Sloan v. Dailey

664 So. 2d 792, 1995 WL 714799
CourtLouisiana Court of Appeal
DecidedDecember 6, 1995
Docket95-906
StatusPublished
Cited by4 cases

This text of 664 So. 2d 792 (Sloan v. Dailey) 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
Sloan v. Dailey, 664 So. 2d 792, 1995 WL 714799 (La. Ct. App. 1995).

Opinion

664 So.2d 792 (1995)

Russell SLOAN, Plaintiff-Appellee,
v.
Trennion T. DAILEY, Town of Vinton, Safety Council of Southwest Louisiana & Cigna Companies, Defendants-Appellants.

No. 95-906.

Court of Appeal of Louisiana, Third Circuit.

December 6, 1995.

*795 Thomas E. Townsley, Lake Charles, for Russell Sloan.

Dennis R. Sumpter, Sulphur, for Trennion T. Dailey, et al.

Lester Allan Robertson, for Safety Council of S.W. Louisiana.

Before: DOUCET, C.J., and COOKS and PETERS, JJ.

DOUCET, Chief Judge.

The defendants, Trennion T. Dailey and the Town of Vinton (the town), appeal the trial court's judgment finding them at fault in the injury to the plaintiff, Russell Sloan.

The Safety Council of Southwest Louisiana assigned Sloan to do community service work for the Town of Vinton's Electrical Department, in connection with a drunk driving offense. Sloan is an inside electrician. The town supervisor, Raymond Guillory, assigned Sloan to work with Trennion Dailey, a regular electrical department employee, installing utility poles. On September 8, 1992, the two men loaded two utility poles on a winch truck. Dailey secured the poles to the truck by tying the winch line around them. Dailey drove to the appropriate location with Sloan in the passenger seat. They unloaded the first pole and, after so doing, failed to secure the winch line around the remaining pole. There is conflict as to what happened next. Sloan states that he was in the back of the truck throughout the unloading of the first pole. He alleges that Dailey told him to stay there while they drove about 100 feet to the next location. Dailey, however, testified that Sloan was on the ground guiding the pole and got onto the truck to ride to the next site, without his (Dailey's) knowledge. He admits, however, that he did not tell Sloan not to get on the truck. They reached the next site without incident. However, while Dailey was trying to get the truck off the road, the remaining pole rolled onto Sloan. He tried to stop the log with his left hand. The hand bent backwards, sustaining a dorsi-flexion injury.

Sloan brought this suit against Dailey, the Town of Vinton, individually and as the employer *796 of Dailey, the Safety Council of Southwest Louisiana and its insurer, Cigna Companies. After a trial on the merits, the trial judge rendered judgment allocating fault 20% to Sloan, 50% to Dailey and 30% to the town. He gave oral reasons for his finding. The judge took the quantum of damages under advisement. Ultimately, he awarded damages as follows:

(a) Past, Present and Future
Pain, Suffering, Disability
and Mental Anguish              $15,000.00
(b) Loss of Enjoyment of Life    15,000.00
(c) Medical Expenses              2,916.32
(d) Lost Earning Capacity        10,000.00

The trial judge issued written reasons for the award of damages.

The town and Dailey appeal the finding of liability, the apportionment of fault and the award of damages. Sloan has answered the appeal arguing that no fault should have been assessed to him and that the award of general damages was insufficient.

LIABILITY OF THE DEFENDANTS

The defendants argue that they were not under a duty to protect Sloan from the risk of injury which he encountered. They argue that Sloan's injuries were caused by his own negligence. The Town's duty must be analyzed separate and apart from any knowledge the plaintiff had or should have had of the danger he was encountering. Socorro v. City of New Orleans, 579 So.2d 931 (La. 1991).

To determine whether the defendants are liable, we will apply a duty-risk analysis, by asking:

1) Was the act or omission complained of a cause-in-fact of the harm?

2) Did the defendant owe a duty to protect this plaintiff from this type of harm arising in this manner?

3) Did the defendant violate the duty?

Therefore, we must consider whether the conduct of the defendants was a cause-in-fact of the injury to Sloan.

An act of omission is considered to be a cause-in-fact of harm to another if it was a "substantial factor" in bringing about the accident. Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962); Pierre v. Allstate Ins. Co., 257 La. 471, 242 So.2d 821 (1970); Lejeune [LeJeune] v. Allstate Ins. Co., 365 So.2d 471 (La.1978). Restatement of Torts 2, Sections 431-33 (1965). As noted in the restatement, factors which may be considered in determining whether the actor's negligence is a substantial factor include "whether the actor's conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm ..."
The "substantial factor" test is akin to the `but for' test (i.e. the accident would not have happened but for the defendant's negligence), except that where more than one party's negligence would have caused the accident absent the other party's negligence, Dixie, supra, and Lejeune [LeJeune], supra, hold both to be causative.
As succinctly stated by the Louisiana Supreme Court in Lejeune [LeJeune], supra:
"As Prosser [on Torts, Section 41 at pp. 237-38 (4th Ed.1971)] notes, the `but for' test (that the accident would not have happened but for the defendant's negligence), while it explains the greater number of cases, does not serve as an adequate test for the present situation: `If two causes occur to bring about an event, and either one of them, operating alone, would have been sufficient to cause the identical result, some other test is needed ...' In such cases it is quite clear that each cause has in fact played so important a role in producing the result that responsibility should be imposed upon it; and it is equally clear that neither can be absolved from that responsibility upon the ground that the identical harm would have occurred without it, or there would be no liability at all. Id., p. 239"

Trahan v. State, Department of Transportation and Development, 536 So.2d 1269, 1272 (La.App. 3rd Cir.1988), writ denied, 541 So.2d 854 (La.1989).

The trial judge found that, Sloan was negligent in placing himself in the path of the pole, which he must have known was unsecured and could roll. However, he found that both the town and Dailey were also *797 negligent. He found that the town was negligent in failing to provide adequate training and safety policies. He further found that Dailey was negligent in failing to look out for the safety of his passenger. He found that had Dailey been looking out for the safety of Sloan, he would have made himself aware of Sloan's position. Had he done so he could have either told Sloan to get out of the truck or secured the log. The record reflects that Dailey backed the truck over an uneven surface while carrying an unsecured pole. According to Sloan's testimony, Dailey backed the truck into a ditch. The defendants argue that we should look no further than the negligence of Sloan. Our review of the evidence convinces us that the combined negligence of Sloan, the town and Dailey caused the accident. The negligence of each was a substantial factor in the accident. Having so determined, we must next decide whether the defendants owed a duty which encompassed the risk to which the plaintiff was exposed in this case.

The trial judge, in analyzing the liability of the town, found that it has a duty to community service workers. We agree.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Ashmore v. Hilton
834 So. 2d 1131 (Louisiana Court of Appeal, 2002)
Harris v. United Agents Insurance Co. of Louisiana
784 So. 2d 132 (Louisiana Court of Appeal, 2001)
Graves v. Page
688 So. 2d 1061 (Louisiana Court of Appeal, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
664 So. 2d 792, 1995 WL 714799, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sloan-v-dailey-lactapp-1995.