author: I «SOL GOTHARD, Judge.

text:
    Edward AUGUST v. GRAND LAKE CONSTRUCTION.
    No. 02-CA-632.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.

      J. Courtney Wilson, New Orleans, LA, for PlaintiffyAppellant.
    Jana Smith ■ Creely, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, SOL GOTHARD, and CLARENCE E. McMANUS.
   I «SOL GOTHARD, Judge.

Plaintiff, Edward August, appeals an adverse judgment of the trial court that granted a defense exception of no cause of action.

This action began when plaintiff filed a “Petition for Breach of Contract” in which he alleged that defendant, Grand Lake Construction, Inc., (Grand Lake), repaired a patio top and part of a roof at his residence in February 1994. The petition also alleges that the area repaired had to be repaired again in June 2000 because of leaks in the earlier work done by Grand Lake. Plaintiff asserts that, because he could not locate Grand Lake, he was required to spend $6,595.00 with another construction company to repair the damage.

Grand Lake filed an exception of no cause of action in which it asserted that the suit is perempted by LSA-R.S. 9:2772, which was amended to reduce the peremp-tive period for such suits from ten to seven years. Plaintiff argued that the effective date of that amendment was August 15, 1999, and does not apply to the contract at issue. After a hearing on the merits, the trial court found that the petition for breach of contract, filed on May 8, 2001, over seven years from the date of the renovation, was perempted by LSA-R.S. 9:2772, and rendered a judgment granting the exception. Plaintiff filed a timely appeal from that judgment.

Plaintiff argues correctly that the 1999 amendment to LSA-R.S. 9:2772 only applies prospectively and does not apply to the contract at issue herein. When the | astatute was amended in 1999, the legislature provided, “(t)he provisions of this Act shall have prospective application only and shall apply only to contracts entered into on or after the effective date of this Act.” That act became effective on August 15, 1999. Since the contract at issue was con-fected in 1994, the ten-year peremptive period is applicable. Thus, the trial court erred in ruling that plaintiffs action is perempted pursuant to the seven-year per-emptive period in that statute.

However, that does not end our inquiry. In brief to this Court, Grand Lake raises the issue of prescription, citing the following sections of LSA-R.S. 9:2772:

A. No action, whether ex contrac-tu, ex delicto, or otherwise, including but not limited to an action for failure to warn, to recover on a contract, or to recover damages shall be brought against any person performing or furnishing land surveying services, as such term is defined in R.S. 37:682(ll)(a), including but not limited to those services preparatory to construction, or against any person performing or furnishing the design, planning, supervision, inspection, or observation of construction or the construction of immovables, or improvement to immovable property, including but not limited to a residential building contractor as defined in R.S. 37:2150.1(9):
B. (1) The causes which are per-empted within the time described above include any action:
(a) For any deficiency in the performing or furnishing of land surveying services, as such term is defined in R.S. 37:682(ll)(a), including but not limited to those preparatory to construction or in the design, planning, inspection or observation of construction, or in the construction of any improvement to immovable property, including but not limited to any services provided by a residential building contractor as defined in R.S. 37:2150.1(9).
D. Actions for the causes enumerated in Sub-section B of this Section, against the persons enumerated in Subsection A of this , Section, shall prescribe by the applicable prescriptive periods established by law for such actions.

Pursuant to sub-section D above, we must establish the prescriptive period for the cause of action in the instant matter. The petition alleges faulty workmanship pursuant to a construction contract. An inquiry into the timeliness of a suit filed for such a cause of action begins with LSA-C.C. art. 2762, which provides:

|4If a building, which an architect or other workman has undertaken to make by the job, should fall to ruin either in whole or in part, on account of the badness of the workmanship, the architect or undertaker shall bear the loss if the building falls to ruin in the course of ten years, if it be a stone or brick building, and of five years if it be built in wood or with frames filled with bricks.

We note that the above cited article establishes a cause of action when construction falls to ruin within the applicable time period. It does not set out a period when the action must be brought. Orleans Parish School Bd. v. Pittman Const. Co., 260 So.2d 661, 665 (La.1972). Thus, article 2762 establishes a cause of action when the badness of the workmanship results in ruin within the applicable time period. The time within which the cause of action may be asserted is governed by the prescriptive articles. Orleans Parish School Bd. v. Pittman Const. Co., supra. 260 So.2d at 666.

Therefore, while Grand Lake argues prescription, we find the initial issue before the court is whether a cause of action was established. Pursuant to LSA-C.C.P. art. 927B an appellate court may notice the failure of a plaintiff to assert a cause of action on its own motion. The cause of action cannot be asserted before it accrues, and it must follow that any prescriptive period for asserting the cause of action cannot begin to run until the cause of action comes into being. Orleans Parish School Bd. v. Pittman Const. Co., supra, 260 So.2d at 666.

The function of an exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. La.Code Civ. P. art. 931. Therefore, the court reviews the petition and accepts well pleaded allegations of fact as true, and the issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought, (some citations omitted)
Hall v. Zen-Noh Grain Corp., 2001-0324 (La.4/30/01), 787 So.2d 280, 281.

The reviewing court is to make a de novo determination because the exception raises a question of law and the lower court’s decision is based only on the | ^sufficiency of the petition. Thus, assuming that all the facts in plaintiffs petition are true, this court must determine if the plaintiff has a cause of action. Millet v. Treasure Chest Casino, L.L.C., 00-18 (La.App. 5 Cir. 5/30/01), 788 So.2d 713, 715; unit denied, 01-1908 (La.10/5/01), 799 So.2d 485.

The petition in this matter only states that “(b)y June 2000 the ridge over the living room and other items had to be repaired because of leaks in the work done by defendant.” The type of construction is not asserted, so it is not clear from the petition whether the ruin was within the time period that would establish a cause of action. Therefore, on its face, the petition does not state a cause of action. LSA-C.C.P. art. 934 provides that when “the grounds of the objections pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court.”

In conclusion, we find that the judgment of the trial court granting the exception of no cause of action, although based on incorrect law, was correctly granted. However, that portion of the judgment that dismissed plaintiffs action with prejudice is incorrect and is hereby reversed. In accordance with LSA-C.C.P. art. 931, we amend the judgment to allow the plaintiff fifteen days from the rendition of this opinion to amend his petition to state a cause of action.

For the reasons discussed herein, the judgment of the trial court is reversed insofar as it dismisses plaintiffs action with prejudice. The judgment is amended to allow the plaintiff fifteen days to amend his petition to state a cause of action. In all other respects, the judgment is affirmed as amended and the matter is remanded.

REVERSED IN PART; AMENDED, AND AFFIRMED AS AMENDED, AND REMANDED.


source: Caselaw Access Project

author: |,THOMAS F. DALEY, Judge.

license: Public Domain

text:
    Heman LeBLANC and Joann LeBlanc v. WESTERN HERITAGE INS. CO. and Anthos “Boy” Williams, d/b/a Boyz Auto Repair.
    No. 02-CA-788.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2002.
    Writ Denied April 4, 2003.

      William H. Eckert, Claudia P. Santoyo, Metairie, LA, for Defendants/Appellees.
    George Waguespack, Gary M. Gaudin, Waguespack & Gaudin, Gonzales, LA, for Plaintiffs/Appellants.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   |,THOMAS F. DALEY, Judge.

The plaintiffs, Heman and Joanna Le-Blanc, have appealed the jury verdict claiming fault was incorrectly apportioned and damages are inadequate. For the reasons that follow, we affirm.

FACTS:

The plaintiff, Heman LeBlanc, was injured when he was struck by a school bus that was attached to a wrecker driven by the defendant, Anthos “Boy” Williams. The accident occurred at Williams’ shop as Williams was backing the bus under his work area. LeBlanc had gone behind the bus next to the front door of the shop. LeBlanc was crushed between the bus and the doorframe. LeBlanc sustained serious injuries including several rib fractures, a liver laceration, renal, cardiac, and pulmonary contusions, eye hemorrhages, and a fractured left arm.

LeBlanc filed suit against Williams’ insurer, Western Heritage Insurance Company. Following a jury trial, the jury found LeBlanc 82% at fault and Williams 18% at fault. LeBlane’s total award of $314,000.00 was reduced 82% by |3the trial court to $56,520.00. Joanna LeBlanc was awarded $50,000.00 for loss of consortium that was also reduced 82% to $9,000.00. Plaintiffs’ Motions for JNOV and New Trial were denied by the trial court. This timely appeal followed.

LAW AND DISCUSSION:

In their first Assignment of Error, the plaintiffs claim the trial judge erred prior to trial by failing to grant a judgment on liability when all parties agreed that there was no genuine issue of material fact. Plaintiffs explained that both parties filed Motions for Summary Judgment that were denied by the trial court.

The denial of a Motion for Summary Judgment is reviewable under this Court’s supervisory jurisdiction. The record does not indicate that a Writ of Review was taken by either party following the denial of their respective Motions for Summary Judgment. As provided for in Code of Civil Procedure Article 968, an appeal does not lie from the court’s refusal to grant summary judgment. Accordingly, this Assignment of Error is without merit.

In their second Assignment of Error, plaintiffs contend that the jury erred in the allocation of fault. Specifically, plaintiffs argue that a backing motorist is required to exercise a high degree of care and if the driver of a backing vehicle could have reasonably avoided the accident, he is responsible for injuries caused when he strikes a pedestrian. Plaintiffs contend that had the passenger in the wrecker been asked to act as a flagman, the accident could have been avoided.

