Romano v. Lomasney

423 So. 2d 787, 1982 La. App. LEXIS 8607
CourtLouisiana Court of Appeal
DecidedDecember 2, 1982
DocketNo. 13164
StatusPublished
Cited by2 cases

This text of 423 So. 2d 787 (Romano v. Lomasney) 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
Romano v. Lomasney, 423 So. 2d 787, 1982 La. App. LEXIS 8607 (La. Ct. App. 1982).

Opinion

WARD, Judge.

John Romano filed suit in Orleans Parish Civil District Court claiming damages for injuries he sustained while working for Southern Imperial Coatings Corporation (Southern), a manufacturer of paint. He sued numerous parties, corporate and individual, including his corporate employer’s executive officers: Henry and John Lomas-ney, Eddie Borne and their insurer, Commercial Union Insurance Company. Romano has a cause of action against the executive officers because his injury occurred before the effective date of Act 147 of 1976, (LSA-R.S. 23:1032) which immunized executive officers from an employee’s claims for personal injuries from negligent acts. His suit against the other defendants was resolved when the Trial Judge granted their motion for a directed verdict.

During the course of the trial, Romano also moved for a directed verdict against the remaining defendants, who were his corporate employer’s executive officers, and the Trial Judge granted the motion and ordered the jury to render its verdict on the issue of liability in favor of Romano and against Henry and John Lomasney, Eddie Borne, and Commercial Union Insurance Company, but he instructed the jury to decide the amount of damages to be awarded to Romano. The jury awarded $500,-000.00 in damages to Romano.

The defendants who were cast in judgment have appealed, claiming that the Trial Judge erred when he granted the plaintiff’s motion for a directed verdict because “reasonable and fair-minded men” could have disagreed whether defendants Henry and John Lomasney had violated the Child Labor Law, LSA-R.S. 23:151, et seq., because Romano had falsely stated that he was 18 in his application for employment and because his duties were not those proscribed by the Child Labor Law. They also argue that reasonable and fair-minded men could have disagreed whether defendants Henry and John Lomasney were the manufacturers of an unreasonably dangerous machine. They further claim that Romano was contributo-rily negligent, that he assumed the risk of the injury, and that the jury abused its discretion in its award of damages because the amount is speculative and, therefore, excessive.

Romano has answered their appeal, but he has not appealed either the jury’s award of damages or the directed verdict in favor of the other defendants. The insurer of Southern and its executive officers, Commercial Union, is also the workmen’s compensation insurer, and has intervened and joined in this appeal to recover the benefits which it has paid for Workmen’s Compensation.

We believe the Trial Judge was correct in granting the directed verdict against Henry and John Lomasney, Eddie Borne, and Commercial Union Insurance Company and we affirm his decision for the following reasons.

A directed verdict may be rendered when, having considered all the evidence in the light most favorable to the opposing party, the Trial Judge determines that reasonable men could not arrive at a contrary verdict. Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir.1979). To answer the question of whether the directed verdict was properly granted in the instant case, we “must view and interpret the facts [789]*789in the light most favorable” to the party opposing the directed verdict, in this case, the defendants. Grimes v. Stander, 394 So.2d 1332 (La.App. 1st Cir.1981).

The Trial Judge did not err when he directed a verdict in favor of Romano. The evidence, when considered in the light most favorable to defendants, clearly indicates that reasonable persons could not arrive at a verdict in favor of Henry and John Lo-masney and Eddie Borne on the issue of liability.

On the first issue, the question of whether the defendants violated the Child Labor Law, the statute in question is LSA-R.S. 23:161. It states in pertinent part:

No minor under the age of eighteen years (except those indentured as apprentices in accordance with Chapter 4 of this Title) shall be employed, permitted or suffered to work:
(1) In oiling, cleaning, or wiping machinery or shafting, or in applying belts to pulleys;

Southern breached the duty imposed by 23:161, which provides statutory protection for minors by prohibiting their being employed to clean and wipe machinery. In light of the overwhelming evidence, reasonable men could not disagree that Romano was only 17 years of age when he was employed by an executive officer who was under the supervision of Henry and John Lomasney and then assigned to clean and wipe high speed machinery. The Trial Judge correctly concluded that this activity is prohibited by LSA-R.S. 23:161. Employers have been held to breach the statutory prohibition even in those instances where the employer inadvertently employs a minor. Alexander v. Standard Oil Co. of Louisiana, 140 La. 54, 72 So. 806 (1916). The directed verdict was proper on this issue.

Moreover, even if Southern did not breach the statute because they inadvertently employed Romano when he was 17, relying upon Romano’s false statement as to his age, we believe that Southern was negligent. The evidence presented during the trial before a jury showed that Romano had first been employed by Southern when he was only 17 years old because he had falsely stated in his application for employment that his age was 18. After several months, Romano was promoted to a “batch-er” whose duty it was to scrape paint from the sides of paint mixing machines. On November 13, 1974, while he was scraping paint, his hair, fashioned in a pony tail, became entangled in the shaft of a high-speed mixing machine which ripped both his hair and scalp from his head. He was seriously injured and permanently disfigured. At the time of the accident, although Romano had been employed several months, he was still only 17 years of age.

As a matter of policy, Southern does not employ persons 17 years of age. As a matter of policy, however, neither does it ask for proof of age from applicants for employment. We believe that executive officers of a corporation have a duty to establish and enforce policies that require youthful persons who apply for employment to present proof of age before they are employed. This is especially true when they are to be employed in industrial work. The duty exists because a reasonably prudent executive officer would establish and enforce such a policy. Because there is statutory prohibition against 17 year olds doing particular jobs, we feel there is a corresponding duty imposed on employers to require proof of age to insure that an employee is 18, before he is assigned to work activities which are prohibited to those under 18. Common experience shows that there is a foreseeable risk known to reasonable men that underage persons seeking employment will falsify their age on the application. That same experience shows that when proof of age is not required, underaged persons may be injured when they are employed to perform duties which are hazardous to them and which they are prohibited by statute from performing. Moreover, the legislature, when it enacted LSA-R.S. 23:161, recognized that, as a matter of policy, there is a foreseeable risk of injury to a 17 year old who is employed to clean machinery. In summary, we believe that there is a duty to require proof of age [790]*790from youthful applicants in order to avoid the obvious risk of employing those who are declared by statute, too young to do hazardous work. This duty was owed to Romano because there was clearly a foreseeable risk of injury to him, an inexperienced youth.

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Related

Greene v. Lovisa
221 So. 3d 270 (Louisiana Court of Appeal, 2017)
Romano v. Lomasney
427 So. 2d 1197 (Supreme Court of Louisiana, 1983)

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Bluebook (online)
423 So. 2d 787, 1982 La. App. LEXIS 8607, Counsel Stack Legal Research, https://law.counselstack.com/opinion/romano-v-lomasney-lactapp-1982.