Davis v. Material Delivery Service, Inc.

506 So. 2d 1243, 1987 La. App. LEXIS 9359
CourtLouisiana Court of Appeal
DecidedApril 14, 1987
Docket86 CA 0231, 86 CA 0561
StatusPublished
Cited by11 cases

This text of 506 So. 2d 1243 (Davis v. Material Delivery Service, 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
Davis v. Material Delivery Service, Inc., 506 So. 2d 1243, 1987 La. App. LEXIS 9359 (La. Ct. App. 1987).

Opinion

506 So.2d 1243 (1987)

Carl X. DAVIS
v.
MATERIAL DELIVERY SERVICE, INC., et al. (Two Cases)

Nos. 86 CA 0231, 86 CA 0561.

Court of Appeal of Louisiana, First Circuit.

April 14, 1987.
Rehearing Denied May 29, 1987.

*1244 James C. Klick, Carimi Law Firm, Gretna, for plaintiff/appellant.

William O. Bonin, Landry, Watkins & Bonin, New Iberia, for Dravo Corp., Pelican Div., defendants/appellants.

Katherine M. Loos, Jeansonne, Briney & Goudelocke, Lafayette, for Hartford Acc. & Indem. Co., intervenor.

Andrew Reed, Aycock, Horne & Coleman, Morgan City, for Material Delivery Service, Inc.

Before LOTTINGER, SHORTESS and CARTER, JJ.

CARTER, Judge.

Carl X. Davis (plaintiff), an over-the-road truck driver employed by Sunbelt Transportation Service, Inc. (Sunbelt), sustained third-degree chemical burns after exposure to lime hydrate. Plaintiff filed suit against Material Delivery Service, Inc. (MDS), the owner of the lime tank truck he was driving when injured; George White, MDS's terminal manager; Daniel A. Slay, plaintiff's supervisor at Sunbelt; and Dravo Corporation, Pelican Division (Dravo), manufacturer of the lime which burned him.[1]

After trial on the merits, the jury returned a verdict in favor of plaintiff in the sum of $25,000.00. The jury found that White, MDS, and Dravo were 20%, 40%, *1245 and 30% negligent, respectively, and that plaintiff's contributing negligence was 10%.[2] The jury also found that MDS was not plaintiff's statutory employer and thus MDS and White were not immune from tort liability. Dravo appealed from this judgment. While the first appeal was pending, the trial judge granted a motion by MDS and White for judgment notwithstanding the verdict (JNOV) on the statutory employer issue and dismissed MDS and White from the suit. Plaintiff and Dravo then appealed the judgment which granted the JNOV.

Dravo has appealed, assigning four errors: (1) the jury's finding that Dravo was negligent; (2) the jury's failure to find that plaintiff's negligence was the sole cause of the accident; (3) the granting of the JNOV by the trial judge; and (4) the damage award of $25,000.00, which Dravo contends is excessive. Plaintiff also appealed, joining in Dravo's objection to the JNOV.

FACTS

Dravo, a manufacturer of lime hydrate, operates a bulk lime facility in Amelia, Louisiana. MDS, a common carrier, owns lime tank trucks and maintains a subterminal on property leased from Dravo. MDS employs no truck drivers but contracts with Sunbelt to provide "competent, experienced and duly licensed drivers" as needed.

In July of 1983, plaintiff was hired by Sunbelt. Plaintiff had thirty years' experience as an over-the-road driver but had never hauled lime. Plaintiff testified that he was told he would be trained by being sent on four student or training runs. On July 8, 1983, plaintiff was sent on his first training run with Wayne "Jake" Frehage, Sunbelt's lead driver-trainer. On that run, a "silo job," Frehage taught plaintiff how to load the lime and then unload it into a silo.

Plaintiff's second training run on July 9 was a "spread job" during which the lime was to be blown from the truck. Because the truck would not unload properly, plaintiff testified that he was directed by Frehage to open the valve manually and then to close it manually whenever Frehage stopped the truck. Plaintiff was required to wade through the lime which had been spread to accomplish these maneuvers. Frehage testified that they were both covered with lime, but there was no place for them to wash. Plaintiff testified that the lime irritated him, but the irritation ceased when he went home and bathed.

