Krake v. Exxon Co. USA

466 So. 2d 625, 1985 La. App. LEXIS 8460
CourtLouisiana Court of Appeal
DecidedMarch 11, 1985
DocketNo. 84-CA-442
StatusPublished
Cited by1 cases

This text of 466 So. 2d 625 (Krake v. Exxon Co. USA) 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
Krake v. Exxon Co. USA, 466 So. 2d 625, 1985 La. App. LEXIS 8460 (La. Ct. App. 1985).

Opinion

CURRAULT, Judge.

This appeal originates in the Twenty-Fourth Judicial District Court, Parish of Jefferson, Division “N”, wherein the Honorable James L. Cannella rendered judgment in favor of plaintiff Terri Krake and against defendants Exxon Company, U.S.A. and Loyal Vern Hoover, in solido, in the full amount of Two Hundred Twenty-Eight Thousand, Six Hundred Sixteen Dollars ($228,616). We affirm.

Terri Krake, a Jefferson Parish deputy sheriff, was on road duty during the early morning hours of July 28, 1981 when she received a dispatch to go to the scene of an overturned gasoline tanker. Loyal Vern Hoover, an employee of Exxon, U.S.A., was in the process of delivering gasoline to a service station when he backed his gasoline tanker into a ditch adjacent to the station overturning it. Gasoline began spilling from the overturned truck onto the surrounding area and was subsequently ignited when it apparently came into contact with a hot water heater located at a nearby house. After the tanker ignited, the fire spread down the drainage ditch causing explosions which sent the sewer covers into the air.

Deputy Krake, who had been assisting in the evacuation of residents from nearby houses, was standing near one of the ditch covers when it exploded and was herself thrown into the air and injured. It is clear that Officer Krake’s injuries are causally related to the negligent operation of the Exxon truck by defendant Hoover.

Defendants appeal asserting the following errors:

(1) The trial court erred in failing to find that plaintiff Ms. Krake assumed the risk and is thus barred from any claims against defendants-appellants.

(2) The trial court erred in failing to find that plaintiff Ms. Krake was contributorily negligent and that her own negligence was the cause in fact and proximate cause of her injuries, and that any judgment against defendants should be reduced by the comparative proportion of plaintiff’s negligence.

(3) The trial court erred in awarding damages for lost future earnings when the examination and testimony of Ms. Krake’s own treating physician indicates that she could work at jobs with equal earnings potential to that which she had at the time of the accident.

(4) The trial court erred in awarding an amount for physical and mental pain and [627]*627suffering far in excess of that justified by the injuries, if any, suffered by Ms. Krake.

Without question, defendant Loyal Hoover was negligent in overturning his truck during a backing maneuver. LSA-C.C. arts. 2315, 2316, 2317. Hence the only question is whether plaintiff, by reason of her employment as a police officer, assumed the risk of the harm encountered; and, if not, whether she was guilty of contributory negligence in not moving further away from the scene of the accident once it became apparent that the spreading gasoline had ignited.

The essential elements of assumption of the risk are: (1) knowledge and appreciation of the danger on the part of the victim; and (2) a voluntary encountering of that danger. Burmaster v. Gravity Drainage Dist. No. 2, 448 So.2d 162 (La.App. 5th Cir.1984); Giovingo v. Cochiara, 449 So.2d 699 (La.App. 5th Cir.1984), writ denied September 14, 1984. After reviewing the record we conclude that plaintiff was ordered to the scene in her professional capacity without choice or alternatives. Accordingly, as the exposure to the risk-causing danger was not voluntarily encountered, the defense of assumption of the risk is inapplicable.

Appellants argue plaintiff was con-tributorily negligent in that she placed herself in a position of open and obvious danger failing to exercise the care that a reasonably prudent person would exercise under these circumstances. The trial court concluded appellants “have not borne their burden of proof, by a preponderance of the evidence, relative to their .defense of ... contributory negligence.”

Plaintiff was in the process of evacuating local residents when the spreading gasoline ignited. She and her fellow officers ran down the street away from the immediate area as the overturned truck caught fire. Once she was approximately one-half block away, she stopped, turned, and saw the firemen fighting the blaze. The flames engulfing the truck ignited the gasoline in the drainage ditch which in turn began to explode sending drain covers into the air. Plaintiff was near one of those covers as it and she were lifted into the air.

Plaintiff testified when she turned to run, she simply “took off” down the middle of the street which was where she was when the fire began. We cannot see how she contributed to her injuries through any of her actions or omissions. She responded to the situation she faced as any reasonably prudent person would. The fact that she was close to a drain cover does not constitute negligence; nor that she did not instantaneously remove herself from close proximity to a drain cover as they began to explode. After a complete review of the record, we cannot say the trial judge was “clearly wrong.” Arceneaux v. Do-mingue, 365 So.2d 1330 (La.1978).

QUANTUM

Appellants’ problem with the damages awarded for plaintiffs lost future earnings stems from the fact that there were two depositions given by Dr. Rubin, plaintiffs treating physician. The initial deposition was taken February 10, 1983 and was utilized at trial by Mr. Bobby Roberts, plaintiffs rehabilitation expert. The second deposition, dated October 17, 1983, was not taken until after trial and thus unavailable to those testifying at trial. Appellants argue the second deposition contradicts the conclusions relied upon by the trial court.

The trial court heard the testimony of Mr. Roberts and that of Mrs. Jennifer Palmer, defendants’ rehabilitation expert. The trial judge, considering the testimony of these two vocational experts, chose to rely upon the testimony and findings of Mr. Roberts, concluding he was “more reasonable, convincing and [his findings] were based more accurately on evidence heard at trial.” Appellants argue such reliance was improperly placed as Dr. Rubin’s second deposition contradicts the basic assumptions contained in the first deposition which Mr. Roberts had based his opinion upon. Appellee argues Dr. Rubin’s second deposition does not contradict the findings in his [628]*628first, but rather gives stronger support for the trial court’s conclusions.

Dr. Rubin’s second deposition was taken October 17, 1983, some ten days after the trial had been had and for the specific purpose of updating Dr. Rubin’s treatment from the date of his earlier deposition. In the follow-up deposition, Dr. Rubin testified that Ms. Krake had seen him again in April of 1983 and related that she had had an additional blackout spell and as a result of the blackout had fallen and torn tendons in her right leg which necessitated treatment by an orthopedic surgeon. She related to him in April of 1983 that the balance problems and dizzy episodes were continuing pretty much as they had been previously but she had only blacked out this one particular time. Again, Dr. Rubin’s tests in April of 1983 confirmed his previous diagnosis.

She was next seen in August of 1983 and reported that in the interim she had not had any additional blacking out spells but was continuing to have dizzy episodes at about the same frequency. She was last seen on September 27, 1983 and again reported no additional blackout spells since the April, 1983 visit but continued to complain of dizziness. Dr.

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466 So. 2d 625, 1985 La. App. LEXIS 8460, Counsel Stack Legal Research, https://law.counselstack.com/opinion/krake-v-exxon-co-usa-lactapp-1985.