Defendants respond that Williams’ failure to walk around the back of the bus prior to backing up or failing to have a flagmen is not negligence per se. Citing the testimony of LeBlanc that he knew he was in Williams’ blind spot and turned his head away from the incoming bus as the bus approached him, defendants contend the jury’s allocation of fault is supported by the evidence.

4 The long-standing, well-settled rule of law is that a Court of Appeal may not set aside a jury’s finding of fact unless there is manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). The Court of Appeal may not reverse the jury’s findings if the jury’s findings are reasonable in light of the entire record and are supported by the record, even if the appellate court feels it would have ruled differently. Id.

In the case before us, LeBlanc testified that he and Williams had been friends for 50 years. He went to Williams’ repair shop several times a week. He had seen Williams back school busses up under the canopy of his repair shop on numerous occasions and had never seen Williams hit anything. LeBlanc testified that on the day of the accident, he went to Williams’ shop to have a tire on his boat trailer repaired. As he approached the shop, Williams was backing up the wrecker with a school bus behind the wrecker. LeBlanc waved at Williams, parked his truck, got the tire out of the truck and proceeded to the front door of the shop. He knew the shop was closed because Williams always closed the shop when there was no one else present and he had to leave. LeBlanc explained that he walked to the front door and put the tire on a 55-gallon drum. When he put the tire on the drum, Williams was backing up. LeBlanc put his back to the door and watched Williams back up. As Williams continued to back up, LeBlanc turned his head to take the valve cap off of the valve stem; he was no longer looking at Williams backing up. LeBlanc then stated that he got jammed between the doorframe and the bus. He recalled seeing Williams come to him af-terwards as he was lying on the ground. On cross-examination, LeBlanc admitted that Williams could not see him because the wrecker was on an angle. He further testified that he never tried to signal Williams, as the bus got closer.

Williams testified that he had a contract with the school board to repair busses. He had driven a bus for 20 years and obtained his first wrecker in 1963. |B He explained that when he is backing a bus into his shop under the canopy, he backs up slowly, looking in the mirrors. He explained that if the wrecker is on an angle, it is hard to see the tail end of the bus. Williams testified that on the day of the accident, he saw LeBlanc pass in his truck, so he stopped backing up to make sure LeBlanc did not pull behind the bus. Once he saw LeBlanc pass the shop, he started backing up. Williams testified that he did not see LeBlanc park his truck or get out of his truck. Williams testified that when he is backing a bus under his canopy, whether or not he can see the front door of his shop depends on the angle he is backing. Williams testified that after he finished backing up, he got out of the wrecker to let the bus down. It was at that point he saw LeBlanc lying on the ground. LeBlanc told Williams that he hit him, but Williams was unsure what hit LeBlanc.

Had this Court been the finder of fact we would not have assessed LeBlanc with 82% fault. However, based on this testimony, we find there is evidence in the record to support the jury’s allocation of fault. Hence we cannot say that the allocation of fault was manifest error. Le-Blanc put himself in a position of danger. He acknowledged that he was in Williams’ blind spot and remained there. As the bus got closer to LeBlanc, rather than focus on the bus, he turned to remove the cap from the valve on his tire. He gave no warning to Williams to let him know where he was. In fact, it is clear from Williams’ testimony that Williams was completely unaware that LeBlanc was behind him. LeBlanc was familiar with Williams’ repair shop and placed himself in a position of danger.

In their third Assignment of Error, plaintiffs contend the trial judge erred in failing to grant a Motion for New Trial or JNOV. Plaintiffs contend that the jury could not understand or apply the law and given the facts of this case, the jury’s verdict is contrary to law.

A JNOV should only be granted when the evidence adduced at trial points so overwhelmingly in favor of one party that a reasonable person could not reach a contrary result. Vasalle v. Wal-Mart Stores, Inc., 01-0462 (La.11/28/01), 801 So.2d 381. If there is evidence that a reasonable person could reach a different conclusion, the motion should be denied; all reasonable inferences should be resolved in favor of the non-moving party. Id. We find that the jury’s allocation of fault is supported by the evidence, therefore, the trial judge correctly denied plaintiffs’ Motion for JNOV.

Plaintiffs also contend the trial court erred in denying their Motion for New Trial, arguing that the jury verdict is contrary to the law and evidence. Additionally, plaintiffs argue that the jury failed to follow the trial judge’s instructions in calculating damages. Plaintiffs contend that the jury actually awarded plaintiff $2,024,344.25 and reduced that amount by 82% to arrive at the figure of $364,000.00. They argue the trial judge was unaware that the award had already been reduced and the trial judge reduced the $364,000.00 by 82%. In support if their position, plaintiffs submitted affidavits signed by three jurors attesting that that juror concurred with the other jurors in awarding a total of $2,024,344.25 and that amount was reduced by 82% to arrive at the amount of $364,000.00. These three jurors further attested that it was unclear that they should not have deducted the amount by the plaintiffs’ percentage of negligence and that they did not realize that the trial judge would make the appropriate reduction.

A new trial should be granted where: (1) the verdict or judgment appears clearly contrary to law and evidence; (2) important evidence is discovered after trial; or (3) the jury was bribed or behaved improperly so that impartial justice was not done. C.C.P. art.1972. Additionally, article 1973 provides that a new trial may be granted “in any case if there is good ground therefore, except as otherwise 17provided by law.” A trial judge has broad discretion in the granting or denying of a Motion for New Trial. The appellate standard of review of the ruling on a Motion for New Trial is whether the trial judge abused his discretion. Martin v. Heritage Manor South, 00-1023 (La.4/3/01), 784 So.2d 627.

In denying plaintiffs’ Motion for New trial, the trial court noted that our jurisprudence prohibits affidavits and other testimony by jurors to be used as evidence to impeach the jury’s verdict. Uriegas v. Gainsco, 94-1400 (La.App. 3 Cir. 9/13/95), 663 So.2d 162, unit denied, 664 So.2d 458 (La.12/15/95). We agree.

Article 606 of the Louisiana Code of Evidence provides:

B. Inquiry in to validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether any outside influence was improperly brought to bear upon any juror, ... Nor may his affidavit or evidence of any statement by him concerning a matter which he may be precluded from testifying be received for these purposes.

This rule is necessary to protect the sanctity and privacy of jury deliberations. “One reason for this rule is that if, after being discharged and mingling with the public, jurors are permitted to impeach verdicts which they have rendered, it would invite tampering with jurors and would place it in the power of a dissatisfied or corrupt juror to destroy a verdict to which he had deliberately given his assent under the sanction of oath.” Parker v. Centenary Heritage Manor Nursing Home, 28,401 (La.App.6/26/96), 677 So.2d 568, 574, writ denied, 96-1960 (La.11/1/96), 681 So.2d 1271.

There has been no showing of an outside influence that improperly influenced any juror that would allow the introduction of juror testimony in this |scase. Furthermore, the record indicates that the jury was properly instructed as to the law to be applied in this case. While the trial judge instructed the jury that recovery of an injured person who has contributed to his own injury must be decreased by the percentage of fault attributable to him, the judge never instructed the jury as to who was to decrease the award. The judgment states that the awards were made without deducting any sums assigned to either party. The actual jury interrogatories are not contained in the record. Based on the record before us, we find the trial judge correctly denied plaintiffs’ Motion for New Trial.

Plaintiffs also assign as error the amount of damages awarded by the jury, contending that given the facts of this case, an award of $364,000.00 was a clear abuse of discretion.

Mr. and Mrs. LeBlanc, as well as three of Mr. LeBlanc’s treating physicians, testified as to Mr. LeBlanc’s injuries. Upon admission to the hospital, Mr. LeBlanc had several rib fractures, a liver laceration, renal, cardiac, and pulmonary contusions, eye hemorrhages, and a fractured left arm. His arm was surgically repaired with the insertion of pins and screws. The remaining injuries healed without intervention. He spent two weeks in the hospital including eight days in intensive care. He had difficulty sleeping when he returned home. Mr. LeBlanc was also treated for depression. Additionally, Mr. and Mrs. LeBlanc testified as to the many activities Mr. Le-Blanc no longer participated in following this accident.

The jury awarded $214,000.00 in general damages and $100,000.00 in special damages. While we find this award to be very low, it is not so low that we find it to be an abuse of the jury’s vast discretion.

Mrs. LeBlanc was awarded $50,000.00 for loss of consortium. Defendant complains that this is an excessive award. However, defendant has not filed an appeal, nor has he answered plaintiffs’ appeal. Accordingly, this issue will not be addressed.

|3For the foregoing reasons the judgment of the trial court is affirmed.

AFFIRMED.


author: | MOAN BERNARD ARMSTRONG, Judge. |,BAGNERIS, J.,

text:
    Charlene Van Natta GRAYSON v. The STATE of Louisiana ex rel The DEPARTMENT OF HEALTH AND HOSPITALS; Felix’s, Inc. d/b/a Felix’s Restaurant and Oyster Bar, Inc.; “ABC” Insurance Company; Mike Anderson’s Seafood of New Orleans, Inc., et al.
    No. 2001-CA-0720.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 30, 2002.

      Scott LaBarre, Gauthier, Downing, La-Barre, Beiser & Dean, Metairie, LA, for PlaintifRAppellee.

      Craig R. Nelson, Ward Nelson, L.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MIRIAM G. WALTZER and Judge DENNIS R. BAGNERIS, SR.).
   | MOAN BERNARD ARMSTRONG, Judge.

