White v. CF Industries, Inc.

411 So. 2d 511
CourtLouisiana Court of Appeal
DecidedMarch 2, 1982
Docket14533
StatusPublished
Cited by8 cases

This text of 411 So. 2d 511 (White v. CF Industries, Inc.) 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
White v. CF Industries, Inc., 411 So. 2d 511 (La. Ct. App. 1982).

Opinion

411 So.2d 511 (1982)

Franklin L. WHITE
v.
C F INDUSTRIES, INC., et al.

No. 14533.

Court of Appeal of Louisiana, First Circuit.

March 2, 1982.
Writ Denied April 21, 1982.

*512 Walton J. Barnes, S. Dwayne Broussard, Baton Rouge, for plaintiff & appellant.

Gerald L. Walter, Jr., Vincent P. Fornias, Baton Rouge, for defendants & appellees.

Before ELLIS, LOTTINGER and PONDER, JJ.

LOTTINGER, Judge.

This is an "executive officer" suit brought by Franklin L. White against four officers of White's statutory employer, C F Industries, Inc. The plaintiff was injured when some part of a brick "tunnel" within a furnace collapsed beneath him, causing his fall. The "tunnel" was used by plaintiff and his co-employees as a scaffold for cleaning tall furnace pipes. The defendants herein, Miller Dial, H. M. Epps, D. J. Esnault and David Miller were respectively the general manager, maintenance manager, and maintenance engineers at the C F Industries plant near Donaldsonville, Louisiana, at the time of the accident. The suit against these defendants alleged that the defendants were delegated by C F Industries the duty of providing plaintiff with a safe place to work, and that this duty was breached by the defendants' condoning the use of plywood-overlaid brick "tunnels" as scaffolding for cleaning the furnace.[1] From adverse judgment in favor of the four defendants, plaintiff has appealed.[2]

THE FACTS

The plaintiff was injured on February 7, 1974 at the C F Industries' plant near Donaldsonville, Louisiana. He was 37 years old at the time of the accident and was employed by Petro Corporation, a division of Barnard & Burk. Petro contracted with C F to clean a furnace during a "turnaround," *513 i.e., a period when the plant was shut down for maintenance. C F was responsible for supplying Petro employees with whatever scaffolding was necessary to complete the job.

The plaintiff was cleaning furnace pipes with a circular brush at the time of the accident. This task entailed standing atop brick "tunnels" which ran through the furnace in parallel rows. Each "tunnel" had two side walls composed of bricks and held together with mortar. The bricks in the side walls were of a special type used in furnaces but were an ordinary size. Riding atop the two side walls and spanning the gap between were larger blocks of a similar but distinguishable material. These blocks composed the roof of the "tunnels." Over the roof blocks were placed sheets of three-fourths inch plywood. All Petro employees on the job were warned repeatedly to walk only on the plywood sheets and not to walk directly on the concrete blocks. This warning was given because the blocks tended to become brittle due to the high heat of the furnace during operations. The plywood sheets were used to help evenly distribute the weight of the workers over the "tunnel" and prevent a block from collapsing. For the same reason, Petro employees were instructed to avoid walking in the center of the plywood sheets and to stay near the sides whenever possible.

At the time of the accident, plaintiff was standing atop a brick "tunnel" and attaching a circular brush to a nearby furnace pipe when he fell suddenly, landing on the furnace floor some five or six feet below. Conflicting testimony was adduced at trial as to whether plaintiff stood on the plywood as instructed or stood directly on the concrete roof blocks at the time of his fall. As a result of the fall, plaintiff injured his back, necessitating hospitalization. He was later diagnosed as having a herniated lumbar disc and eventually underwent a laminectomy.

To plaintiff's suit, defendants answered with a general denial, and specifically pleaded the affirmative defenses of contributory negligence and assumption of risk. By the time of trial, the only defendants remaining were the managers and engineers of C F Industries.[3] After trial on the merits, judgment was rendered in favor of the four remaining defendants, and plaintiff's suit was dismissed. No written reasons were assigned by the trial judge. The plaintiff timely perfected a devolutive appeal to this court.

SPECIFICATIONS OF ERROR

Plaintiff-appellant contends the trial judge erred in:

1. finding that C F Industries, Inc., owed no duty to the plaintiff, the breach of which caused his damages;
2. finding that the duty owed by C F Industries, Inc., to the plaintiff was not delegated to the individual defendants;
3. finding that the individual defendants did not breach their duty to the plaintiff through their personal fault;
4. failing to apply the doctrine of res ipsa loquitur under the exceptional facts of this case; and
5. failing to award damages to the plaintiff in accordance with the evidence adduced at trial.

The criteria for imposing individual tort liability on a co-employee, agent, or officer of a plaintiff's employer or principal were set forth in Canter v. Koehring Company, 283 So.2d 716 at 721 (La.1973):

"1. The principal or employer owes a duty of care to the third person (which in this sense includes a co-employee), breach of which has caused the damage for which recovery is sought.
"2. This duty is delegated by the principal or employer to the defendant.
"3. The defendant officer, agent, or employee has breached this duty through personal (as contrasted with technical or vicarious) fault. The breach occurs when the defendant has failed to discharge the obligation with the degree of care required by ordinary prudence under the *514 same or similar circumstances-whether such failure be due to malfeasance, misfeasance, or nonfeasance, including when the failure results from not acting upon actual knowledge of the risk to others as well as from a lack of ordinary care in discovering and avoiding such risk of harm which has resulted from the breach of the duty.
"4. With regard to the personal (as contrasted with technical or vicarious) fault, personal liability cannot be imposed upon the officer, agent, or employee simply because of his general administrative responsibility for performance of some function of the employment. He must have a personal duty towards the injured plaintiff, breach of which specifically has caused the plaintiff's damages. If the defendant's general responsibility has been delegated with due care to some responsible subordinate or subordinates, he is not himself personally at fault and liable for the negligent performance of this responsibility unless he personally knows or personally should know of its non-performance or mal-performance and has nevertheless failed to cure the risk of harm."

Where the trial judge does not assign oral or written reasons for judgment, the reviewing court is required to review the record in its entirety to determine whether or not the result reached by the trier of fact was in itself manifestly erroneous. Aetna Casualty and Surety Company v. Continental Insurance Company, 308 So.2d 489, 491 (La.App. 1st Cir. 1975).

I

Plaintiff-appellant argues that the first criterion of Canter "executive officer" liability was met in that C F Industries owed plaintiff a statutory duty to furnish him a safe working place, under La.R.S. 23:13.[4]

The defendants contend that no duty was owed by C F to White under La.R.S.

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