Dailey v. LebBlanc

497 So. 2d 1044, 1986 La. App. LEXIS 8077
CourtLouisiana Court of Appeal
DecidedNovember 5, 1986
DocketNo. 85-1171
StatusPublished

This text of 497 So. 2d 1044 (Dailey v. LebBlanc) 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
Dailey v. LebBlanc, 497 So. 2d 1044, 1986 La. App. LEXIS 8077 (La. Ct. App. 1986).

Opinions

KING, Judge.

This appeal presents the issue of whether or not the trial court correctly applied the defense of assumption of the risk to deny plaintiff recovery on his claim.1

Donald Dailey (hereinafter referred to as plaintiff) seeks damages for injuries suffered when he was struck in the leg by a fence wire cut by a bushhog being operated by Kearney LeBlanc on John Douget’s property. Plaintiff sues Kearney LeBlanc, the operator of the bushhog, John Douget, the property owner and LeBlanc’s employer, and A1 Lavergne and Carol Roch, the adjacent property owners (hereinafter referred to as defendants). From a trial court judgment dismissing his claim against defendants the plaintiff appeals. Finding that the trial court was not manifestly in error in applying the defense of assumption of the risk to the facts of this case, we affirm.

FACTS

Donald Dailey, an employee of Dailey Fence Company, was hired by John Douget (hereinafter referred to Douget) to construct a fence on Douget’s property. One week prior to installing the fence, plaintiff went onto Douget’s property and asked Douget to have the grass cut to enable him to install the fence. While plaintiff was walking the old fence line on Douget’s property, near where the new fence was to be erected, he noticed some coiled wire lying on the ground and coming from a fence post on the adjacent property. A1 Lavergne and Carol Roch, who owned the property next to Douget’s, had been in the process of installing their own fence near Douget’s proposed new fence. Lavergne had taken some excess wire from his fence and stapled it to a corner post of his fence and coiled and left the remainder of the wire lying on the ground in the high grass on Douget’s property. „

On June 28, 1979, plaintiff began constructing the fence on Douget’s property. At the same time, Kearney LeBlanc, at Douget’s request, was cutting the grass on Douget’s property with a bushhog. Since Douget was blind and unable to see, he asked plaintiff to show LeBlanc where to cut the grass. The grass was about three feet tall at that time. Plaintiff showed LeBlanc where to cut the grass but did not tell LeBlanc about the fence wire plaintiff knew was lying hidden in the high grass.

As LeBlanc was cutting the grass near the posts of the fence, the bushhog caught the coiled wire, which was lying on the ground, and broke it, causing the wire to strike plaintiff in the leg. The plaintiff was standing approximately 15 feet behind the bushhog when he was hit by the wire. LeBlanc had actually twice driven across the wire with the bushhog while cutting the grass, before the accident occurred.

As a result of the accident plaintiff sustained injuries to his leg for which he claims defendants are liable to him in solido for damages. Plaintiff filed suit against defendants, seeking recovery for medical expenses, physical and mental injuries, and loss of earning capacity.

Trial on the merits was held before the trial court, which granted a directed verdict in favor of defendants and dismissed plaintiff’s suit. The trial court found that plaintiff assumed the risk by knowingly exposing himself to danger where he knew the risks involved.

Plaintiff timely appeals, alleging that the trial court erred in applying the defense of assumption of the risk to the facts of the case and granting a directed verdict dismissing his suit.