This is a wrongful death and survival action. The plaintiffs decedent died of an infection contracted from eating raw oysters. The plaintiff sued, among others, a State agency. The claim against the State was based upon failure to enforce a health regulation. The trial court found in favor of the plaintiff and awarded damages. The State appeals. We will affirm.

Jack Van Natta visited New Orleans in June, 1993. He was from California. He was accompanied by his girlfriend, June Wutzke. They visited three New Orleans restaurants and Mr. Van Natta ate raw oysters. Mr. Van Natta was infected with the bacteria vibrio vulnificus as a result of eating the raw oysters. The bacteria is not dangerous to most people. However, to persons with certain health problems, including chronic liver disease, the bacteria can be deadly. Mr. Van Natta, who was an alcoholic, suffered from liver disease. As a result, he became extremely ill and died from the infection.

| j>Mr. Van Natta’s daughter, Charlene Van Natta Grayson, filed suit against the restaurants and DHH. She settled with the restaurants. The case was tried to the bench and the trial court found DHH 100% at fault. The theory of liability was that DHH had failed to enforce a State Sanitary Code provision calling for restaurants which serve raw oysters to place warnings at the point of sale informing customers that persons with certain health impairments including chronic liver disease, should not eat raw oysters. The provision had been added to the State Sanitary Code because of concern about the threat of the vibrio vulnificus bacteria to persons with certain health impairments including chronic liver disease. However, because the Interstate Shellfish Sanitation Conference (“ISSC”) had certain objections to the language of the warning called for by the State Sanitary Code, DHH deliberately did not enforce the requirement of restaurant warnings.

DHH argues on appeal that its failure to enforce the raw oyster warning requirement did not matter because, as a matter of voluntary compliance, the restaurants had the warnings in place. The plaintiff replies that the evidence at trial showed that the restaurants did not have the warnings in place. The trial court’s holding the DHH liable for failure to enforce the warning requirement necessarily implicitly included a factual finding that the warnings were not in place. Of course, we review the trial court’s finding of fact under the clearly wrong-manifestly erroneous standard of review and so we cannot disturb that factual finding so long as it is reasonable. The evidence in support of plaintiffs position consisted of the testimony of June Wutzke, who did not remember seeing any warnings, and the testimony of Pauline Warriner, who went to the restaurants on behalf of the plaintiff, a few months after Mr. Van Natta’s death, to see if there were warnings in place, and she did not see any warnings in place. Also, Ms. |sWarriner obtained menus from the restaurants and the menus did not contain any warnings. The evidence in favor of the DHH’s position consisted of the testimony of two DHH sanitary inspectors and the testimony of the restaurants’ owners. However, the testimony of one of the inspectors was impeached and the testimony of the other was not clearly in support of DHH positions. The testimony of the two restaurant owners was that they did eventually post the warnings but really, could not recall whether they had done so prior to the time of Mr. Van Natta’s visit. Overall, we cannot say that the trial court’s implicit finding, that the warnings were not posted in the restaurants, was clearly wrong-manifestly erroneous.

R.S. 40.4.A. requires DHH to enforce the State Sanitary Code. DHH argues that it acted legally in “suspending” the enforcement of the regulation requiring the warnings due to objections by the ISSC to the required warnings. DHH cites R.S. 40:5.3.E. for the proposition that DHH was required to conform to the wishes of the ISSC. However, the statutory language relied upon by DHH merely requires that DHH “promulgate and adopt emergency regulations in accordance with R.S.49:953 (B) of the Administrative Procedure Act encompassing the detailed methods and technical procedures prescribed by ISSC in the National Shellfish Sanitation Program Manual of Operations”. Such emergency regulation procedures are not implicated with respect to enforcement of the oyster warning regulation. Thus, the statutory language does not excuse the DHH of the statutory requirement to enforce the State Sanitary Code’s oyster warning regulation.

DHH argues more generally that, because it had the statutory authority to promulgate the oyster warning regulation, and the authority to amend or repeal that regulation, it necessarily has the implied power to “suspend” enforcement of the regulation. We do not agree. The DHH, following lawful rule-making procedures, |4could amend or repeal the regulation. However, so long as the regulation is extant, the DHH has absolutely no choice but to enforce it as written. R.S. 40:4.

DHH also argues that its decision not to enforce the regulation was a policy making or discretionary act immunized from liability by R.S. 9:2798.1. However, while the DHH engaged in policy making or discretionary acts when it promulgated the regulation, its policy making and discretionary acts ended with promulgation of the regulation. Once the regulation is promulgated, DHH has no discretion as to whether to enforce it because enforcement is statutorily mandated. R.S. 40:4. DHH’s course of action is prescribed by statute, in that enforcement of the regulation is statutorily mandated, and DHH has no judgment to exercise or decision to make as to whether to enforce the regulation. Therefore, no policy making or discretionary act is involved and R.S. 9:2798.1 is not applicable. E.g., Simeon v. Doe, 618 So.2d 848 (La.1993).

DHH also argues that its decision not to enforce the oyster warning regulation is protected by legislative immunity. We will not address the applicability of legislative immunity to administrative agencies because, clearly, if it is applicable to administrative agencies, it applies to them in their rule-making role, which is analogous to legislation, and not in their rule-enforcement role, which is clearly executive rather than legislative. While DHH’s promulgation of the regulation was “legislative”, its enforcement of the regulation after promulgation is “executive”.

DHH argues that some comparative fault should have been assigned to Mr. Van Natta. However, there is no evidence that Mr. Van Natta knew or should have known that eating raw oysters was hazardous to him. As discussed above, the trial court implicitly found that the warnings were not posted in the restaurants. | .¿Therefore, there is no possible basis to assign any comparative fault to Mr. Van Natta.

DHH argues that, even if warnings had been posted, Mr. Van Natta would not have needed them. DHH bases this argument on the fact that Mr. Van Natta’s physicians had advised him to quit drinking but he continued to drink. We will not generalize from Mr. Van Natta’s failure to heed warnings against drinking to an assumption that he would fail to heed a warning to avoid eating raw oysters. Mr. Van Natta was an alcoholic, i.e., he was addicted to alcohol, and that explains his failure to quit drinking. Avoiding eating raw oysters would present no difficulty similar to alcoholism.

DHH argues that the trial court should have assigned some comparative fault to non-defendant the California Health Department. DHH also complains of the trial court’s exclusion of some of its evidence as to the comparative fault of the California Health Department. However, even if we consider the excluded (but proffered) evidence, and consider the California Health Department’s alleged comparative fault on a de novo basis, we find no error by the trial court. DHH argues that information as to the danger presented by vibrio vulnificus bacteria to persons with chronic liver disease was transmitted to the California Health Department, but that the California Health Department did not disseminate that information to California physicians, with the result that Mr. Van Natta’s California physicians did not know to warn him to avoid raw oysters. However, while consumption of raw oysters is' quite common in Louisiana, it is doubtless rarer in California and we see no reason to doubt that the California health Department made reasonable decisions as to what information, regarding which of myriad health concerns, to disseminate generally among all California physicians. ^Moreover, and perhaps more importantly, the restaurant oyster warning regulation was promulgated some time after Louisiana physicians had been alerted to the threat of the bacteria and the precise purpose of the regulation was to warn those, such as out-of-state tourists, who did not receive warnings from their physicians. DHH also briefly refers to comparative fault of Mr. Van Natta’s California physicians but for the same reasons as just given with respect to the California Health Department, we see no error in not assigning any comparative fault to Mr. Van Nat-ta’s California physicians.

The plaintiff cross appeals as to the quantum of damages. It is readily apparent to us that, because the amount of medical expenses was stipulated, and not made the subject of any testimony, the trial court simply omitted the medical expenses from the judgment through oversight. Therefore, we amend the judgment to add the medical expenses in the stipulated amount of $84,042.43. We also find that the amount of general damages awarded, $85,000, was within the trial court’s vast discretion. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993).

For the foregoing reasons, the judgment of the trial court is affirmed as amended.

AFFIRMED AS AMENDED.

BAGNERIS, J., dissents with reasons.

|,BAGNERIS, J.,

dissenting with reasons.

I respectfully dissent from the majority for the following reasons.

FACTS

Mrs. Charlene Grayson’s cause of action is for the wrongful death of her father, Jack Van Natta, who died after eating raw oysters infected with vibrio vulnificus while vacationing in New Orleans. The plaintiff originally brought suit against The Department of Health and Hospitals (hereinafter DHH) and three French Quarter restaurants and their insurers: Felix’s Restaurant and Oyster Bar, Mike Anderson’s Seafood Restaurant and Oyster Bar, and The Seaport Cafe and Bar, filing her petition on June 23, 1994. She argued that DHH was negligent because it breached its mandatory duty to ensure that these restaurants post warnings in accordance with the State Sanitary Code regarding the dangers of eating raw seafood and that the restaurants themselves were also negligent for not providing the warnings. She further alleged a cause of action in redhibition against the restaurants because the raw oysters were “absolutely useless and imperfect” in that her father would not have purchased and consumed them had he known they were infected with vibrio vulnificus.

pin plaintiffs First Supplemental and Amending Petition, filed July 18, 1994, defendants, The Seaport Cafe and Bar and its insurer, were dismissed from the suit and The Desire Oyster Bar and its insurer were substituted in their place. The plaintiff eventually settled with the three restaurants. And went to trial against DHH as the only remaining defendant.

The Second Supplemental and Amending Petition, filed on October 5, 1994, added the State of Louisiana through the Office of the Attorney General (hereinafter Attorney General) to the suit because plaintiff anticipated that DHH would defend itself by arguing the applicability and constitutionality of La. R.S. 9:2798.1.

