McNeill v. LANDSTAR RANGER, INC.

986 So. 2d 905, 2008 WL 2357359
CourtLouisiana Court of Appeal
DecidedJune 11, 2008
Docket43,362-CA
StatusPublished
Cited by6 cases

This text of 986 So. 2d 905 (McNeill v. LANDSTAR RANGER, 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
McNeill v. LANDSTAR RANGER, INC., 986 So. 2d 905, 2008 WL 2357359 (La. Ct. App. 2008).

Opinion

986 So.2d 905 (2008)

Herbert Randall McNEILL and Rita Miller McNeill, Plaintiffs-Appellants,
v.
LANDSTAR RANGER, INC., Defendant-Appellee.

No. 43,362-CA.

Court of Appeal of Louisiana, Second Circuit.

June 11, 2008.

*908 James M. Johnson, for Appellants.

Provosty, Sadler, deLaunay, Fiorenza & Sobel, by Ronald J. Fiorenza, Jeremy C. Cedars, Alexandria, for Appellee.

Johnson, Stiltner & Rahman, by Patricia Jackson Delpit, Baton Rouge, for Intervenor, LWCC.

Before GASKINS, CARAWAY and DREW, JJ.

CARAWAY, J.

The plaintiff was injured when the back end of the forklift he operated dropped from the back of the truck he was loading and lodged on a loading dock after the truck pulled forward. A jury allocated the truck driver, the plaintiff and plaintiff's co-employee each with one-third of the fault for the accident and awarded McNeill lost income and general damages but denied consortium damages to McNeill's wife. This appeal by the McNeills ensued. We affirm.

Facts

The plaintiff, Herbert Randall McNeill, worked as a warehouse supervisor for Explo Systems, Inc. ("Explo"), at its Camp Minden facility. Explo contracted with the United States government for removal of TNT from bombs that were transported to Explo's loading docks by tractor trailer trucks. Forklifts were utilized to remove the bombs from the trucks. On the morning of July 6, 2006, McNeill performed the dual role of supervising Charlariet "Frosty" White and driving a forklift. White flagged the trucks to the unloading location on the dock.

At the time of the accident, Don Ledford, Jr., owner-operator for Landstar Ranger, Inc., positioned his truck at Explo's dock. The truck transported 26 pallets, each containing two 750 lb. bombs. Federal HazMat regulations for unloading hazardous materials require that the truck engine be turned off and the brakes set. The flagman motions the driver with a throat slashing signal which informs him to kill the engine and set the brakes. After initial compliance with these requirements, McNeill successfully unloaded approximately 22 bombs from Ledford's truck.

Before the unloading process for Ledford's truck could conclude, the temporary metal apparatus that connects the dock to the truck, referred to as the dock plate, became dislodged and inoperable. To remedy the situation, White requested that Ledford pull his truck away from the dock. After White flagged Ledford forward, the dock plate was adjusted. White then directed Ledford back to the dock and held his hand out for Ledford to stop. Ledford complied, but never killed the engine of the truck. According to Ledford's testimony, White then dropped his hands and Ledford interpreted White's movement as a signal that unloading was complete. *909 Ledford pulled the truck forward without knowing that McNeill had begun moving his forklift onto the truck to finish unloading the bombs. As Ledford pulled forward, McNeill's forklift was partially inside of the truck and partially on the dock and dock plate. The forward movement of the truck caused the dock plate to release and the forklift to drop.

The forklift came to rest lodged between the truck and the dock with the rear of the vehicle having dropped approximately 4 feet off the dock and the front wheels still in the truck's trailer. As the forklift fell, McNeill was able to grab the roll cage with his left hand and the steering wheel with his right hand. He received injuries from the downward jolt to his left arm, shoulder and back. McNeill reported to the Minden hospital on the day of the accident where he was evaluated and referred to his family physician.

Five days after the accident, McNeill saw his family physician on July 11 with complaints of back, neck and shoulder pain. His physician treated him with anti-inflammatory medication until McNeill's return to his office on July 17. Because McNeill reported a slight improvement in his condition, his physician released him to return to work which McNeill was willing to try. McNeill returned to work while under the continued care of his physician, although he did not perform at full duty.

On August 24, 2006, an explosion occurred at Explo. McNeill saw smoke coming from the third floor of the plant and yelled at White and another individual to move away from the premises. As the employees moved toward the plant gate, the building exploded and knocked McNeill off of his feet onto his left side. White assisted McNeill over a 6-ft. fence and through woods. McNeill received emergency room treatment and returned to his family physician the following day. He was unable to return to employment with Explo after the explosion.

On February 23, 2007, McNeill and his wife, Rita Miller McNeill, instituted suit against Landstar Ranger, Inc., seeking damages for the injuries he received from the July 6, 2006 accident.[1] A jury allocated fault equally (1/3 each) to Ledford (Landstar), McNeill and White and awarded $1,000 general damages and $1,000 lost income to McNeill. Rita McNeill's claim for consortium damages was rejected. The McNeills appeal the judgment contending that the fault allocation to Landstar and damage determinations are manifestly erroneous.

Discussion

I.

The trier of fact is required to compare the relative fault of the parties in assessing liability. The fault of all persons causing or contributing to the injury shall be determined. La. C.C. art. 2323. In allocating fault, the trial court must consider the nature of each party's conduct and the extent of the causal relationship between that conduct and the damages claimed. Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967 (La.1985); Morris v. Flores, 36,932 (La.App.2d Cir.3/7/03), 840 So.2d 1257; McCullin v. U.S. Agencies Casualty Ins. Co., 34,661 (La.App.2d Cir.5/9/01), 786 So.2d 269. Factors which may influence the degree of fault assigned to each party include: (1) whether the conduct resulted from inadvertence or involved an awareness of danger; (2) how great a risk the conduct created; (3) the significance of what the *910 actors sought by the conduct; (4) the capacities of the actors, whether superior or inferior; and (5) any extenuating circumstances which might require the actors to proceed in haste, without proper forethought. Watson, supra; McCullin, supra.

The trial court's apportionment of fault is a factual determination subject to the manifest error standard of review. Williams v. City of Monroe, 27,065 (La. App.2d Cir.7/3/95), 658 So.2d 820, writs denied, 95-1998 (La.12/15/95), 664 So.2d 451, 95-2017 (La.12/15/95), 664 So.2d 452.

On appeal McNeill argues that Ledford's fault should be increased to 50% and his reduced to 25%. However, the primary question to be addressed is whether the one-third fault assessment to the judgment debtor, Landstar, is abusively low and manifestly in error. Significantly, in making this argument therefore, McNeill admits that a portion of the fault or negligence is attributable to the Explo employees regardless of the allocation between the two of them.

The accounts of the four witnesses to the accident were consistent in most regards. The men had successfully and appropriately unloaded most of the bombs from Ledford's truck without incident. When the dock plate became dislodged, Ledford was requested to move his truck forward so that McNeill could re-adjust it. Ledford was directed by White to move his truck forward and when the plate was adjusted by McNeill, White successfully directed Ledford back to the dock.

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Cite This Page — Counsel Stack

Bluebook (online)
986 So. 2d 905, 2008 WL 2357359, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcneill-v-landstar-ranger-inc-lactapp-2008.