Walker v. Union Oil Mill, Inc.

369 So. 2d 1043, 1979 La. LEXIS 6111
CourtSupreme Court of Louisiana
DecidedMarch 5, 1979
Docket62994
StatusPublished
Cited by89 cases

This text of 369 So. 2d 1043 (Walker v. Union Oil Mill, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Walker v. Union Oil Mill, Inc., 369 So. 2d 1043, 1979 La. LEXIS 6111 (La. 1979).

Opinion

369 So.2d 1043 (1979)

Nathan WALKER, Jr., et ux.
v.
UNION OIL MILL, INC., et al.

No. 62994.

Supreme Court of Louisiana.

March 5, 1979.
Rehearing Denied May 4, 1979.

*1044 R. L. Davis, Jr., Theus, Grisham, Davis & Leigh, Monroe, for defendants-respondents.

Jack F. Owens, Jr., Reeves & Owens, Jonesville, for plaintiffs-applicants.

HALL, Justice Ad Hoc.

The parents of a fifteen-year-old boy brought this wrongful death and survival action for the death of their son who became trapped and suffocated in a soybean storage tank owned and operated by the defendants. The district court rendered judgment for plaintiffs and all parties appealed; defendants as to liability and plaintiffs as to quantum. The Court of Appeal reversed, holding plaintiffs failed to prove *1045 negligence on the part of defendants and were not entitled to recover under the doctrines of res ipsa loquitur or attractive nuisance.[1] 360 So.2d 894 (La.App. 3rd Cir. 1978). We granted certiorari to review the court of appeal's conclusion that defendants were not guilty of actionable fault in leaving a fifteen-year-old boy alone and unsupervised on the premises of the storage facility. After review we conclude the judgment of the court of appeal is correct.

Nathan Walker, Jr., and Martha Walker, the decedent's parents, originally brought this action in 1959 against the owner of the storage tanks, Union Oil Mill, Inc., the storage facility operator, Victor Cross d/b/a United Elevator Company, and their liability insurer, Employers Liability Assurance Corporation, Ltd. The case was tried on the merits on June 17, 1960 and then taken under advisement by the trial court.

Martha Walker died in 1962 and on June 16, 1965 her heirs were substituted as parties plaintiff. Immediately thereafter all plaintiffs moved for summary judgment. On June 24, 1965 defendants filed an exception of unauthorized use of summary proceedings directed toward plaintiffs' motion for summary judgment and exceptions of no cause of action and prescription, attacking the substitution of Mrs. Walker's heirs as parties plaintiff. Although these exceptions were set for trial on three separate occasions, the record indicates that no action was taken on them. There was no further activity regarding this matter until September 22, 1977 when the court rendered judgment in favor of Nathan Walker, Jr. in the amount of $1000 and in favor of the heirs of Martha Walker in the amount of $25,000. The judge who presided at the trial had died and a successor judge decided the case.

The facts are as found by the Court of Appeal: [2]

"The tank in which young Nathaniel lost his life is part of a large grain elevator facility which is used for the storage and processing of soybeans and grain in Ferriday, Louisiana. This facility consists of five cylindrical tanks along with several structures and other supporting equipment. Four of these tanks are situated in a line adjacent to a road and are used mostly for the storage of soybeans. A cross conveyor apparatus traverses the tops of these tanks. A ladder affixed to the exterior of one of the tanks allows a person to reach the top of any of the four tanks.

"Tank number 1 in which Nathaniel met his death, measures 19 feet in diameter with a height of 40 feet, 4 inches. Access to the interior of this tank was provided by means of a manhole located in the top of the tank measuring 1 foot, 7 inches in diameter, and also by a small door located in the side of the tank approximately 12 feet above the ground. This side door opens inward, and thus can be opened only when the level of the beans in the tank falls below the level of the door. Otherwise, pressure from the inside makes this door impossible to open. However, entrance by way of the top manhole can be made at any time, regardless of the level of the beans in the tank. A wooden ladder extends from the manhole down into the tank, allowing a person to descend until he is standing on top of the beans. There are no locks to prevent unauthorized persons from entering the tank through either the side or top entrance. There are no warning signs present.

*1046 "Part of the storage process requires a continuing transfer of the beans from one storage tank to another. This is accomplished by allowing the beans to drain out of the tank by means of gravity flow through a six inch line where they are then conveyed elsewhere. However, when the level of the beans drops to a certain point, gravity is no longer sufficient and the beans will cease flowing on their own. A motor is then used to turn a screw in the center of the tank which pulls the remaining beans out. While being emptied, it is necessary for someone to stand by outside of the tank to clear the line should it become clogged with foreign matter.

"There is no danger to a person entering the tank while it contains beans, if the beans are not moving, i. e., if they are not being drained out of the tank. But it is dangerous to enter the tank if the beans are being transferred as they have a tendency to cave in.

"After the level of the beans drops below the side door, it often becomes necessary for someone to enter the tank to rake or knock some of the remaining beans loose with sticks. However, this is only done when the bean level is near the bottom of the tank.

"Nathaniel's older brother, James Henry Lewis, was employed at the grain elevator. The record shows that Nathaniel hung around the grain elevator and sometimes assisted his brother with some of the cleanup work. At trial, Mr. Cross denied that Nathaniel was an employee or that he had ever observed him in the tanks. There is some evidence to the effect that Mr. Cross had on occasion instructed James Henry Lewis to give Nathaniel some money out of his paycheck. This was denied by Mr. Cross, who further testified that Nathaniel had been advised to leave the premises quite often. Nathaniel had been in the tanks with his brother when the latter's duties required him to enter them to rake out the remaining beans when they reached a low level. James Henry Lewis testified that Nathaniel was familiar with the premises and knew how the entire operation worked.

"The record indicates that on the morning of December 18, 1958, tank number 1 was approximately ¾ full. The beans were being transferred out of the tank by means of the gravity flow process described above. James Henry Lewis was on duty that morning. He testified that Nathaniel was there that morning to assist him with some cleaning under the scales.

"Victor Cross' brother, Howard, sometimes assisted in the operation of the grain elevator. He testified that he stopped by soon after 9:00 A.M. He advised Nathaniel to go home and then left the premises.

"Nathaniel left sometime before noon. After a break for lunch, both James Henry Lewis and Nathaniel returned to the grain elevator at about 1:00 P.M. James Henry Lewis testified that he left the premises at about 2:00 P.M. to visit with a cousin. When he left, Nathaniel was around the base of the tanks. When he returned about fifteen or twenty minutes later, he was no longer there. He did not search for Nathaniel, as he thought he had gone home. The next day, Nathaniel's body was recovered from the tank. At that time, the tank was approximately ½ full.

". . . There is no evidence in the record tending to show that the tank in question or its appurtenances were in any way defective in design or construction. We cannot say that a bean storage tank is a dangerous instrumentality per se. . . .

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Bluebook (online)
369 So. 2d 1043, 1979 La. LEXIS 6111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-v-union-oil-mill-inc-la-1979.