DHH filed a motion for summary judgment that was granted. The plaintiff filed an appeal and this Court reversed the trial court and remanded the case for a trial on the merits. After a trial, judgment was rendered against DHH in favor of the plaintiff. DHH appeals the trial court’s judgment.

DISCUSSION

DHH argues that the trial court erred in denying it the immunity granted by the statute, LSA-R.S. 9:2798.1, which states in pertinent part:

“B. Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policy-making or discretionary acts when such acts are within the course and scope of their lawful powers and duties.
C. The provisions of Subsection B of this Section are not applicable:
(2) To acts or omissions, which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.”

|sApplying La.R.S. 9:2798.1 to the facts of this case, we conclude that it bars recovery by the plaintiff against the DHH. La. R.S. 9:2798.1, requires that in order to impose liability on the DHH for discretionary acts, not only must there be a finding of liability under the standard duty/risk analysis, but there must also be a finding that either the conduct complained of was not reasonably related to the DHHR’s legitimate governmental objectives or, it constituted criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.

Assuming the existence of liability on the part of DHH under a duty/risk analysis, La.R.S. 9:2798.1 would nevertheless bar recovery. The failure to warn complained of by the plaintiff constituted a failure to perform a discretionary act within the lawful course and scope of the duties of the DHH. Any warning would have been reasonably related to the DHH’s objectives, and the failure to warn did not constitute the gross misconduct contemplated by the statute.

Further, we are of the opinion that the DHH’s acts or omission in this case do not satisfy the requirements for the imposition of liability set out in La.R.S. 9:2798.1, but the DHH’s conduct does not even satisfy the standard duty/risk analysis necessary to impose liability notwithstanding the applicability of La.R.S. 9:2798.1.

Under the duty/risk analysis adopted by the courts of this state, four inquiries must be answered in the affirmative before a plaintiff can recover based on a negligence theory.

I. Was the conduct in question a substantial factor in bringing about the harm to the plaintiff, i.e., was it a cause-in-fact of the harm, which occurred?
II. Did the defendant owe a duty to the plaintiff?
III. Was the duty breached?
|4IV. Was the risk, and harm caused, within the scope of protection afforded by the duty breached?

Mart v. Hill, 505 So.2d 1120 (La.1987); see also, Crowe, The Anatomy of a Tort-Greenian, as Interpreted by Crowe who has been Influenced by Malone-A Primer, Loy.L.Rev. 903 (1976).

Based on the facts of this case, we conclude that all four of the above inquiries cannot be answered affirmatively. The first element, causation in fact, requires that the defendant’s conduct must have contributed to the plaintiffs harm in some substantial way. The omission on the part of the defendant which the plaintiff complains of and which must have contributed to the plaintiffs harm in order for causation in fact to exist, was a failure to warn the general public about the dangers inherent in eating raw oysters, specifically those dangers posed by the bacteria vibrio vulnificus.

Since this particular bacteria generally only affects persons with certain underlying risk factors, any warning would have necessarily been to the effect that if you have one of the underlying risk factors, you shouldn’t eat raw oysters. Van Natta was an alcoholic with a severely damaged and diseased liver. Van Natta failed to heed the warnings from his physicians to stop drinking.

The Louisiana Supreme Court has held that although it is presumed that warnings will be heeded, this presumption can be rebutted if there is persuasive evidence that an adequate warning would have been futile under the circumstances. Bloxom v. Bloxom, 512 So.2d 839 (La.1987). In this case we are persuaded that an adequate warning would have been futile given the evidence that the plaintiff did not heed the medical advice give by his physician regarding his drinking habits. Thus, the failure of the DHH to warn the general public of the dangers of vibrio vulnificus was not a cause in fact of the plaintiffs harm.

|fiEven if I were to conclude that a failure to warn was a cause in fact of the plaintiffs harm, the plaintiff has also failed to establish the remaining elements of his case under the duty/risk analysis.

After a careful analysis of the relevant statutory provisions I conclude that there was no statutorily imposed duty on the part of the DHH to issue warnings about vibrio vulnificus. However, since the DHH had undertaken various studies of these bacteria, and since it knew that there was a danger posed by these bacteria to a small segment of the population, DHH had a duty, once it had sufficient information, to issue some type of warning.

DHH fulfilled this duty when it published the Monthly Morbidity Report in August of 1982, a full year before the events, which lead to this suit, took place. This report summarized what the DHH knew about vibrio vulnificus at the time, including the deadly effects it has on certain persons with underlying risk factors, what those risk factors are, and the proper methods of prevention and treatment. The report specifically stated that physicians should warn patients with chronic liver and kidney diseases and other conditions causing, or capable of causing impaired immune responses, to avoid eating raw oysters.

The fact that the DHH chose not to aggressively disseminate the information contained in the Monthly Morbidity Report to the general public does not constitute a breach of the duty to warn. Since this bacteria only attacks a small percentage of the population, i.e., those with liver disease, kidney disease or other immuno-suppressive condition, the DHH was reasonable in its conclusion that the best way to warn these people was through the medical community. The Monthly Morbidity Report was sent to every physician in Louisiana, the Center of Disease Control in Atlanta, Georgia, and the health departments of several states, including California. I would hold that this satisfied the duty to warn incumbent on the DHH due to its specialized knowledge and position of public trust.

liJDHH makes two other assignments of errors, however I pretermit discussion of those issues based on my disposition of this matter.

Therefore, for the above and foregoing reasons the judgment of the trial court should be reversed.


author: J^STEVEN R. PLOTKIN, Judge. |,ARMSTRONG, J.,

text:
    Patricia A. JOHNSON, Assessor, First Municipal District, Parish of Orleans, in her Official Capacity only and not Individually v. SARATOGA BUILDING, L.L.C., A Louisiana Limited Liability Company, and Louisiana Tax Commission.
    No. 2002-CA-0780.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 30, 2002.

      Rockne L. Moseley, Elizabeth B. Dowl-ing, Moseley & Associates PLC, New Orleans, LA, for Plaintiff/Appellee.
    Nicholas J. Lorusso, The Lorusso Law Firm, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN . BERNARD ARMSTRONG, Judge STEVEN R. PLOTKIN, Judge JAMES F. McKAY III, Judge MAX N. TOBIAS JR., Judge DAVID S. GORBATY).
   J^STEVEN R. PLOTKIN, Judge.

This is an appeal in a property tax assessment case. Saratoga Building, LLC, defendant-appellant, appeals the trial court’s decision upholding the Assessor’s determination of the value of the commercial office building located at 212 Loyola Avenue in New Orleans, Louisiana. For the reasons below, we reverse the holding of the trial court and reinstate the decision of the Louisiana Tax Commission (“LTC”) determining the value of appellant’s property at $1,400,000.

The Assessor determined the assessment of the property based upon its fair market value of the property in this ease to be $3,796,600 for the tax years 2000 and 2001. Saratoga proposed that the assessment of the property based upon its fair market value of $1,065,013 for the tax years 2000 and 2001. As to the tax year 2000, the Assessor and Saratoga agreed to a settlement with the property valued at $1,400,000. Assessor Johnson assessed the property for tax purposes, setting the assessment at $3,796,000 for tax year 2001. Pursuant to LSA-R.S. 47:1992(C), Sarato-ga sought review of this assessment to the Orleans Parish Board of Tax Review. The Board upheld the $3,796,000 assessment. Saratoga appealed this decision to the Louisiana Tax Commission. The Commission overturned the Board’s decision and determined the value of the property for tax year 2001 was | ¡>$1,400,000. The Assessor then filed suit for judicial review in Orleans Parish Civil District Court. The trial judge concluded that the assessed value of the property for the 2001 tax year was $3,796,600. Saratoga appeals to this Court.

In this case, we are reviewing the district court’s appellate review of a decision of a state agency, the LTC, under La. R.S. 49:964. Under La. R.S. 49:964(G) the trial court’s review of the LTC’s decisions is defined as follows:

The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decision are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Manifestly-erroneous in view of the reliable, probative and substantial evidence on the whole record. In the application of this rule, where the agency has the opportunity to judge the credibility of witnesses by firsthand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

La. R.S. 49:964(G); Johnson v. La Belle Creole Associates, 2000-0630, p. 3 (La.App. 4 Cir. 1/10/01), 779 So.2d 15, 16.

According to the record, the only question for review is whether the LTC was manifestly erroneous in making its factual determination as to the assessed value of the property; and, therefore, La. R.S. 49:964(0(6) applies. Johnson, 2000-0630 at p. 3, 779 So.2d at 16. Because the district court reviews the LTC’s decision under an abuse of discretion standard, this Court | Sreviews the district court’s decision de novo, applying the same abuse of discretion standard applicable to the trial court.

In the instant case both the appellant and appellee presented competing methodologies used in their respective valuations of the property in question. Clearly, the LTC chose to credit the “income approach” used by the appellant, which yielded a lower assessed value and took into account the poor condition and lack of use of a majority of the property. Upon viewing the record, we find no evidence to suggest that LTC’s determination was manifestly erroneous in this regard. Therefore, the trial court was erroneous in reversing the decision of the LTC under La. R.S. 49:964.

Thus, the ruling of the trial court is reversed and we reinstate the decision of the Louisiana Tax Commission determining the proper assessed value of appellant’s property at $1,400,000.

VACATED AND REVERSED.

ARMSTRONG, J., dissents.

|,ARMSTRONG, J.,

dissenting.