Plaintiff's next assignment was to take a load of lime to New Iberia on July 13 to spread on a parking lot. He was assigned trailer # 7601, the same one he had used on July 8, but he was given a different tractor because of the broken blower on the tractor he had used previously. When plaintiff started to unload, he could hear noise coming from the blower. Frehage told him to call White because the blower was out. White instructed him to bring the truck to the MDS terminal in Burnside, where he was assigned a new tractor. He then returned to Amelia to load trailer # 7601 for the next day.

On July 14 plaintiff returned to New Iberia and tried to spread his load of lime, but once again the blower on the tractor went out. Plaintiff was alone because the other trucks had already unloaded and left. Plaintiff testified that he called White, who advised him to "belly drop" the load, that is, to open up the doors on the bottom of the trailer which would permit the lime to fall out. In doing so, plaintiff was again covered with lime.

White denied telling plaintiff to belly drop the lime on July 14. He admitted, however, that he was aware that plaintiff had unloaded in that manner because he had approved plaintiff's request for supplemental pay for the extra time required for the belly drop. White also admitted that he did not make any written complaints to plaintiff about the method he used to unload the lime.

Plaintiff returned to Burnside after making the belly drop and reported the problems to the MDS mechanic, who found a broken check valve on trailer # 7601 which was causing the tractor blowers to burn *1246 out. However, the mechanic could not make repairs because he was unable to get a new valve. Plaintiff testified that the mechanic told White and him that the only way trailer # 7601 could be used was for the driver to open the valve manually before starting a "spreading pass" and then to close the valve manually whenever the truck stopped, e.g., before every turn.

Plaintiff testified that by the time he returned to Burnside on July 14, his skin was burning from the exposure to lime. He complained about it to the MDS mechanic, who told him to put hand cleaner on his skin and leave it there. He bathed in epsom salts that night, and the next day he had no visible sign of lime exposure.

Plaintiff's next exposure to lime was on July 18. He was assigned trailer # 7601 to do a spread job in Bayou Vista. The check valve still had not been repaired, so plaintiff was once more forced to open and close the valve manually. After three or four hours' exposure to lime during unloading, he began to develop blisters. Plaintiff testified that he intended to seek medical attention when he finished the Bayou Vista job. When he returned to Amelia he found he had been assigned a silo job in Taft. He showed his burns to the loader at Dravo and told him he could not take the load. The loader told him to talk to Frehage, who advised him to call the Burnside terminal. Plaintiff testified that he was afraid that if he called White and refused to haul the load he would be fired, so he made the silo run that afternoon. Bathing was of no help that night in easing the burning sensation. The next morning he went to the emergency room at Lakewood Hospital. He was treated there for third-degree chemical splash burns on his lower legs.

NEGLIGENCE OF DRAVO

Dravo contends that plaintiff was negligent in exposing himself to lime when he was aware that his skin was becoming more and more irritated with each exposure. Dravo further contends that plaintiff's negligence was the sole cause of his injuries and that the jury erred in finding that Dravo was negligent.

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

Related

Allen v. EXHIBITION HALL AUTHORITY
842 So. 2d 373 (Supreme Court of Louisiana, 2003)
Louviere v. Woodson Construction Co.
679 So. 2d 1013 (Louisiana Court of Appeal, 1996)
Duncan v. Balcor Property Management, Inc.
615 So. 2d 985 (Louisiana Court of Appeal, 1993)
Mathew v. Aetna Cas. and Sur. Co.
578 So. 2d 242 (Louisiana Court of Appeal, 1991)
Croy v. BOLLINGER MACH. SHOP & SHIPYARD
578 So. 2d 945 (Louisiana Court of Appeal, 1991)
Crochet v. Westminster City Center Prop.
572 So. 2d 720 (Louisiana Court of Appeal, 1990)
Short v. Mobil Oil Corp.
544 So. 2d 572 (Louisiana Court of Appeal, 1989)
Burleigh v. South Louisiana Contractors
525 So. 2d 87 (Louisiana Court of Appeal, 1988)
Aetna Cas. & Sur. v. Schwegmann W. Exp.
516 So. 2d 412 (Louisiana Court of Appeal, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
506 So. 2d 1243, 1987 La. App. LEXIS 9359, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-material-delivery-service-inc-lactapp-1987.