causing the skid to fall onto the top of the concrete base and Cash's hands to become trapped between the concrete base and the skid.

As a result of the accident, Cash sustained severe injury to both hands, including a disabling injury to his left hand.

Cash filed this suit for damages against KCI and Stevens. Cash's employer, Ebasco, intervened for worker's compensation benefits paid to Cash. KCI answered the petition and raised the affirmative defenses of contributory and comparative negligence, third party negligence, last clear chance and borrowed servant immunity. After a trial on the merits, the court found that Stevens and KCI were not afforded immunity under the doctrine of "borrowed servant." However, the court then found that plaintiff had failed to prove, by a preponderance of the evidence, that his injuries resulted from negligence on *299 the part of defendants, KCI and Stevens, and rendered judgment dismissing plaintiff's petition.

FINDINGS OF FACT AND RULINGS OF THE TRIAL COURT

The trial judge, in her excellent written reasons for judgment, made the following findings of fact as to the cause of the accident and appellant's resultant injuries:

The project in question consisted of moving the skid from a position about 200 feet from the foundation, and setting the skid onto the bolts cemented into the platform in holes in the skid, and grouting the skid to the platform, using a 2 × 4 on the 1½ inch side to form the grout line. In an attempt to `soften' the load, the two-by-fours were standing on the narrow side to give a buffer between the skid and the platform. As the skid was moved into place, crew members noticed the two-by-four had been knocked over. Before the two-by-four could be adjusted, the skid dropped in place, pinning both of Cash's hands between the skid and the valve wrench Cash was using to attempt to align the bolts. Stevens lifted the load by using the outrigger to raise the boom.
John Cash testified that when some bolts lined up he had Stevens bring down the load to barely touch the bolts. According to Cash, the load was basically level and he had Stevens dog-off. [To "dog off" means to put all controls in a locked position.] He denies observing slack on the chokers and thought there was tension on the load, and that Stevens had control of the load. In order to align the bolts, Cash used a valve wrench to pull the bolts in place. When the last bolt was in place, the skid dropped in place, trapping Cash's hands and the valve wrench between the skid and the platform.
Danny Mark Stevens, [the crane operator], testified that once the skid hung up on the bolts on the platform, he knew he did not have the load, and that he had communicated this to the Ebasco crew. In fact, although Cash continued to signal Stevens to come down, Stevens quit releasing the load because he knew the load was not level and that he did not have it under control and that he immediately signaled to alert the crew to the situation.
Karl Brindell, who worked as a pipefitter's helper for Ebasco, verified that when Cash successfully pried the last misaligned bolt into place the skid slid down. Brindell, as well as Paul Landry, a Shell employee who assisted in walking the pump skid into the utility area, confirm (sic) Stevens's allegation that he notified the crew that he did not have the load under control. Another Shell employee, J.D. Dedebant, believes that Cash acknowledged Stevens's signal that he did not have the load.
Bruce Raymond, an Ebasco employee, testified as an expert in industrial safety. It was Raymond's opinion that boards of a minimum of four-by-four should have been used as softeners, since they would not have had the inclination to turn over as easily as a two-by-four placed on the narrow edge. He faults the Ebasco employees with failure to use the correct blocking procedure.
Raymond connects the problem of the anchor bolts' failure to line up with the holes in the skid with the skid being off level. The leveling of the load was undertaken by Ebasco employees.
Raymond suggests that Cash's use of the valve wrench to attempt to pry the bolt into alignment was unsafe, and that the correct procedure would have been to re-level and re-align the load so that it did line up. The implementation of this procedure would have been Cash's responsibility. Additionally, he states that it is Ebasco's policy that one not put any part of one's body below suspended loads.
Raymond's assessment of the accident contained in the report prepared by him on the date of the accident, and offered into evidence as Defendant-1-E:

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Cite This Page — Counsel Stack

Bluebook (online)
675 So. 2d 297, 1996 WL 252704, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cash-v-kci-const-inc-lactapp-1996.