I respectfully dissent. Under the clearly wrong/manifestly erroneous standard of review, we may not disturb the trial court’s finding, so long as it is reasonable, regardless of how we would decide this issue as an original matter. Rosell v. ESCO, 549 So.2d 840 (La.1989); Stohart v. State Through DOTD, 617 So.2d 880 (La.1993). Reasonable minds can differ as to the best valuation method for the property in question, income approach versus comparable sales approach, so I cannot find that the trial court was clearly wrong/manifestly erroneous. Accordingly, I would affirm the judgment of the trial court.


author:
|1 WILLIAM H. BYRNES III, Chief Judge.
      I,TOBIAS, J.,

text:
    James HENNEGAN v. COOPER/T. SMITH STEVEDORING COMPANY, INC.
    No. 2002-CA-0282.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 30, 2002.
    Writ Denied April 21, 2003.

      Stephen B. Murray, Stephen B. Murray, Jr., Murray Law Firm, New Orleans, LA, and Thomas M. Discon, Discon Law Firm, Mandeville, LA, for Plaintiff/Appellee.
    George C. Freeman, III, Denise M. Pi-lie’, Stone, Pigman, Walther, Wittmann & Hutchinson, L.L.P., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge TERRI F. LOVE, and Judge MAX N. TOBIAS, JR.).
   |1 WILLIAM H. BYRNES III, Chief Judge.

Garlock, Inc. (“Garlock”) appeals a judgment in favor of the plaintiff, Mary Henne-gan, individually and on behalf of the estate of her late husband, James Michael Hennegan, in this maritime asbestos products liability tort action where the trial court found the manufacturer, Garlock, solidarily liable after a bench trial. We affirm.

From 1965 to 1968, the decedent, James Hennegan, was employed as a Jones Act seaman/deckhand aboard a fleet of derrick barges owned and operated by his employer, T. Smith & Sons (now doing business as Cooper/T. Smith Stevedoring Company, Inc.) (“Cooper/T.Smith”). Among his duties, Mr. Hennegan was responsible for the maintenance of the steam derricks aboard the barges. On February 10, 1997, James Hennegan was diagnosed with malignant mesothelioma at age 54. He died three years later in December 1999.

Procedural History

On August 5, 1997, James Hennegan filed suit in civil district court against his employer, Cooper/T. Smith, under the Jones Act and general maritime law. He | ¡¡claimed damages arising from mesotheli-oma caused by his exposure to asbestos aboard Cooper/T. Smith’s derrick barges.

On December 30, 1997, Cooper/T. Smith filed a third-party demand against Amdura, Inc. (“Amdura”), successor in interest to American Hoist, manufacturer of the cranes aboard the derrick barges. On May 12, 1998, Cooper/T. Smith filed a supplemental third-party demand against various manufacturers of asbestos products allegedly aboard the derrick barges during Mr. Hennegan’s employment. The defendants included Garlock, the manufacturer of gaskets and packings used at Cooper/T. Smith; Owens Corning Fiberglass (“OCF”), the manufacturer of Kaylo, an asbestos pipe cover; Owens-Illinois (“0-I”), the previous manufacturer of Kaylo; W.R. Grace & Co. — Conn., as well as Eagle, Inc., and A.P. Green Industries, Inc., the manufacturer of mortar and firebricks used in the boilers on the Cooper/T. Smith vessels. Also named as a defendant was the City of New Orleans, the employer of Mr. Hennegan, who worked as a city fireman for over 20 years. Pursuant to the plaintiffs motion, Cooper/T. Smith’s third-party claims were severed from the plaintiffs action against Cooper/T. Smith.

In August 1998, Mr. Hennegan settled with Cooper/T. Smith. In October 1998, Mr. Hennegan filed a supplemental petition, naming the parties alleged by Cooper/T. Smith to have furnished asbestos-containing products to Cooper/T. Smith during his employment. Mr. Hennegan named as defendants Garlock, O-I, Amdu-ra, A.P. Green, Eagle and OCF. Other defendants were dismissed without prejudice prior to trial.

|sMr. Hennegan settled with Amdura. In December 1999, the plaintiff, James Hennegan, died, and his wife was substituted as party plaintiff as the administra-trix of the estate. On March 31, 2000, Mrs. Hennegan filed another supplemental petition, asserting a wrongful death claim on behalf of herself and a survival action on behalf of James Hennegan’s estate.

In October 2002, OCF, the manufacturer of the “Kaylo” pipe insulation used aboard the derricks, filed for bankruptcy, and all lawsuits against it were stayed. Prior to trial the plaintiff settled with A.P. Green, and the plaintiff dismissed the City of New Orleans without prejudice. The bench trial commenced on April 16, 2001 against the remaining defendants, Garlock, O-I, and Eagle. The parties agreed to dismiss Eagle without prejudice on the second day of trial. After the plaintiff rested, the trial court granted a directed verdict in favor of O-I. Garlock was the remaining defendant at the end of trial on April 20, 2001.

On July 30, 2001, the trial court rendered its judgment against Garlock, awarding $2,500,000 in general damages plus legal interest, as well as special damages in the amount of $596,769.62. The trial court found that Amdura and A.P. Green were not at fault. The trial court held that Garlock was 80 percent at fault. The trial court concluded that Cooper/T. Smith was 20 percent at fault, and reduced the award against Garlock by that amount. The trial court held that Garlock was soli-darily liable for the remaining damages. Garlock’s appeal followed.

|4On appeal, Garlock contends that the trial court erred in: (1) shifting the burden to Garlock to disprove that Garlock’s products caused Mr. Hennegan’s disease; (2) finding Garlock’s encapsulated gaskets and packing were the substantial cause of Mr. Hennegan’s mesothelioma; (3) finding Garlock’s gaskets and packing were unreasonably dangerous; (4) finding Cooper/T. Smith was only 20 percent liable for Mr. Hennegan’s damages; and (5) finding Gar-lock was liable for Mr. Hennegan’s remaining damages. Further, Garlock maintained that the trial court erred in exonerating Amdura and A.P. Green from all liability.

Standard of Review

Admiralty claims may be brought in federal court pursuant to its admiralty jurisdiction or in state court under the savings to suitors clause; in either case, federal substantive maritime law applies. Antill v. Public Grain Elevator of New Orleans, Inc., 577 So.2d 1039 (La.App. 4 Cir.1991), writ denied 581 So.2d 684 (La.1991). In an admiralty case, the appellate court reviews the district court’s findings of fact for clear error and considers all questions of law de novo. Randall v. Chevron U.S.A., Inc., 13 F.3d 888 (5 Cir.1994), modified on other grounds on rehearing, 22 F.3d 568 (5 Cir.1994), certio-rari dismissed sub nom. Sea Savage, Inc. v. Chevron U.S.A., Inc., 512 U.S. 1265, 115 S.Ct. 5,129 L.Ed.2d 906 (1994).

Factual findings made by the trial court in a claim under general maritime law are reviewed under a clearly erroneous standard, which is the same manifestly wrong or clearly wrong standard of review used by the Louisiana appellate courts 1 nin reviewing factual findings of lower courts. Mistich v. Pipelines, Inc., 609 So.2d 921 (La.App. 4 Cir.1992), writ denied 613 So.2d 996 (La.1993), certiorari denied sub nom. Broum & Root, Inc. v. Mistich, 509 U.S. 913, 113 S.Ct. 3020, 125 L.Ed.2d 709. If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the appellate court may not reverse it even though it is convinced that if it had been sitting as the trier of fact, it would have weighed the evidence differently. Anderson v. Bessemer City, N.C., 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Virgil v. American Guarantee & Liability Ins. Co., 507 So.2d 825 (La.1987). A court sitting in admiralty apportions damages in accordance with principles of comparative negligence. Vulcan Materials Co. v. Vulica Shipping Co., Ltd., 859 F.Supp. 242 (W.D.La.1994).

Causation

In the present case, the trial court found that Garlock was strictly liable for Mr. Hennegan’s illness and death. Under a strict tort products liability theory, to recover from a manufacturer, the plaintiff must prove that the harm resulted from the condition of the product, that the condition made the product unreasonably dangerous to normal use, and that the condition existed at the time the product left the manufacturer’s control. Halphen v. Johns-Manville Sales Corp., 484 So.2d 110 (La.1986). The plaintiff need not prove negligence by the maker in its manufacture of processing, since the manufacturer may be hable even though it | (¡exercised all possible care in the preparation and sale of its product. Id. Issues of negligence and causation in admiralty cases are treated as fact questions. Johnson v. Offshore Exp., Inc., 845 F.2d 1347 (5 Cir.1988), certiorari denied sub nom. Offshore Exp., Inc. v. Johnson, 488 U.S. 968, 109 S.Ct. 497, 102 L.Ed.2d 533 (1988). Causation is a question of fact and the trier of fact’s determinations are entitled to great weight and cannot be disturbed absent manifest error. Martin v. East Jefferson General Hosp., 582 So.2d 1272, 1276 (La.1991); Anglin v. White, 572 So.2d 779 (La.App. 4 Cir.1990). Causation may be proved by either direct or circumstantial evidence, but the evidence must be sufficient to tilt the balance from possibility to probability. Anderson v. Whittaker Corp., 894 F.2d 804, 812 (6 Cir.1990).

