Doucet v. B & R Petroleum Services, Inc.

546 So. 2d 626, 1989 La. App. LEXIS 1395, 1989 WL 71218
CourtLouisiana Court of Appeal
DecidedJune 28, 1989
DocketNo. 88-409
StatusPublished
Cited by3 cases

This text of 546 So. 2d 626 (Doucet v. B & R Petroleum Services, 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
Doucet v. B & R Petroleum Services, Inc., 546 So. 2d 626, 1989 La. App. LEXIS 1395, 1989 WL 71218 (La. Ct. App. 1989).

Opinion

LABORDE, Judge.

On January 9, 1985, plaintiff, Joseph B. Doucet, filed this tort suit against B & R Petroleum Services, Inc. (“B & R”), and its insurer, Western Employer’s Insurance Company (Western), seeking damages for injuries he sustained when an employee of defendant accidentally let go of a cheater pipe which struck the plaintiff on the head.1 On January 14, 1985, Safeco Insurance Companies (Safeco), the workmen’s compensation insurer of plaintiff’s employer, filed a petition of intervention. Trial was held from October 20, 1987 through October 26, 1987. The jury, by unanimous special verdict found that the plaintiff had sustained damages of $5,000.00 for past pain and suffering and $2,508.89 for past medical expenses. This amount was re[628]*628duced in accordance with the jury’s finding that plaintiff was 90% at fault and defendant was 10% at fault. Accordingly, the trial court awarded judgment in favor of plaintiff against B & R and Western in solido for $500.00 together with legal interest from the date of judicial demand. The trial court also awarded Safeco $250.89 against defendants in solido, together with legal interest from the date of judicial demand. Plaintiffs motion for J.N.O.V. or alternately for a new trial and Safeco’s motion for a new trial were denied by the trial court. Safeco dismissed its appeal and thus only plaintiff appeals the decision. We find that the jury award in favor of plaintiff was reasonable. However, we find that the jury erred in finding 90% fault on the part of the plaintiff. We find that the plaintiff was 25% at fault and the defendant was 75% at fault. Thus, we amend the judgment in favor of plaintiff to the amount of $3,750.00.

FACTS

Plaintiff was employed as a truck driver by Sam Grimmett, Inc. On January 13, 1984, plaintiff drove a truck towing a mud tank loaded on a flat-bed trailer to a rig site in Ponchatoula, Louisiana. Plaintiffs shop foreman, George Hardy, drove another truck carrying a pump and a fuel tank to the site. The mud tank was secured to the trailer by means of chains locked by a clasp or binder. The binder had to be unfastened in order to unload the mud tank.

At the site, Lionel Lassange, an employee of “B & R”, climbed on the trailer bed in order to unfasten the binder. Lassange attempted to unsnap the binder by hand but could not release it, so he used plaintiffs cheater pipe to accomplish the task. A cheater pipe is a piece of iron frequently used when the chain is too tight to allow unsnapping the binder by hand. This one was approximately 5' long and in diameter. Lassange testified that while attempting to use the cheater pipe to unsnap the binder, the chain was so tight, “it threw the pipe away from me, and I couldn’t hold it. It just threw it out of my hands, and it went towards them, and it hit J.B. upside the head.” At the time, plaintiff was standing on the ground some ten feet away from where Lassange was working. He was not wearing a hard hat and the blow from the flying cheater pipe knocked him to the ground. Plaintiff testified that the accident rendered him unconscious and that he bit his tongue. He was taken to the emergency room at the General Hospital in Hammond by Fred Booksh, a superintendent for “B & R.” There, he received 12 stitches for his lacerated forehead and medication for his cut tongue. Plaintiff then returned to the well site and drove the truck back to his employer’s headquarters in Port Barre, Louisiana.

On the following Monday, January 16, 1984, plaintiff saw his personal physician, Dr. Glynn Granger, who determined that the head wound was healing quite well. Plaintiff returned to work the following day. On January 23, 1984, Dr. Granger again checked the head wound, and found that it had completely healed. However, plaintiff returned to Dr. Granger on February 3, 1984, complaining of headaches and a sore on his tongue. He went to see the doctor again on April 27, 1984, at which time plaintiff was still having headaches and his tongue, although better, had not healed. Plaintiff did not visit Dr. Granger again until September 4, 1984. Dr. Gran-ger informed the plaintiff that, as the sore on his tongue still had not fully healed, he was concerned that it might be cancerous. He advised that the lesion be removed. Dr. Granger performed this surgery on September 17, 1984. The biopsy of the lesion showed that it was not cancerous.

Plaintiff visited Dr. Granger on several occasions in October, complaining of headaches, ringing in his ears, and sexual impotency. On December 5,1984, plaintiff was hospitalized for depression and a severe nervous attack. At that stage, plaintiff saw three psychiatrists: Dr. Philip A. Landry, Dr. Clayton B. Edisen, and Dr. James Howell Blackburn. Plaintiff’s complaints persisted and he also developed an ulcer in 1986.

ALLOCATION OF FAULT

LSA-C.C. art. 2315 is the basis of the law of negligence in Louisiana. It states in pertinent part:

[629]*629“Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”

In determining whether liability exists under the facts of a given case, Louisiana courts have employed a “duty-risk” analysis. Dixie Drive It Yourself System, Inc., v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962). In making the requisite analysis four questions are to be considered:

1. Was the conduct in question a cause-in-fact of the resulting harm?

2. What, if any, duties were owed by the respective parties?

3. Were the requisite duties breached?

4. Was the risk, and harm caused, within the scope of protection afforded by the duty breached?

Mart v. Hill, 505 So.2d 1120 (La.1987); Pierre v. Allstate Insurance Co., 257 La. 471, 242 So.2d 821 (1970).

The initial inquiry in any duty-risk analysis involves causation. There must be a causal relationship between the defendant’s alleged conduct and the harm to the plaintiff. Hill v. Lundin and Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Silliker v. St. Landry Police Jury, 520 So.2d 880 (La.App. 3d Cir.1987). In the instant case, the action of “B & R’s” employee, Las-sange, in letting go of the cheater pipe was indeed a cause in fact of the resulting harm.

The duty issue is a policy inquiry into whether the defendant’s duty to the victim included protection against the particular injury. Sibley v. Gifford Hill and Co., Inc., 475 So.2d 315 (La.1985). We find that “B & R’s” employee owed plaintiff a duty to exercise ordinary care in using the cheater pipe to unfasten the binder. By letting go of the cheater pipe, he breached the standard of conduct ordinarily expected under the circumstances. Furthermore, he should have reasonably foreseen that, as a result of his action, some such injury as plaintiff suffered might occur. Thus, we conclude that the jury was correct in finding negligence on the part of “B & R’s” employee.

Turning to an analysis of plaintiff's actions, plaintiff argues that the jury erred in finding that his conduct contributed to the accident. Plaintiff admits that he was not wearing a hard hat at the time of the accident. However, he claims that he was not required to do so by his employer because there was no overhead construction at the Ponchatoula site.

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Cite This Page — Counsel Stack

Bluebook (online)
546 So. 2d 626, 1989 La. App. LEXIS 1395, 1989 WL 71218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doucet-v-b-r-petroleum-services-inc-lactapp-1989.