Schouest v. Stipelcovich

490 So. 2d 294
CourtLouisiana Court of Appeal
DecidedMay 12, 1986
Docket85-CA-346
StatusPublished
Cited by6 cases

This text of 490 So. 2d 294 (Schouest v. Stipelcovich) 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
Schouest v. Stipelcovich, 490 So. 2d 294 (La. Ct. App. 1986).

Opinion

490 So.2d 294 (1986)

Herbert Joseph SCHOUEST, Sr.
v.
Bruce STIPELCOVICH, Herman Quick, Larry D. Williams, and William Mabry and the ABC Insurance Company.

No. 85-CA-346.

Court of Appeal of Louisiana, Fifth Circuit.

May 12, 1986.
Rehearing Denied July 17, 1986.

*295 James L. Donovan, Donovan & Lawler, Metairie, for Herman Joseph Schouest, Jr., plaintiff-appellant.

Claude D. Vasser, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for Bruce Stipelcovich, Herman Quick, Larry Williams, and William Mabry, defendants-appellees.

Before BOUTALL, CURRAULT and GAUDIN, JJ.

BOUTALL, Judge.

This is a tort suit against executive officers by a worker for damages resulting from an occupational disease. From a judgment in favor of the defendants, the plaintiff has appealed.

Herbert J. Schouest, a painter and sandblaster, sued four management employees of his employer, J. Ray McDermott & Co., Inc., alleging their negligence caused him to contract silicosis and further aggravated the disease. Schouest is a 48 year old man with a third grade education who is virtually illiterate. He first worked as a sandblaster four years for Ike Haggard, a small company in Harvey that was bought by McDermott in 1969. He was then employed by McDermott in the fabrication division as a painter and sandblaster until March, 1979, when he stopped working. He was carried on "personal illness leave" until he was terminated upon filing suit in August 1979. McDermott began paying and has continued to pay worker's compensation benefits and medical expenses.

The petition alleges that Schouest contracted silicosis in 1969 and that Bruce Stipelcovich, general manager, Herman Quick, general superintendent, Larry D. Williams, safety manager, and William Mabry, yard section superintendent, were negligent in the following respects: failure to provide a safe place to work, failure to furnish proper protective equipment, failure to promulgate safety rules and regulations, failure to inform the plaintiff that he had silicosis as soon as they learned of the condition and permitting him to work in free silica after receiving the diagnosis.

The trial court held for the defendants and stated that 1) the plaintiff had failed to prove, by a preponderance of the evidence, that the named defendants had failed to provide a safe place to work; 2) Schouest had probably contracted the disease before being employed by McDermott; 3) Schouest was informed by a physician in 1974 that he had silicosis and should not return to a silica environment; and 4) as the damage was done as of 1974, any negligence by the defendants after that time was not a cause in fact of the disability.

Issues raised by the appellant are 1) whether the named defendants owed the plaintiff a duty to provide a safe place to work, 2) whether in fact they failed to provide a safe place to work, and 3) whether the defendants' failure to monitor properly the plaintiff's medical condition was a cause of his disability and damages.

Silicosis is a chronic disease that results from inhaling dust with a high concentration of silica, characterized by fibrosis in the lungs, and eventually leading to disability. Susceptibility to the condition varies among individuals. The court in Faciane v. Southern Shipbuilding Corp., 446 So.2d 770 (La.App. 4th Cir.1984), provided the following information as to the progression of silicosis, at 772:

"The condition is progressive in nature in the sense that once the disease process begins, it continues to worsen even when the victim is removed from exposure to silica particles. There is no known cure for this disease. Those suffering from silicosis not only experience decreased pulmonary function, but are more vulnerable to diseases of any type, due to lowered body resistance."

The testimony indicates that Schouest's condition came to the attention of Larry *296 Williams, the new safety manager for the fabrication division, in mid-1978, when the first aid station at the plant reported Schouest had had frequent complaints of colds, chest problems, and sinus problems. He continued to monitor Schouest's first aid record and requested his 1977 x-ray report from the clinic which had for many years performed pre-employment physical examinations of all McDermott employees and annual x-rays of the sandblasters. Noting that the August 10, 1977 x-ray showed "nodular infiltrative changes both lungs," he became concerned about the plaintiff's working in the silica environment. On November 20, 1978 chest x-rays of Schouest showed, "Pulmonary fibrosis. No increase. Advise pulmonary workup and advice re future occupation." Pulmonary studies were performed by Dr. Thomas Grimstead on referral from Dr. Sam Logan, who had followed Schouest off and on for a period of years at the Logan-Nelson Clinic, formerly the West Bank Clinic. Dr. Grimstead's letter to Williams dated January 9, 1979, stated that the findings were compatible with silicosis and he recommended that Schouest, along with two other men examined, be removed from sandblasting.

Although it is impossible to pinpoint the time when Schouest contracted the disease, medical reports accepted into evidence clearly show abnormal findings on x-rays as early as August 22, 1970, when "early fibrosis" was reported. A letter from Dr. Sam Logan to Jim Carroll (chief of safety), dated March 5, 1974 states the following, regarding Herbert Schouest:

"On review of a chest X-ray taken March 5, 1974 on the above, I find evidence of pulmonary fibrosis. I have re-examined his annual X-rays back to 1969. The condition began to be obvious in 1971, and it has not changed in character or degree very much since then. Todays film showed only a small increase since 1971.
"However, I recommend he be removed from exposure to dust permanently. His breathing capacity should be checked annually with the spirometer, and he should have annual chest x-rays as long as he lives."

Thereafter all the x-ray reports except one in 1975 contained a warning against dust. Clearly, the silicosis condition developed over a period of years and the company was fully informed in 1974.

Duty owed to plaintiff

The employer owes a general duty of reasonable care to his employees, including suitable physical facilities, safety appliances, and instruction as to safe practices and occupational dangers. Malone & Johnson, Louisiana Workers' Compensation Law and Practice, v. 13, section 2.

Although the workers' compensation statute has provided from its inception that its benefits are an employee's exclusive remedy against his employer, prior to October, 1976 tort suits were permitted against executive officers where their ordinary negligence was alleged. After the enactment of Acts 1976, No. 147, Sec. 1, executive officers could be sued by injured workers only for an alleged intentional tort. Accordingly, in this case, two standards for liability are applicable.

The appellant's position is that all the defendants were on the site frequently if not daily, and had responsibility to stop any unsafe practices and, if they delegated responsibility, to see that the subordinates fulfilled their duties. The appellees contend that Stipelcovich, Quick, and Mabry had no personal duty toward Schouest. They further note that Larry Williams, who was in the safety department only a short time during Schouest's work period, took positive steps regarding management of his illness.

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560 So. 2d 573 (Louisiana Court of Appeal, 1990)
Peacock's, Inc. v. Shreveport Alarm Co.
510 So. 2d 387 (Louisiana Court of Appeal, 1987)
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Schouest v. Stipelcovich
495 So. 2d 304 (Supreme Court of Louisiana, 1986)

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490 So. 2d 294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schouest-v-stipelcovich-lactapp-1986.