Orr v. Otto Candies, Inc.

875 So. 2d 1030, 4 La.App. 3 Cir. 60, 2004 La. App. LEXIS 1477, 2004 WL 1254062
CourtLouisiana Court of Appeal
DecidedJune 9, 2004
DocketNo. 04-60
StatusPublished
Cited by1 cases

This text of 875 So. 2d 1030 (Orr v. Otto Candies, 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
Orr v. Otto Candies, Inc., 875 So. 2d 1030, 4 La.App. 3 Cir. 60, 2004 La. App. LEXIS 1477, 2004 WL 1254062 (La. Ct. App. 2004).

Opinion

|,AMY, Judge.

The plaintiff, a merchant marine, filed suit for damages after he sustained injury on the defendant’s property. The trial court found in favor of the defendant, concluding that any fault for the fall was to be equally apportioned between the plaintiff and the plaintiffs employer. The plaintiff appeals. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiff, George Michael Orr, was employed by Otto Candies, Inc., as a mate aboard the M/V Ferdie Candies, a push boat. The record indicates that, at the time of the accident in question, the Ferdie Candies was engaged in fleet work in the Port of Iberia. The accident occurred in the late evening of March 4, or the early morning of March 5, 1998, after the Ferdie Candies traveled to the business of the defendant, D & D Fuel Dock, to take on water. As the Ferdie Candies was not taking on fuel, the vessel was moored to the south side of the facility, where it had been granted permission to take on water. D & D Fuel Dock did not charge for the cost of the water provided.

According to the plaintiff, when he awoke from a nap on the evening of March 4, he informed his shipmates he would take on the task of disconnecting the water hose. His shipmates returned to their quarters before he began to do so. In the petition instituting this matter, the plaintiff alleged that while he was completing the task, he sustained severe injuries when he stepped into a hole. The plaintiff sought recovery for related damages pursuant to La.Civ.Code arts. 2315, 2317, and 2317.1.1

| ¡.The “hole,” at issue is described in the record as area of “washout” along the bulkhead on the defendant’s property. The existence of the condition is not contested. However, D & D Fuel Dock points out that the fall occurred on a bulkhead located on the south side of its property, an area where it does not conduct regular business. D & D Fuel Dock provided testimony indicating that its business operations of providing fuel and oil are conducted on an improved fueling dock. Furthermore, D & D Fuel Dock contends, the Ferdie Candies was warned of the condition when permission was granted for the vessel to take on the water.

Following a bench trial, the trial court ruled in favor of the defendant. Written reasons for ruling reveal a finding that D & D Fuel Dock acted reasonably as it informed the plaintiffs employer of the condition along this area of its bulkhead. [1032]*1032The court found that the cause of the fall was the combined negligence/fault of the plaintiff and his employer, Otto Candies. In particular, the trial court referenced the plaintiffs entry on to the property at night when he could not see the ground.

The plaintiff appeals, assigning the following as error:

[1.] The Trial Court erred in its finding that the Defendant/Appellee, D & D Fuel Dock, Inc., breached no duty to PlaintiffiAppellant, George Michael Orr.
[2.] The Trial Court erred in its application of the law regarding Defendant/Appellee, D&D Fuel Dock, Inc.’s, duty to Plaintiff/Appellant, George Michael Orr.
[3.] The Trial Court erred in its finding that the sole cause of Plaintiffs accident and injuries was the fault of Plaintiffs Jones Act employer and Plaintiff.
[4.] The Trial Court erred in failing to award damages to PlaintiffAppel-lant, George Michael Orr.

| ^Discussion

Liability

With regard to the issue of the liability of D & D Fuel Dock, the plaintiff argues that the trial court erred in concluding that the defendant satisfied any duties owed. The plaintiff contends that it was error for the trial court to conclude that any duty required of the defendant was satisfied by D & D informing the captain of the Ferdie Candies of the washouts. Furthermore, the plaintiff points out that the washouts were a longstanding condition of the bulkhead area and that there was no operational lighting on the portion of D & D Fuel Dock. He requests that this court find D&D Fuel Dock at least 50% responsible for the accident.

In ruling on the matter, the trial court extensively reviewed the facts of the case, making numerous factual findings, and ultimately concluded:

Under Louisiana Civil Code article 2317.1, there are certain duties on D & D in connection with its property. However, D&D met its duty on its property by advising and warning the captain of the Ferdie Candies of the washouts, of their danger, and of their existence. Thus, D & D did not breach its duty in that it appropriately warned the appropriate person with the Ferdie Candies, the captain, of the dangers of traversing their land. D & D is not the insurer of the safety of the visitors and is only under a duty to keep the premises in a reasonably safe condition for use in a manner consistent with the purpose for which the premises was intended. David v. Roen[Reon], 520 So.2d 820 ([La.App.] 3 Cir.1987). The landowner is not liable for an injury resulting from a condition which the landowner has adequately warned and advised the supervisor of the plaintiff. In this case D & D exercised reasonable care in advising the supervisor of the plaintiff. In this case D&D exercised reasonable care in advising the captain of the Ferdie Candies of the location and existence of the unhidden washouts. D & D, as operator of the premises, only had the duty to act reasonably in view of the probability of injury to the others. Shelton v. Aetna Casualty and Surety Company, 334 So.2d 406 (La.1976). D&D was reasonable in the manner in which it carried out its duty to warn of the existence of the washouts. First, the area of land where the Ferdie Candies desired to obtain water was not the work premises of D & D. The area was not illuminated and such was obvious to [Relief Captain] Jude Guilliot and the captain of the ves[1033]*1033sel, Glenn Guidry. Additionally, the washout areas were obviously visible Land observable by them. The captain and relief captain of the Ferdie Candies chose to have their vessel loaded with water in this area with washouts instead of in the improved dock area of D & D around the canal.
George Michael Orr as a seaman and one of years of experience has a duty to act reasonably to protect himself. A seaman meets this standard by acting as a reasonable seaman would act under the circumstances. Muhammad v. Diamond Services[Offshore] Company, 822 So.2d 869 ([La.App.] 3 Cir.2002). George Michael Orr testified that he could not see the ground where he was walking. He testified that he could not see his feet. He testified that there was no illumination. For a seaman to proceed across an area of land adjacent to a waterway and bulkheaded with wood between the waterway and the land without knowing and being able to see the condition of the land has no concern for his own safety. George Michael Orr filled out a document in connection with the accident which was introduced as Defendant’s Exhibit 2. Question number 6 was who was supervising his work at the time. His statement was that it was his responsibility. In filling out another accident report introduced as Defendant’s Exhibit 1, question 15, subpart (d) asked if the accident was the result of the individual’s own negligence.

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Cite This Page — Counsel Stack

Bluebook (online)
875 So. 2d 1030, 4 La.App. 3 Cir. 60, 2004 La. App. LEXIS 1477, 2004 WL 1254062, Counsel Stack Legal Research, https://law.counselstack.com/opinion/orr-v-otto-candies-inc-lactapp-2004.