Whittle v. MILLER ELECTRICAL MFG. CO.

507 So. 2d 266, 1987 La. App. LEXIS 9550
CourtLouisiana Court of Appeal
DecidedMay 13, 1987
Docket86-562
StatusPublished
Cited by7 cases

This text of 507 So. 2d 266 (Whittle v. MILLER ELECTRICAL MFG. 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
Whittle v. MILLER ELECTRICAL MFG. CO., 507 So. 2d 266, 1987 La. App. LEXIS 9550 (La. Ct. App. 1987).

Opinion

507 So.2d 266 (1987)

Wade Anthony WHITTLE, Plaintiff-Appellee,
v.
MILLER ELECTRICAL MANUFACTURING COMPANY, Defendant-Appellant.

No. 86-562.

Court of Appeal of Louisiana, Third Circuit.

May 13, 1987.
Rehearing Denied June 10, 1987.

*267 Franklin, Moore and Walsh, Albert Dale Clary, Baton Rouge, for defendant-appellant.

Drew Ranier, Lake Charles, for plaintiff-appellee.

Before GUIDRY and FORET, JJ., and CULPEPPER, J. Pro Tem.[*]

GUIDRY, Judge.

This suit for personal injuries arose out of an accident which occurred on July 14, 1980, at the Louisiana Natural Gas Plant (LNG) in Lake Charles, Calcasieu Parish, Louisiana. At the time of the accident, plaintiff, Wade Anthony Whittle, was working as a "grinder" for Pittsburgh Des Moines Steel Company in the construction of several large tanks for LNG. At the time of the accident, Whittle was in a kneeling position crawling along a stiffener ring grinding welds to make them smooth.[1] As Whittle crawled along the stiffener ring, he encountered a welding lead which was attached to a Miller Syncrowave 300 welding machine, manufactured by defendant, which was then in operation. When *268 plaintiff grabbed the welding lead to move it out of his way, he received a shock which threw him over the top of the inner wall of the tank and onto scaffolding located between the inner and outer walls of the tank.

As a result of being thrown over the inner wall and onto the scaffolding, plaintiff received various bruises, a severe cut on his nose and a cervical spinal cord injury diagnosed as a dislocation of the cervical vertebrae between C-6 and C-7 which caused left side weakness and diminished sensation, plus diminished range of motion and severe pain in his neck. The plaintiff underwent surgery in which C-5, C-6, C-7 and the first thoracic vertebrae were fused.

Plaintiff instituted this suit against defendant, the manufacturer of the Miller Syncrowave 300, alleging defendant's strict liability for designing and manufacturing a product unreasonably hazardous in normal use, and for the manufacturer's failure to adequately warn of inherent danger in the use of its product. After trial, the jury concluded that the accident and injuries suffered by plaintiff resulted from the combined fault of both parties and allocated 60% fault to defendant and 40% fault to plaintiff. The jury fixed plaintiff's total damages at $563,000.00 before reduction by reason of his comparative fault. Judgment was rendered and signed in accordance with the jury verdict.

Defendant-appellant filed motions for judgment notwithstanding the verdict, new trial and remittitur. On February 4, 1986, the trial court granted defendant's motion for new trial. In ruling favorably on defendant's motion for new trial, the trial judge stated:

"THE COURT: Well, the Court finds itself in a very peculiar position with this case. One thing is, I'm a welder, and I also use high frequency machines, and I know, of my own knowledge, not in evidence in this case, that high frequency doesn't shock you. It doesn't cause muscle contractions that low frequency causes. I didn't see in the evidence in this case that anyone really said that high frequency does shock; it's a law of physics or a law of electricity, I guess. I could not understand how the Jury got confused and thought you could get shocked with high frequency. I think you're entitled to a new trial, and it's granted."

Plaintiff thereafter applied to this court for a supervisory writ which was granted. On March 12, 1986, this court reversed the trial court's order granting a new trial and reinstated the jury verdict concluding that the trial court abused its discretion in granting a new trial as the decision to do so was based on the trial judge's own personal knowledge. Whittle v. Miller Electric Mfg. Co., our docket number 86-123. On April 7, 1986, the trial court denied defendant's previously filed motion for judgment notwithstanding the verdict and defendant perfected this appeal assigning the following as errors:

1. The trial court erred in refusing to grant a motion for judgment notwithstanding the verdict even though the trial court determined the jury verdict was manifestly erroneous.
2. The jury erred in determining that the welding machine was unreasonably dangerous and that the welding machine caused plaintiff's injuries.
3. The trial court erred in refusing to allow evidence of a prior inconsistent statement.
4. The amount of general damages awarded by the jury is clearly excessive.

Plaintiff also appealed urging that the jury verdict was in error only insofar as it found him to be 40% at fault.

We first consider whether the jury clearly erred in its conclusions as to liability.

It is undisputed that the plaintiff received a severe electrical shock when he attempted to move a welding lead which was attached to a Synchrowave 300 welding machine, which was then in operation. It is likewise without dispute that this electrical shock was a substantial cause of his injury.

According to the record, the Synchrowave 300 welding machine is designed and manufactured to perform both Shielded *269 Metal Arc Welding (SMA) and Tungsten Inert Gas Welding (TIG). The Synchrowave generates two types of electrical current, a high frequency electricity, also referred to as high frequency, high voltage current (3000 volts at 1.2 to 25 megahertz) and a welding current (75-80 volts at 60 hertz). Cables or welding leads attached to the Synchrowave carry the two types of current to the work area. Miller does not manufacturer welding leads and there is no evidence that the cables involved in this case were furnished by Miller. The welding leads are insulated with a material capable of protecting against a current of 600 volts. The welding current, also known as open circuit voltage, is the electricity that is used to do the actual welding. It is the welding current which actually melts the electrode or welding rod at the point of the weld in SMA welding. The high frequency electricity generated by the Synchrowave is intended for use only in TIG welding. In this specialized welding process, the welder does not touch the electrode to the metal being welded, rather a non-consumable electrode or welding rod is used and the high frequency electricity is superimposed over the welding current to initiate and stablize the arc at the weld. This is accomplished by the high frequency electricity ionizing the air or forming a bridge between the electrode and the metal over which the welding current travels.

The high frequency switch on the Synchrowave provides three positions which determine the length of time the high frequency is either on or off. In the "start" position, high frequency is present at the welding electrode when the arc is initiated and for approximately 2.5 seconds thereafter; in the "continuous" position, the high frequency is on all the time; and, in the "off" position, high frequency is not available. The Synchrowave owners manual cautions that the high frequency switch should be placed in the "off" position before performing SMA welding. However, this warning cautions only as to possible shock to the operator because the use of high frequency to establish an arc with a stick electrode might cause an arc to form between the electrode holder and the operator.

At the time plaintiff was shocked, the welders on the job site were engaged in SMA welding.

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507 So. 2d 266, 1987 La. App. LEXIS 9550, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whittle-v-miller-electrical-mfg-co-lactapp-1987.