Rudd v. Atlas Processing Refinery

644 So. 2d 402, 1994 WL 532918
CourtLouisiana Court of Appeal
DecidedSeptember 21, 1994
Docket26048-CA
StatusPublished
Cited by16 cases

This text of 644 So. 2d 402 (Rudd v. Atlas Processing Refinery) 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
Rudd v. Atlas Processing Refinery, 644 So. 2d 402, 1994 WL 532918 (La. Ct. App. 1994).

Opinion

644 So.2d 402 (1994)

John M. RUDD, et ux, Plaintiffs-Appellees,
v.
ATLAS PROCESSING REFINERY, et al., Defendant-Appellant.

No. 26048-CA.

Court of Appeal of Louisiana, Second Circuit.

September 21, 1994.
Writ Denied December 16, 1994.

*403 Smitherman, Lunn, Chastain & Hill by W. James Hill, III, Donald Lee Brice, Jr. and Michael E. Powell, III, Shreveport, for appellant, Atlas Processing Co.

Patricia N. Miramon, Shreveport, for appellees, John and Willie Russ.

Cook, Yancey, King & Galloway by Timothy B. Burnham, Shreveport, for appellee, Federated Mut. Ins. Co.

Before MARVIN, C.J., NORRIS, J., and JONES, J. Pro Tem.

MARVIN, Chief Judge.

In this action arising out of a slip and fall at the Atlas refinery in Shreveport, Atlas appeals a judgment awarding more than $370,000 in damages to Rudd and his wife. In six assignments, Atlas attacks the trial court's findings as to liability, comparative negligence, the excessiveness of the awards and the admissibility of photographs of the loading dock area where Rudd slipped on an accumulation of diesel fuel, dirt and water on the dock surface.

We affirm.

FACTS

Then a 52-year-old who worked as an employee-driver for Petroleum Sales, Inc., as he had done for several years, Rudd drove into the refinery about 10 a.m. on the Wednesday before Thanksgiving in 1986, to load his tanker trailer with diesel fuel for delivery *404 to a Petroleum Sales customer. Atlas has four self-service loading docks for the fuel it refines and sells, one for gasoline and three for diesel. Tanker drivers report to Atlas personnel who give each driver a loading ticket assigning the driver to one of the loading docks where the driver loads the fuel without assistance of Atlas personnel.

The driver connects two hoses to his or her tanker, through one of which the fuel flows. The other hose, weighing about 45 lbs, is a vapor recovery hose designed and used to comply with environmental and safety regulations, which is also connected by the driver to the tanker. Once the amount of fuel specified on the loading ticket is loaded, the driver is required to disconnect the hoses, laying the vapor recovery hose on the concrete drive of the loading dock. The photograph below, introduced by Atlas, generally depicts the scene after Atlas caused the area to be cleaned sometime following Rudd's accident. One of the photographs of which Atlas complains is also identified and reproduced.

*405

*406 Atlas emphasizes its policy that instructs each tanker driver to wash away with a garden size hose attached to a water faucet at each dock the routine and expected diesel that spills or drains from the hoses at the loading dock. If the spill or accumulation of fuel is of great quantity the driver is instructed to report the spill by intercom available at the dock to an Atlas employee called a "loader rover." The rover who attends to spills that are so reported by a tanker driver is also instructed to wash down the docks at the end of each 8-hour shift.

The surface of the loading dock driveway is rough concrete. Drains are installed in each driveway to collect spilled fuels and the wash water. The record shows that the drains sometimes clog or stop up. No absorbent material such as "oil dry" is available at the docks for the drivers.

The last 8-hour shift change at Atlas occurred at 7:00 a.m., about three hours before Rudd arrived at the refinery on the date of the accident. Atlas presented evidence of its cleanup policies, but no record or testimony about when and by whom the loading rack was actually washed down. On the day of the accident, fifteen other tankers had loaded diesel at the dock where Rudd later loaded diesel fuel in his tanker. The record does not show what number, if any, of these drivers washed down the dock surface after loading his or her tanker.

Rudd had finished fueling his tanker and was taking the vapor recovery hose back to set it on the concrete sidewalk when his left foot slipped, causing him to fall on his buttocks and into the pipes that run from the diesel meter. Rudd's slip and fall caused injury to his back and legs. He did not report the accident to Atlas that day but he did inform a co-worker that day, Wednesday before Thanksgiving. On Friday, November 28, 1986, Rudd reported the accident to the proper authority, Ms. Dean Bennett, at Petroleum Sales, and sought medical treatment. Ms. Bennett's completed accident report incorrectly reflects that the accident was reported to Petroleum Sales on Wednesday, November 26, 1986.

On and after November 28, 1986, Rudd has been treated by several physicians, undergoing back surgery in February 1987. Dr. Warren Long, neurosurgeon, surgically removed herniated lumbar discs, doing laminectomies at two interspaces. Not able to return to work following the accident, Rudd has since received periodical medical treatment.

Rudd had back surgery in 1974, but had been employed as a tanker-driver for Petroleum Sales since 1979 without incident. His job required him to lift heavy equipment and drive 18-wheel trucks and tankers. He had successfully passed periodic employment physicals. During the period from 1979 to 1986, he did not receive any significant medical treatment for his back or miss any time from work.

TRIAL COURT'S FINDINGS

Trial occurred on February 18, 19, 20, 26 and 27, and March 3 and 4, 1992. In reasons for judgment on November 13, 1992, the trial court found that Rudd slipped on an accumulation of fuel, water and dirt at the Atlas loading dock, and that the Atlas dock presented a hazardous condition which was substantially caused by inadequate equipment and practices employed by Atlas. The court also found that Atlas did not rebut the presumption of fault by showing that it took reasonable care in protecting its customers from the foreseeable dangers and hazards. The court specifically mentioned that Atlas did not provide the drivers with oil dry or other absorbent material at its loading docks. The court awarded these damages to the plaintiffs:

Pain and Suffering ........................ $100,000.00
Lost Wages ................................ $116,370.00
Lost Future Wages/Earning Capacity ........ $110,097.00
Past Medical Expenses ($26,225.27)
& Rehabilitation Expenses
 ($3,812.68) .............................. $ 30,037.95
Mrs. Rudd's Loss of Consortium ............ $ 15,000.00
                                            ___________
TOTAL ..................................... $371,504.95

Atlas asserts the trial court erred in its determinations (1) that the plaintiffs established a hazardous condition existed at Atlas and that the safety and cleanup procedures at Atlas were not reasonably adequate; (2) that Rudd was not comparatively at fault; (3) that plaintiffs' photographs P11-P19 were admissible without any foundation; (4) that *407 $116,370.00 to Mr. Rudd for past lost wages and $110,097.00 was a proper award for lost future wages or loss of earning capacity; (5) that $100,000.00 was a proper award of general damages; and (6) that $15,000.00 to Mrs. Rudd was a proper award for her loss of consortium.

LIABILITY

Atlas's first challenge is that plaintiffs failed in their burden of establishing a hazardous condition under LRS 9:2800.6. Atlas further argues that it met its burden of proving that its inspection and cleanup procedures were reasonably adequate to relieve it of liability in any event under the circumstances of this record.

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Bluebook (online)
644 So. 2d 402, 1994 WL 532918, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rudd-v-atlas-processing-refinery-lactapp-1994.