[1046]*1046LAW

Louisiana recognizes assumption of risk as an affirmative defense to tort liability. Arnold, v. Union Oil of California, 608 F.2d 575 (5⅛ Cir.1979). In order to assume a risk, one must knowingly and voluntarily encounter a risk which caused him harm and must understand and appreciate the risk involved and accept it as well as the inherent possibility of danger because of the risk. Rozell v. Louisiana Animal Breeders Cooperative, Inc., et al, 496 So.2d 275 (La.1986); Lytell v. Hush-field, 408 So.2d 1344 (La.1982); Dorry v. Lafleur, 399 So.2d 559 (La.1981); Varnado v. Sanders, 477 So.2d 1205 (La.App. 1 Cir. 1985), writ den., 481 So.2d 630 (La.1986). Under the theory of assumption of risk, before the adoption of comparative negligence in Louisiana, recovery was denied if the plaintiff knew or should have known of the risk involved, appreciated the risk, and voluntarily exposed himself to the risk. Prestenbach v. Sentry Ins. Co., 340 So.2d 1331 (La.1976). The determination of whether a plaintiff assumed a risk is made by subjective inquiry. Rozell v. Louisiana Animal Breeders Cooperative, Inc., et al, supra; Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133 (1971). Thus, it is appropriate to examine the record to determine if the plaintiff appreciated the unreasonable character of the risk of which he was aware. The critical inquiry is whether or not the plaintiff was exercising ordinary care for his own safety at the time of the accident and whether or not he was aware of the presence of the wire and the danger posed by operation of a bushhog near the wire.

In this case, the plaintiff admitted he knew that the wire was present and hidden in the high grass in the vicinity of where LeBlanc was cutting the grass with a bush-hog. Plaintiff admitted he had noticed the wire as he walked the property the week before the accident. Plaintiff testified as to his knowledge of the wire and what he told LeBlanc about the wire as follows:

“Q. When you walked that fence line, that you say you don’t remember now, do you recall seeing cable coming from that corner post, and the corner post I’m talking about is the corner post on the Lavergne property, a cable coming down and seeing some cable on the ground?
A. I saw some cable on the comer post, on the corner post right there.
Q. So when you dug the corner post, that was before Mr. Leblanc ever started cutting, you knew that there was cable coming from the Lavergne property coming down the corner post, and you saw that cable on the ground; isn’t that a fact?
A. At the base of the corner post.
Q. Did you check to see how far that cable went?
A. It was coiled up right there.
Q. Did you check to see if it went onto Mr. Dougat’s [sic] property?
A. I did not.
******
Q. Did you tell Mr. Leblanc, did you warn Mr. Leblanc that there was a piece of cable that you had seen coming down from that corner post and coiled on the ground?
A. No.
Q. But you knew it was there?
A. I knew it was by the comer post.
Q. And you never checked to see how far it went?
A. I have no idea.
Q. And you didn’t check to see if he was going to be mowing over that cable?
A. No.
Q. You didn’t tell anybody that you had seen that cable coming off of that corner post down to the ground, coiled up, and you don’t know how far it went because the grass was high, wasn’t it?
A. Correct.

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Related

Larry D. Arnold v. Union Oil Company of California
608 F.2d 575 (Fifth Circuit, 1979)
Soileau v. South Cent. Bell Tel. Co.
406 So. 2d 182 (Supreme Court of Louisiana, 1981)
Rozell v. Louisiana Animal Breeders Co-Op., Inc.
496 So. 2d 275 (Supreme Court of Louisiana, 1986)
Dorry v. LaFleur
399 So. 2d 559 (Supreme Court of Louisiana, 1981)
Aguillard v. Langlois
476 So. 2d 356 (Supreme Court of Louisiana, 1985)
Arceneaux v. Domingue
365 So. 2d 1330 (Supreme Court of Louisiana, 1978)
Varnado v. Sanders
477 So. 2d 1205 (Louisiana Court of Appeal, 1985)
Prestenbach v. Sentry Ins. Co.
340 So. 2d 1331 (Supreme Court of Louisiana, 1976)
Aguillard v. Langlois
471 So. 2d 1011 (Louisiana Court of Appeal, 1985)
Langlois v. Allied Chemical Corporation
249 So. 2d 133 (Supreme Court of Louisiana, 1971)
Lytell v. Hushfield
408 So. 2d 1344 (Supreme Court of Louisiana, 1982)
Mott v. Babin Motors, Inc.
451 So. 2d 632 (Louisiana Court of Appeal, 1984)
Stillwell v. Vamdigriff Construction Co.
18 So. 2d 113 (Supreme Court of Alabama, 1944)

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Bluebook (online)
497 So. 2d 1044, 1986 La. App. LEXIS 8077, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dailey-v-lebblanc-lactapp-1986.