Substantial Factor

Garlock claims that the trial court erroneously found that one asbestos fiber can cause mesothelioma, or that exposure to one fiber was equated with substantial causation. To prove legal cause, the plaintiff had to show that the defective or dangerous condition was a substantial factor in bringing about the resulting harm. Quick v. Murphy Oil Co., 93-2267 (La.App. 4 Cir. 9/20/94), 643 So.2d 1291, writ denied, 94-2583 (La.1/6/95), 648 So.2d 923. There can be more than one cause in fact, making multiple wrongdoers liable. Dixie Drive It Yourself System New Orleans Co. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962). The plaintiff must show that the defendant’s conduct was a “substantial factor” in 17bringing about the harm. Abadie v. Metropolitan Life Ins. Co., 00-344 (La.App. 5 Cir. 3/28/01), 784 So.2d 46. A substantial factor need not be the only causative factor; it need only increase the risk of harm. Spinks v. Chevron Oil Co., 507 F.2d 216 (5 Cir.1975); Haynes v. Calcasieu Medical Transp., Inc., 97-300, p. 6 (La.App. 3 Cir. 10/29/97), 702 So.2d 1024, 1028, writs denied 98-0355 & 0360 (La.3/27/98), 716 So.2d 888 & 889. Whether the defendant’s breach of a duty was a substantial factor in bringing about the plaintiffs injury is a question of fact. Id., 97-300, p. 6, 702 So.2d at 1029.

Asbestos Products

Garlock avers that Mr. Hennegan testified that he was exposed to asbestos products while doing maintenance work by pulling out tubes on boilers and working on brake lines. Pulling tubes required Mr. Hennegan to crawl into boilers. He also removed asbestos coating off the outside of boilers by hand, cutting it with a razor and pulling it off. Mr. Hennegan helped change asbestos brake linings on Cooper/T. Smith cranes. Changing the brake linings required grinding the brakes with a grinder. However, Garlock asserts that it did not manufacture any of the asbestos products to which Mr. Hennegan testified that he may have been exposed. Garlock maintains that it did not manufacture the insulation around the steam pipes, the firebricks in and around the boiler, or the brake linings on the cranes. Garlock argues that A.P. Green manufactured the insulation and firebricks, and it was undetermined who manufactured the brake linings.

IsGarlock claims that only some of its gaskets and packing contained asbestos, and that the Garlock products Cooper/T. Smith used contained only chrysotile asbestos, which had been medically proved not to cause mesothelioma. Garlock explains that Garlock’s gaskets and packing containing asbestos were encapsulated into another polymer, causing the asbestos to be non-respirable. Garlock submits that it is “only if or when the gaskets are ground that they can release any asbestos at all; the asbestos is encapsulated in the gasket and cannot be released.” Garlock asserts that it is undisputed that the only time the gaskets could have emitted any kind of asbestos was when they were being changed, and then only when the change required scraping, chiseling or power buffing.

Garlock’s Expert Witness, Dr. Allen Feingold

Dr. Allen Feingold, Garlock’s physician, lung expert and authority on asbestos-related diseases, testified that the release of fibers from Garlock gaskets was far below what is necessary to cause meso-thelioma, and it was scientifically impossible for one fiber to cause mesothelioma. He also stated that no amount of chrysotile asbestos fibers can induce mesothelioma.

Dr. Feingold made an analogy between mesothelioma and severe sunburn. He testified that severe sunburn is also a dose-related injury. Every exposure to the sun, no matter how slight, contributes to the injury. This means that every exposure to the sun, no matter how slight, is a substantial cause of severe sunburn. However, the vast majority of exposures are medically insignificant.

1 charlock’s Expert Witness, Carl Mangold

Garlock’s expert, an industrial hygienist, Carl Mangold, testified that exposure to asbestos emissions from gaskets used in valves were well within the range found in the ordinary environment, and were below the Occupational Safety and Health Administration (“OSHA”) and Environmental Protection Agency (“EPA”) standards. Mangold said he isolated the Garlock products to study them without the influence of all the other extraneous materials.

Mangold was unaware of a study by Smith and Wright in 1996 that was entitled “Chrysotile Asbestos is Main Cause of Plural Mesothelioma,” published in the American Journal of Industrial Medicine. Mangold agreed that dust falling out from operations would become airborne, and that any asbestos product in the area would add to the accumulation of dust on the floor. Mangold also agreed that a lack of ventilation increased the amount of asbestos respirable emissions in the boiler room.

Mangold asserted that the delay time for manifestation of mesothelioma was sometimes 30 or 40 years, and “the lower the dose the longer it seems to take before it’s manifested.” Mangold said, “You have to look at a person’s total exposure. In this particular case it’s difficult to do.” Mangold testified: “I would say it would be impossible for someone to take a codal sample like that, and say ah ha, this fiber came from that product and this fiber came from that product[;] you just simply can’t tell.” He agreed that the Garlock asbestos gaskets and packing |inproducts were the only ones he would exclude from the plaintiffs exposure as causative of his disease.

Garlock’s Expert Witness, Dr. Robert Jones

Garloek’s witness, Dr. Robert Norwood Jones, was an expert in internal medicine and pulmonary disease, specifically in asbestos related diseases. He concluded that Mr. Hennegan’s exposure from gaskets and packing was miniscule and made no real substantial contribution to his disease. Dr. Jones testified that Mr. Hen-negan’s childhood exposure to amphibole asbestos from the neighboring Johns-Manville (“JM”) Marrero plant would be more contributory to his disease due to its long latency period. The JM plant waste was used to construct driveways, sidewalks and filling in the area. Mr. Hennegan lived one-half mile away as a child. The waste or scraps contained asbestos materials that deteriorated over time, turned into powder, and allowed asbestos fibers to become airborne. They were inhaled by the residents living in the area.

Dr. Jones opined that levels of asbestos fibers released from gaskets in the derrick barge boiler rooms were miniscule compared to other workplace exposures. He stated that there is no way to prove or disprove that one fiber can cause the harm.

Garlock maintains that the plaintiffs expert, an animal cell biologist, Dr. Arnold Brody, agreed that even an individual with as much as 1,800,000,000 asbestos fibers in the lung has no increased risk of contracting mesothelioma, as that amount falls with the environmental range of ambient asbestos fibers in urban Inareas. Dr. Bro-dy agreed that some asbestos exposures are insignificant. Garlock argues that mesothelioma is a dose-related disease and that, the greater the dosage, the greater the risk. Garlock notes that the plaintiffs expert witness, Dr. John Dement, testified that all exposure, regardless of the amount, contributed to the risk. Garlock asserts that cumulative exposure increases the risk.

Garlock asserts that Mr. Hennegan did not know whether the gaskets he saw were Garlock gaskets, or whether the gaskets contained asbestos. Mr. Hennegan testified that he may have been present when the gaskets were changed once or twice. Garlock contends that Mr. Hennegan’s possible exposure, on one or two occasions, to encapsulated asbestos fibers contained in Garlock products, did not and could not have caused his mesothelioma.

Plaintiffs Expert Witness, Dr. John Dement

Plaintiffs expert, industrial hygienist John M. Dement, Ph.D., testified that it was impossible to rule out any of the exposures as causative of Mr. Hennegan’s disease although other exposures could also have caused the disease. Dr. Dement opined that the installation and removal of the asbestos gaskets and packings results in the release of significant amounts of respirable asbestos fibers. Dr. Dement asserted that the activities of removing gaskets and packings in a confined space increased the risk of exposure to the asbestos fibers. Dr. Dement referred to studies that showed exposures well below the established OSHA exposure guideline limits can cause mesothelioma. Very low doses of asbestos have been shown to cause mesothelioma. Dr. Dement noted that: “With asbestos, and some |12other materials as well, we do know that exposure is even to household members, based on [workers] taking contaminated clothing home, as a cause of mesothelioma.”

When asked about asbestos fibers encapsulated in the gaskets, Dr. Dement opined that:

But there are some studies that if you actually look on the surface of these gaskets, it’s true that the fibers are embedded in the matrix, but there’s also free ends of fibers that are actually on the surface. So they are capable of being removed when just typically handled.

Dr. Dement noted that in gaskets and particularly in packing, the matrix material tended to actually lose some of the binding material as they age. Mr. Hennegan was present when the gaskets and packings that had deteriorated in the boiler rooms were repaired and replaced or afterwards when the fibers were in the dust in the confined area. Dr. Dement agreed that data supports the conclusion that the removal of packing materials can result in the emission of respirable asbestos fibers. He agreed that published literature supports the finding that the packings become brittle and resulted in the emission of res-pirable asbestos fibers. Dr. Dement asserted that it would be more likely that the bystander would actually experience exposure in the confined space of the boiler rooms with little ventilation. The confined space contributed to the risk.

Dr. Dement concluded that Mr. Henne-gan’s exposure to Garlock asbestos gaskets and packing alone could have caused Mr. Hennegan’s mesothelioma. The exposure substantially contributed to causing Mr. Hennegaris mesothelioma.

113Plaintiff’s Expert Witness, Dr. Arnold Brody

Plaintiffs witness, Dr. Arnold R. Brody, was an expert in the field of cell biology and pathology as it relates to the development of asbestos. He stated that meso-thelioma is a disease that begins with a single fiber acting on a single cell, and it is impossible to state which of the individual’s multiple exposures was causative of mesothelioma. Dr. Brody explained that the pleura is a very thin membrane that makes an airtight sack out of the lungs that can expand with elastic connective tissue so the lungs remain flexible. However, mesothelioma causes a dramatically thickened pleura membrane around the lung. Asbestos fibers get into the lung cells and cause cancer, which is the result of mutations in genes that control cell growth. Over the years, there is a buildup of mutations where the cell finally escapes the body’s defense mechanisms and develops into cancer.

