Schouest v. Stipelcovich

560 So. 2d 573, 1990 La. App. LEXIS 968, 1990 WL 48743
CourtLouisiana Court of Appeal
DecidedApril 11, 1990
DocketNo. 89-CA-768
StatusPublished
Cited by1 cases

This text of 560 So. 2d 573 (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, 560 So. 2d 573, 1990 La. App. LEXIS 968, 1990 WL 48743 (La. Ct. App. 1990).

Opinion

KLIEBERT, Judge.

In December 1979 James Schouest, plaintiff, sued four supervisors of his former employer, J. Ray McDermott, in tort alleging their negligence and/or intentional negligent actions caused him to contract silicosis and other complications resulting from silicosis. Plaintiff was a sandblaster/painter almost exclusively for J. Ray McDer-mott from 1964 to 1979. Named defendants are the following supervisory employees of McDermott: Bruce Stipelcovich, Division Manager; Herman Quick, General Superintendent; Fred Mabry, Fabrication Superintendent, and Larry Williams, Safety Director. J. Ray McDermott intervened for compensation and medical benefits paid or payable to plaintiff. The trial court dismissed plaintiff’s tort suit. Plaintiff and McDermott1 perfected this devolutive appeal.

In his reasons for judgment the trial judge said that plaintiff alleged the defendants were intentionally negligent as concerns his safety: (1) by supplying inadequate safety hoods for sandblasting work such as he was doing, and (2) for failing to notify him timely of his lung condition, [575]*575to-wit, silicosis. He then found defendants provided up-to-date, state-of-the-art equipment and, as such, did not commit any intentional tort. Further, he found that at best the delay in notifying plaintiff of his condition was three months and therefore immaterial. The trial judge also concluded from the testimony of the physicians “that there is serious doubt as to any disability caused by the silicosis itself.”

On appeal, plaintiff contends the trial court erred in failing to apply ordinary negligence standards to the acts of defendants occurring prior to 1976 and in failing to find the same acts rose to that of an intentional tort after 1976. Further, plaintiff contends the court erred in ruling he did not present sufficient evidence to prove he had in fact contracted silicosis.2 We are asked to reverse the trial court’s finding of non-liability and to assess a reasonable amount of damages for plaintiff as well as penalties and attorney fees against J. Ray McDermott. Although we agree the standard for determining liability before 1976 is ordinary negligence and after 1976 intentional acts of negligence, for the reasons which follow we affirm the trial court.

Prior to 1976, the worker’s compensation statute, LSA-R.S. 23:1032, permitted tort suits by employees against executive officers of their employers even where only ordinary negligence was alleged. After 1976 amendments to section 1032, executive officers could only be sued by fellow injured employees for intentional acts of negligence. Therefore, two standards for liability are applicable when attempting to hold an executive officer liable for injuries to a worker; i.e., ordinary negligence prior to 1976 and intentional acts of negligence after 1976. Herbert Schouest v. Stipelcovich, et al.,3 490 So.2d 294 (La.App. 5th Cir.1986), writ denied, 495 So.2d 304 (La.1986).

In the case before us, Larry Williams and Bruce Stipelcovich assumed their supervisory duties in 1976 (at the same time as the effective date of the amendment of section 1032) and 1977 respectively. Therefore, any liability attributable to them must be for an intentional act of negligence. Herman Quick and William Mabry were supervisors prior to 1976 and therefore may be liable to plaintiff for negligent acts of ommission or commission occurring during that time. After 1976, any of the four defendants may be held liable only if they either desired to bring about the physical result of their action or believed the results were substantially certain to follow from what they did. Bazley v. Tortorich, 397 So.2d 475 (La.1981). Further, because Stipelcovich delegated safety functions to competent subordinates, he had no personal duty to the workers and is absolved of liability. See Schouest v. Stipelcovich, supra.

Prior to 1976, of the four defendants, only Quick and Mabry were supervisors of plaintiff. Each was in the yard daily and had sufficient personal contact and responsibility toward plaintiff to be held liable if they negligently failed to provide plaintiff a work place and conditions that were reasonably safe considering the nature of the work. See Esco v. Smith, 468 So.2d 1169 (La.1985); Canter v. Koehring, 283 So.2d 716 (La.1973).

Plaintiff is 46 years old and illiterate, except for the ability to sign his name. From 1964 until January 1979 plaintiff had worked as a sandblaster/painter, except that between December 1970 and February 1972, for approximately a year, he worked as a tack welder for Avondale. Initially, he sandblasted for Ike Haggard Company until Haggard was purchased by J. Ray McDermott in 1967. He worked for McDermott from 1967 until December 1970 when his employment was terminated. He was reemployed by McDermott in February 1972 and continued working for McDer-mott until late January 1979. (There is [576]*576some dispute as to whether he stopped sandblasting in November 1978 or in January 1979).

Initially, canvas hoods were used to protect workers while sandblasting. Subsequently, air-fed hoods were used, but there is some dispute here as to whether plaintiff was furnished the air-fed hoods just before or just after McDermott purchased Haggard. There is some indication McDermott recommended using respirators under the hoods.

With either hood there was some infiltration. To minimize the amount of infiltration, workers used Spalonze (a waterproofing agent) to patch leaks, and duct tape to protect the permanent lens of the hoods by holding an extra lens over the permanent lens, in lieu of a curved lens suggested by suppliers. There is also some testimony indicating that duct tape was also used to patch leaks in the hoods.

Unfortunately the hoods were not perfect, allowing sand to infiltrate the hood and ultimately into the workers’ lungs. Although not originally considered so, sandblasting is now known to be inherently dangerous. Inhaling dust with high concentrations of silica can lead to disability due to fibrous in the lungs.

At the time of trial, based on a previous finding of partial disability due to his inability to continue sandblasting, [Schouest v. McDermott, 411 So.2d 1042 (La.1982)], plaintiff was receiving monthly workman’s compensation benefits. To that time weekly compensation benefits paid totaled $70,-429.70. Additionally, medical expenses of $10,641.58 had been paid on plaintiff’s behalf.

Here, as in the trial court, plaintiff urges liability of the defendants' for two reasons: (1) failure to furnish a safe place to work, and (2) negligently monitoring his medical condition and failure to remove him from a silica environment once they knew of his condition.

The evidence shows once the inherent danger of sandblasting was known, McDer-mott, through its safety department, undertook the monitoring of the worker’s health conditions by periodic medical examinations at the Westside Surgical Clinic (subsequently Nelson and Logan Clinic).

From the time of his pre-employment physical in 1964 through his last medical examination before plaintiff's employment was terminated in December 1970, his chest x-ray reports were normal. Upon his reemployment in February 1972, a medical examination and safety briefing were done. The pre-employment medical report stated plaintiff’s chest x-ray was normal and contained no work restrictions. However, by letter dated March 24, 1972, Dr.

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Related

Schouest v. Stipelcovich
566 So. 2d 987 (Supreme Court of Louisiana, 1990)

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Bluebook (online)
560 So. 2d 573, 1990 La. App. LEXIS 968, 1990 WL 48743, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schouest-v-stipelcovich-lactapp-1990.