Smith v. Shell Oil Co.

564 So. 2d 712, 1990 La. App. LEXIS 1588, 1990 WL 79915
CourtLouisiana Court of Appeal
DecidedJune 14, 1990
DocketNos. 89-CA-1835, 89-CA-2242
StatusPublished

This text of 564 So. 2d 712 (Smith v. Shell Oil Co.) 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
Smith v. Shell Oil Co., 564 So. 2d 712, 1990 La. App. LEXIS 1588, 1990 WL 79915 (La. Ct. App. 1990).

Opinion

BYRNES, Judge.

In this consolidated action for damages resulting from the electrocution of the plaintiffs, Ray Smith and Anthony Papania, an appeal is lodged which seeks to set aside two summary judgments which dismissed the general contractor, three sub-contractors and the alleged supplier of electricity to the work site where the plaintiffs were injured. We affirm the judgments of the district court.

The facts as revealed by the record are as follows:

Shell Oil Company (“Shell”) owns the land and facilities located on the grounds of its Jefferson Highway plant where the plaintiffs were injured. Over one year pri- or to this accident Shell had contracted for the construction of a new office/laboratory. In furtherance of the project, a design/build contract was entered with the prime contractor, Carl E. Woodward Inc. (“Woodward”) for the design and construction of the electrical service to the new facility. This contract resulted because Louisiana Power and Light (“LP & L”) refused to provide Shell with two service entrances to its facility. Woodward entered into a subcontract with Northside Electric, Inc. (“Northside”) for the electrical work dictated by the contract between the owner (Shell) and the prime contractor (Woodward). Thereafter, Northside entered into two subcontracts. The design of the electrical lines was subcontracted to Lucien T. Vivien, Jr. & Assoc., Inc-. (“Vi-vien”) and the erection of the electrical lines was subcontracted to Highlines Construction Co. (“Highlines”).

It was decided that the service lines to the new facility were to be constructed on 70 foot poles and were to run from the rear of the property along the property line where the LP & L service lines entered the Shell plant. The lines were to run to a point adjacent to Jefferson Highway and near the new building where the lines went underground and entered the new building. The power lines were thereafter constructed and tied into the newly constructed office/laboratory facility. The building and new electrical service were placed in operation by the end of 1985.

In May 1986 Shell decided to have the grease tank cleaned which is involved in this litigation. The tank had been constructed in 1954 and was never before cleaned. An employee from Shell arranged for the cleaning but failed to notify Shell’s engineering department of this activity. On the date in question the power lines servicing the office/laboratory facility were not de-energized. On May 14, 1986 [714]*714Ray Smith and Anthony Papania who were employed by Be-Neat Tank Cleaning Company, were sent to the Shell plant to clean the tall grease tank which was located at the plant on Jefferson Highway. The pair of men were using tall aluminum poles to perform their cleaning duties. While so engaged the poles came in close proximity with the nearby electrical wires causing an electrical arc to the aluminum poles. A surge of electricity went through the plaintiffs’ bodies resulting in electrical burns.

The plaintiffs filed an action in damages against Shell as the alleged owner.of the electric lines and against LP & L as the alleged builder of the lines.

The action against Shell alleged that this defendant was liable for the plaintiffs injuries under theories of strict liability and negligence. Smith and Papania alleged in particular that Shell failed to repair and maintain the electrical lines. The plaintiffs sought recovery against LP & L on the basis that this defendant constructed the electric lines; placed the allegedly ultra-hazardous lines in the near proximity of the tank; marketed and manufactured a defective device; and failed to warn of the defects.

Thereafter, Smith and Papania amended their suits to name as defendants, the prime contractor and the various subcontractors who participated in the design/build contract for the office/laboratory facility located at the Shell plant.

The plaintiffs contend that the various contractors were negligent in the design and erection of the electric power lines. In particular, the plaintiffs argue that since the lines were unreasonably dangerous that it was negligent not to design and/or build the lines so that they were placed underground and/or entirely offset outside the Shell plant. Smith and Papania also alleged that the power lines were designed and erected too close to the grease tank where the plaintiffs were working.

The defendants filed answers and alleged specific defenses.

In response to the suit LP & L filed an exception of vagueness. Woodward, the general contractor, alleged that the plaintiffs injuries were due solely to the fault or negligence of others and also due to the plaintiffs’ negligence in failing to carefully and prudently perform the duties assigned by their employer. Woodward also third partied Northside and, on the basis of the contract existing between these parties, Woodward sought indemnity and to be held harmless. Northside filed an Answer of denial and third partied Shell, Vivien and Highlines for indemnity. They alleged that these parties determined the design and construction of the electrical project.

The two subcontractors who had contracted with Northside: Vivien and High-lines, also filed answers and defenses to the plaintiffs’ actions.

Vivien alleged that if negligence existed it was the negligence of others. They further alleged that the proximate cause of the accident was the plaintiffs’ failure to see what they should have seen and heed the same. Vivien alleged the plaintiffs’ assumption of risk and in the alternative, comparative negligence. They also contended that, in the alternative, the accident was the result of negligence by Shell, LP & L, Woodward, Northside and Highlines.

Highlines answered and alleged that they were not negligent. In the alternative, they pleaded the comparative negligence of the plaintiffs. Highlines also alleged that plaintiffs’ injuries were the result of risks, dangers and hazards which were plainly observable, open, and obvious at the time of their injuries, thus relieving this defendant of liability.

An intervention was filed by Liberty Mutual Insurance Company for reimbursement of compensation benefits paid to the plaintiffs.

In 1988 Shell settled its suit with the plaintiffs. Ray Smith received $190,000 in settlement and his compensation carrier was paid $10,000. Anthony Papania received the sum of $43,934 and his compensation carrier received $6,066.00.

In April, 1989 the representatives of the named defendants were deposed. Based upon this discovery the remaining defen[715]*715dants sought summary judgment on the issue of their liability.

The trial court granted the motions for summary judgment filed by the prime contractor and three subcontractors. The court also granted a motion for summary judgment filed by LP & L. From these summary judgments granted in favor of the defendants, the plaintiffs and their worker’s compensation carrier appeal.

The mover is entitled to a summary judgment in its favor if the pleadings, depositions, answers to interrogatories and admissions of fact show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La.C.C.P. Art. 966. Industrial Sand and Abrasives, Inc. v. Louisville & Nashville Railroad Co., 427 So.2d 1152 (La.1988).

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Bluebook (online)
564 So. 2d 712, 1990 La. App. LEXIS 1588, 1990 WL 79915, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-shell-oil-co-lactapp-1990.