Dr. Brody testified that: “Everytime a person’s exposed, they’re adding individual fibers to the system and any one of those fibers can get to the target site and participate in the disease.” Dr. Brody stated that: “if a product releases asbestos, those fibers will participate in the process.” Dr. Brody explained that: “A single error caused by an original fiber is enough to initiate the process.” He |ustated: “So, any fiber that gets into the system can initiate a process that can lead to cancer.” He opined that a very low exposure can trigger mesothelioma in some people over time. Dr. Brody could not say which fiber or fibers started the disease mesothelioma. He agreed that any given exposure cannot be segregated to determine which exposure caused mesothelioma.

Dr. Brody agreed that it takes more exposure to chrysotile asbestos to cause mesothelioma than exposure to the amphi-boles, crocidolite and amosite. Dr. Brody stated: “I don’t know why getting them there in bursts or peak periods over years versus low exposures over time, it just wouldn’t occur to me that that should control whether or not someone gets mesothe-lioma.” He opined that chrysotile causes mesothelioma.

Chrysotile Asbestos

The record shows that Mr. Hennegan was exposed to asbestos fibers emitted from asbestos products made by Garlock as well as other manufacturers aboard the Cooper/T. Smith derrick barges he worked as a deckhand. Garlock’s expert pulmonologist, Dr. Feingold, stated that mesothelioma is not caused by chrysotile asbestos but is caused by crocidolite asbestos and other amphiboles. Garlock maintains that its products only contained chry-sotile asbestos. However, the plaintiffs experts, Dr. Dement and Dr. Brody, found that chrysotile asbestos is capable of causing mesothelioma, and has no minimum threshold dose.

11RPlaintiffs Witness, Victor Schmidt

Victor Schmidt, the maintenance supervisor during Mr. Hennegan’s employment, testified that Garlock’s gaskets and pack-ings were the kind most frequently used at Cooper/T. Smith. Schmidt looked at the pictures in documents attached to his affidavit, Plaintiffs Exhibit 3. He identified the logo, a ruler and caliper (the Garlock symbol), throughout the sheet packing. Schmidt remembered it because “we used it more than all the other ones. I mean, it was all over the sheets. This little symbol right here.”

Schmidt stated that there were “shelves of the stuff’ (asbestos products) on the steam cranes where Mr. Hennegan worked. Schmidt related that he was quite certain that on the derricks, the Gar-lock gaskets and packing contained asbestos. He said that it was necessary for workers to take a break during the removal of Garlock gaskets because a grinder produced so much dust. At trial Schmidt stated: “Everybody did everything together. Nobody just had one job and that was all.”

Garlock’s expert, Carl Mangold, agreed that the use of grinders to remove Garlock gaskets, would result in the emission of respirable asbestos fibers. However, he declared that the use of a grinder was an abuse of the product. He agreed that Garlock provided no warning against the use of a grinder to remove the gaskets. Schmidt stated that a grinder was the method used on gaskets and packing at Cooper/T. Smith.

11fiPlaintiffs Witness, Joseph Dugas

Joseph Baptist Dugas was a co-employee/deckhand who worked with Mr. Henne-gan. Dugas testified that Dugas frequently changed out gaskets and packings with Mr. Hennegan present. He saw Mr. Hen-negan perform these tasks. Dugas could not remember the brand names on the packings and gaskets; however, considering that Schmidt testified that Garlock supplied the gaskets and packings most frequently used, the trial court reasonably concluded that the workers changed various asbestos gaskets and packings that were produced by Garlock. Mr. Hennegan worked with other employees who changed Garlock products with asbestos in significant amounts.

Dugas and Schmidt testified that the handling of gaskets and packings resulted in lifting visible airborne fibers. Schmidt stated that to remove the gaskets, workers, including deckhands, sometimes used grinders. The trial court reasonably could infer that use of a power grinder by the workers resulted in the production of res-pirable asbestos fibers. The use of a grinder to remove the gasket and packing materials was a reasonably foreseeable use of the products. Whether or not Mr. Hen-negan used a grinder himself, he would have been exposed to fibers as a bystander during the grinding procedure, and/or afterward, when the asbestos fibers landed on the floor, the dust was swept and the fibers became airborne again in the confined area with little ventilation.

The record contains evidence upon which the trial court reasonably could find as a matter of fact that Mr. Hennegan was exposed to friable respirable 117asbestos fibers in Garlock products while he was working as a Cooper/T. Smith deckhand in the poorly ventilated boiler rooms on the derrick barges. There is no minimum established dose threshold for exposure to asbestos in causing mesothelioma.

Unreasonably Dangerous Per Se

Garlock avers that the presence of asbestos in a product does not render the product per se defective or unreasonably dangerous. Garlock referred to asbestosis cases: Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129 (5 Cir.1985); and Hardy v. Johns-Manville Sales Corp., 681 F.2d 334 (5 Cir.1982). The record in the present case contains evidence that the disease mesothelioma can be caused by minimum exposure to friable asbestos fibers emitted when the Garlock asbestos products were removed with the use of a grinder.

In Asbestos v. Bordelon, Inc., 96-0525, pp. 15-16 (La.App. 4 Cir. 10/21/98), 726 So.2d 926, 942, this Court stated:

“Unreasonably dangerous per se ” denotes a product that is defective due to the fact that the risk imposed on the user outweighs the social utility of the product. In other words, the product’s benefit to society is overshadowed by its potential for causing harm to the average consumer. However, evidence concerning the manufacturer’s conduct, knowledge or technology is irrelevant in this equation. [Citations omitted.]
The risk-utility test employed by the trier of fact is dependent upon whether the injury sustained by the plaintiff is attributed to the “normal use” of the product. Normal use is a matter of foreseeable use and may include something broader than operation exactly in accordance with the manufacturers instructions. Bloxom, 494 So.2d at 1304.[I]t is a term of art that includes all intended uses, as well as all foreseeable uses and misuses of the product. Page v. Gilbert, 598 So.2d 1110, 1116 (La.App. 4 Cir.1992), writ denied, 605 So.2d 1146 |1s(La.1992); citing Rey v. Cuecia, 298 So.2d 840 (La.1974); and Branch v. Chevron International Oil Co., Inc., 681 F.2d 426 (5th Cir.1982). When the victim or a third party engages in conduct that ignores or disregards an obvious or well-known danger, this conduct is not normal use. Whitacre v. Halo Optical Products, Inc., 501 So.2d 994, 999 (La. App. 2nd Cir.1987); Savoie v. Deere & Co., 528 So.2d 724, 733 (La.App. 1st Cir.1988), writ denied, 532 So.2d 177 (La.1988), (Emphasis theirs). While the manufacturer must provide a reasonably safe product, he does not insure against conduct not in normal use. Clark v. Jesuit High School of New Orleans, 96-1307 (LaApp. 4 Cir. 12/27/96), 686 So.2d 998, 1002. Hence, the injury resulting from normal or intended use of the product is just as essential in a products liability claim as the danger-in-fact of the product.

In an asbestosis case, Halphen v. Johns-Manville Sales Corp., supra, the Louisiana Supreme Court found that an asbestos product was unreasonably dangerous per se in referring to maritime strict products liability when the gravity of the harm outweighed the potential utility of the product.

In the present case, in its Reasons for Judgment, the trial court stated that maritime law recognizes strict products liability for unreasonably dangerous products. A product may be unreasonably dangerous if the risks associated with its use outweigh its utility, or, even if the utility outweighs the risk, the manufacturer fails to provide adequate warning of the risks. The trial court concluded that Gar-lock was strictly liable because the utility of the asbestos products is vastly outweighed by the risk of death associated with their use, and Garlock did not provide warnings of the risks.

Garlock’s expert, Carl Mangold, stated that the use of a grinder to dislodge the old gaskets when repairing or replacing them, was a misuse. However, the use of a grinder in this matter was reasonably foreseeable. Considering that there was testimony that a small exposure to asbestos emitted fibers could cause 113mesothelioma over time, the trial court did not err in finding that Mr. Hennegan’s exposure to the emission of friable asbestos in Garlock’s products, was a substantial contributing cause of the plaintiffs meso-thelioma. The trial court properly concluded that the Garlock products emitted res-pirable asbestos fibers when removed with a grinder. The fibers continually became airborne when the workers walked or swept in the boiler rooms without proper ventilation. The risk of harm outweighed the asbestos product’s utility, and the manufacturer provided no warnings of the risks. The trial court properly found that the Garlock asbestos products were unreasonably dangerous per se.

Failure to Warn

Garlock contends that the trial court erred in finding that it had a duty to warn because it was the employer Cooper/T. Smith’s duty to protect its employees from exposure to asbestos fibers. Garlock asserts that the duty to warn is passed entirely to the sophisticated knowledgeable purchaser, absolving the manufacturer of the duty to warn. Todd Shipyards Corp. v. Hercules, Inc., 859 F.2d 1224, 1225 (5 Cir.1988). The manufacturer’s duty to warn is discharged when the purchaser/user knew or should have known of any dangers associated with the product. Morgan v. Gaylord Container Corp., 1993 WL 205052 (E.D.La.1993).

