Zeller v. Olympic Marine Co.

692 So. 2d 1172, 96 La.App. 5 Cir. 771, 1997 La. App. LEXIS 548, 1997 WL 106376
CourtLouisiana Court of Appeal
DecidedMarch 12, 1997
DocketNo. 96-CA-771
StatusPublished
Cited by1 cases

This text of 692 So. 2d 1172 (Zeller v. Olympic Marine 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
Zeller v. Olympic Marine Co., 692 So. 2d 1172, 96 La.App. 5 Cir. 771, 1997 La. App. LEXIS 548, 1997 WL 106376 (La. Ct. App. 1997).

Opinion

DALEY, Judge.

Plaintiff, Ruston Zeller, appeals the trial court’s finding that one defendant, Heyl & Patterson, has no liability in the accident that injured Mr. Zeller.1 After thorough consideration of the record and pertinent law, we affirm.

Mr. Zeller was injured in the course and scope of his employment as a bargeman2 at the Zen-noh Grain Corporation elevator and barge unloading facility in Convent, Louisiana, on October 10, 1990. Plaintiffs injuries occurred when a chain in the barge haul system snagged a barge kevel, creating tension on and causing a wire cable in the barge haul system to break and strike plaintiff. Originally, plaintiff filed suit against forty-eight different corporate and individual defendants; trial proceeded against five defendants: Zen-noh Grain Corporation, Olympic Marine |4Company (owner/operator of the tugboat that moved the barge), Joseph Tardo (captain of the tugboat), Alton Rivero (port director for Olympic Marine), and Heyl & Patterson (designer of the barge haul system).

Fidelity & Casualty Company of New York, as workers’ compensation carrier, intervened in the suit for recovery of its payments to plaintiff. After a lengthy bench trial on August 23-27, 1993, the trial court rendered the following verdict: $400,000 past, present, and future pain and suffering to Zeller; $149,573.16 past medical expenses; $64,551.75 future medical expenses; $76,-793.11 past lost wages; and $224,335.98 for future wage loss. Mrs. Zeller was awarded $25,000 for loss of consortium. The trial court made the following apportionment of liability: 70% fault to Zen-noh employees, 25% contributory negligence to plaintiff, and 5% fault to Olympic Marine. The trial court found that the actions of Heyl & Patterson, as manufacturer of the barge haul system on which plaintiff worked, had no causal relationship to the plaintiffs accident. The in-tervenor’s lien in the amount of $249,865.99 was recognized, with the judgment providing for the additional reimbursement of any additional sums paid. Plaintiffs’ claims against Zen-noh Corporation, Tardo, Rivero, and Heyl & Patterson were dismissed with prejudice.

Plaintiffs filed a Motion for New Trial. Olympic Marine, Tardo, and Rivero filed a Motion for Reargument and/or Reconsideration and/or New Trial. The trial court granted a new trial for reargument purposes only and agreed to consider additional testimony. The court heard reargument, the testimony of an additional witness, and received several proffered depositions on April 6,1995.

On July 24, 1995, plaintiffs dismissed their claims against Olympic Marine, Tardo, Rive-ro, and various other insurers and underwriters, with prejudice, reserving their rights against Heyl & Patterson.

|sOn August 21,1996, the trial court denied plaintiffs’ Motion for New Trial with regard to their claims against Heyl & Patterson. Plaintiffs and intervenor moved for a devolu-tive appeal.

On appeal, the Zellers assert various assignments of error. First, they argue that admiralty substantive law, specifically the general maritime law of products liability, applies to this case, rather than the Louisi[1174]*1174ana Products Liability Act, LSA-R.S. 9:2800.51 et seq. Next, a series of assignments of error challenges the trial court’s finding that no causal connection linked the actions of Heyl & Patterson with the plaintiffs accident. Specifically, the plaintiff argues that the barge haul system was defective because Heyl & Patterson failed to provide the proper specifications and warnings. Plaintiff argues that the trial court committed legal error in failing to adopt the uncontradieted opinion of plaintiffs expert, Mr. AJ. McPhate. Finally, plaintiffs contend that the trial court’s awards of loss of future earning capacity, loss of future earnings, and future medical expenses were inadequate and should be raised, and that the trial court erred in failing to award plaintiff damages for lost fringe benefits.

We affirm the trial court’s finding that Heyl & Patterson is not liable to plaintiff for this accident. The assignments of error relating to plaintiffs contributory fault and quantum are rendered moot by our affir-mance of the trial court’s judgment, and plaintiffs’ dismissal of the remaining defendants Olympic Marine, Tardo, and Rivero.

Facts

Ruston Zeller had been employed as a bargeman since November 1982 at Zen-noh’s Convent grain elevator. Zeller worked at the barge unloading slip, where | (¡loaded inland river hopper barges would be unloaded and their cargo transferred to ocean-going vessels. In 1980, Zen-noh began the construction of its barge unloading facility at its Convent grain elevator. R.S. Fling & Partners, Inc., consulting engineers (Fling), were responsible for the overall coordination of the project. James Bleke and Associates were employed as the on-site construction managers. Bleke did not have any involvement in the design of the barge haul system. Fling furnished the barge haul design specifications to Heyl & Patterson. These specifications did not include the tag line (the cable which broke) or tag line hoist, as these were to be furnished by Zen-noh. Heyl & Patterson’s equipment was installed and erected by B & G Crane/Sun Erection. Heyl & Patterson had a representative present on the site during erection and start up.

The barge haul system was designed by Heyl & Patterson, save specific parts, such as the tag line and tag line hoist, that Zen-noh furnished. The barge haul system is an integrated system of cables and chains that allow a loaded grain barge to enter the slip, have its covers removed and cargo unloaded, cleaned and covers replaced, and the empty barge moved through the slip to be removed by a tug boat. Four bargemen, one of whom was Zeller, are responsible for hooking the barge to the barge haul system and removing it once the barge is unloaded.

Zen-noh’s barge unloading facility consists of three primary components. The “heart” of the facility is the “barge haul system,” a dual winch system consisting of large cables. At each end of the slip is a large winch, from which a barge haul cable leads towards the center of the slip where it is attached to the barge. The upriver cable is manually attached by Zen-noh bargemen to the upriver end of the barge and likewise, the downriver cable is attached to the downriver end of the barge. These two barge haul cables allow the operator, who sits in the cover station control room, |7to move the barge back and forth within the slip so that the covers can be removed, the barge unloaded, and then refitted with its covers. The second component, the cover station, is located at the downriver end of the barge slip; there the barge is first moored, its covers are lifted and removed. The barge is then moved towards the upriver end of the slip where it is unloaded; it is then shifted back downriver, underneath the cover station, where the barge covers are lowered and refitted onto the empty barge. The third component is the “marine leg un-loader,” which is situated towards the upriver end of the barge slip. Here a bucket unload-er scoops grain from the barge and transfers the grain into the conveyor/shiploading system.

The upriver and downriver barge haul cables are the primary components in the barge haul system, and are connected with two 200-foot tag lines. These tag lines were not supplied by Heyl & Patterson, but were furnished by Zen-noh.

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Bluebook (online)
692 So. 2d 1172, 96 La.App. 5 Cir. 771, 1997 La. App. LEXIS 548, 1997 WL 106376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zeller-v-olympic-marine-co-lactapp-1997.