In Pavlides v. Galveston Yacht Basin, Inc., 727 F.2d 330, 338 (5 Cir.1984), the Fifth Circuit stated:

It is a fundamental principle of the law of product liability in this Circuit that a manufacturer has a responsibility to instruct consumers as to the safe use of its product and to warn consumers of dangers associated with its product of which the seller either knows or should know at the time the product is sold. Borel [v. Fibreboard Paper Products Corp., 493 F.2d 1076 (5 Cir.1973), cert. denied, 419 U.S. 869, 95 S.Ct. 127, 42 hnL.Ed.2d 107 (1974),] at 1088-90; see Restatement (Second) of Torts, Section 402 A. comment j. In assessing what hazards are foreseeable, a manufacturer is held to the status of an expert. Borel, 493 F.2d at 1089. The lack of adequate warnings renders a product defective and unreasonably dangerous even if there is no manufacturing or design defect in the product. Martinez v. Dixie Carriers, Inc., 529 F.2d 457, 465-66 (5th Cir.1976); Reyes, 498 F.2d at 1272-73. [FN13 omitted]

In Asbestos v. Bordelon, Inc., supra, 96-0525, at p. 43-44, 726 So.2d at 955, this Court stated:

It is only when those hazards are obvious and expected, or when the consumer is distinctly aware of those hazards (sophisticated user) that a warning is not required. See Mozeke v. International Paper Co., 933 F.2d 1293, 1297 (5th Cir.1991). [T]here is no duty to warn sophisticated users of the dangers, which they may be presumed to know about because of their familiarity with the product.

This Court noted:. a sophisticated user possesses more than a general knowledge of the product and how it is used.” Id. at p. 44, 726 So.2d at 955. In Bordelon, this Court found that the shipyard, Avondale, was not a sophisticated user, and the manufacturer of the insulation material could not eliminate its duty to warn the plaintiffs. Id. at p. 45, 726 So.2d at 955.

In the present case, Garlock’s expert witness, Carl Mangold, agreed that awareness of the hazards of asbestos exposures during the time of Mr. Hennegan’s employment was less in the stevedoring industry than in shipyards. The trial court properly found that Cooper/T. Smith was not a sophisticated user of the product. The manufacturer, Garlock, had the duty to warn the buyer/employer and its employees of the hazards of asbestos exposures.

The trial court did not err in finding that Garlock had a duty to warn of the danger of using a grinder but also that Garlock had a duty to warn of the need to | ^implement industrial hygiene procedures while working with Garlock gaskets and packing. The trial court found that the use of a grinder to remove gaskets was a foreseeable use of the product. The foreseeable use of a product is a question of fact that will not be disturbed on appeal absent clear error. Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364 (La.1984).

Considering the conflicting evidence, the fact finder’s choice between them is not manifestly erroneous. Rosell v. ESCO, 549 So.2d 840 (La.1989). The trier of fact is vested with assessing the witnesses’ credibility. In its reasons for judgment, the trial court stated that: “The Garlock packings and gaskets ... to which Mr. Hennegan was exposed were both unreasonably dangerous per se and unreasonably dangerous by virtue of Garlock’s failure to provide warnings of the hazards associated with their use and the need to provide respiratory protection.” The trial court was not clearly wrong in finding that Garlock is strictly liable for substantially contributing to Mr. Hennegan’s mesotheli-oma, which was caused by exposure to asbestos from Garlock products.

Burden of Proof

Garlock argues that the plaintiff had the burden to prove that Garlock’s products substantially caused Mr. Hennegan’s disease. Instead, Garlock avers that the trial court shifted the burden to Garlock to prove that none of its fibers substantially caused his disease. Garlock submits that Mr. Hennegan’s exposure to gaskets and packing occurred in the boiler rooms on the derrick barges where he worked.

|22The plaintiff refers to Moak v. Link-Belt Co., 229 So.2d 395 (La.App. 4 Cir.1969), affirmed in pertinent part, reversed in part, 257 La. 281, 242 So.2d 515 (1970), in which, under a negligence tort theory, where two tortfeasors acted in such a manner that the conduct of either could have caused the plaintiffs injury, and it cannot be determined which defendant’s conduct was the actual cause of the injury, the burden shifted to the defendants to exonerate themselves. This Court stated:

In Meyer v. St. Paul-Mercury Indem. Co., 61 So.2d 901 (La.App.1952), a patient injured during an operation sued the oral surgeon and the anesthesiologist, and in fact the case proceeded on a res ipsa basis, with both defendants exculpating themselves.
In Arrington v. Hearin Tank Lines, 80 So.2d 167 (La.App.1955), plaintiff was damaged by fire resulting from the ignition of crude oil which had leaked from a storage tank owned by one defendant but being emptied into tank trucks owned by another defendant. Plaintiffs petition merely alleged control and supervision in both defendants, relying on res ipsa. The court held the petition stated a cause of action, and again, the case in fact proceeded on the theory that each defendant had to exculpate itself.
We conclude the rule of res ipsa lo-quitur warrants the inference that both American and Link-Belt were guilty of negligence causing the explosion, and that the inference is valid against each. Id., 229 So.2d at 409A10.

In the present case, the trial court did not shift the burden of proof to the defendant Garlock. The plaintiff had the burden to prove that Mr. Hennegan was exposed to asbestos fibers from Garlock’s products, and that the defect in the Gar-lock products, the emission of friable asbestos, was a substantial contributing cause of the Mr. Hennegan’s mesothelio-ma. The plaintiff showed that a small 123exposure to friable asbestos fibers from Garlock products substantially caused Mr. Hennegan’s mesothelioma over time, that Garlock did not provide warnings of the hazards of the use of its products, and that the Garlock asbestos products were unreasonably dangerous per se.

Solidary Liability

Garlock argues that the trial court erred in finding Garlock liable for all of Mr. Hennegan’s damages and by failing to apportion an appropriate share to the remaining defendants. Garlock maintains that under maritime law, damages are apportioned on the basis of proportionate fault. McDermott, Inc. v. AmClyde, 511 U.S. 202, 114 S.Ct. 1461, 1465, 128 L.Ed.2d 148 (1994). Damages are apportioned among all the defendants held liable regardless of whether they settled before trial. Id.; U.S. v. Reliable Transfer Co., 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975); Coats v. Penrod Drilling Corp., 61 F.3d 1113 (5 Cir.1995). Under the maritime rule of solidary liability, a tortfeasor may be held liable for more than its degree of fault. Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 99 S.Ct. 2753, 61 L.Ed.2d 521 (1979); Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 108, 94 S.Ct. 2174, 2178, 40 L.Ed.2d 694 (1974).

In the present case, the trial court held Garlock liable for all of the plaintiffs damages, but reduced the plaintiffs recovery by the 20 percentage of fault attributable to the settling defendant, Cooper/T. Smith. In its Reasons for Judgment, the trial court held:

Under maritime joint and several liability, if a defendant is found to have contributed at all to plaintiffs injury, even if that defendant’s fault contributed less than one percent to the injury, that defendant is liable unto | ¡.¿plaintiff for the whole of plaintiffs injuries. Since this Court has found that Garlock’s liability contributed to plaintiffs mesothelioma, Garlock is solidarily liable for the whole of plaintiffs injury even though other entities may have contributed more to plaintiffs mesothelioma than did Gar-lock. ...

The plaintiff asserts that in McDermott v. AmClyde, supra, the United States Supreme Court noted that under the principles of joint and several liability, the soli-dary obligation would require the non-settling defendant to bear the proportion of fault attributable to an absent tortfea-sor.

In Mayo v. Nissan Motor Corp., 93-852 (La.App. 3 Cir. 6/22/94), 639 So.2d 773, touts denied 95-0147, 0148 & 0160 (La.3/17/95), 651 So.2d 280 & 281, the Third Circuit held that limiting the plaintiffs’ recovery to percentages of fault attributable to the named defendants was inconsistent with maritime solidary liability. The Third Circuit held the two non-settling defendants liable for the fault attributed to the unnamed defendant, giving a credit only for the 11 percent fault actually attributed to the settling defendant. The non-settling named defendants were held solidarily liable for the whole of the plaintiffs’ damages, and received a credit for the percentage of fault attributed to the settling defendant. Under a claim of solidary liability, the risk of non-collecta-bility of the judgment against the party not named by the plaintiff rests with the solidary obligors. A solidary obligation provides that the risk of the inability to collect from joint tortfeasors rests with the defendant. Coats, supra.

The plaintiff points out that Garlock’s assertion that the percentage of fault should be proportioned with the missing tortfeasors would discourage settlements | gRin cases of solidary liability if a settlement would result in his inability to collect the whole of his judgment (less the percentage attributable to the settling defendant) from the remaining tortfeasors. In McDermott, supra, 114 S.Ct. at 1466, n. 10, the United States Supreme Court noted that under the principles of joint and several (solidary) liability, the non-settling defendant’s share of the judgment includes any fault attributable to immune or absent parties. We agree with the trial court’s determination in the present case that: “Garlock is solidarily liable for the whole of plaintiffs injury even though other entities may have contributed more to plaintiffs mesothelioma than did Garlock.”

Liability of Cooper/T. Smith

Garlock avers that the trial court erred in allocating only 20 percent of fault to Cooper/T. Smith. The factfin-der’s allocation of fault is subject to the manifest error standard of review. Clark v. Burchard, 2000-2750 (La.App. 4 Cir. 11/14/01), 802 So.2d 824. At the time that Mr. Hennegan worked as a deckhand for Cooper/T. Smith, the awareness of the need for protection for workers handling asbestos had not extended to the purchaser, Cooper/T. Smith, and the manufacturer had not provided warnings to Cooper/T. Smith. Where the manufacturers had not warned Cooper/T. Smith of the hazards of the use of their products, the trial court’s finding that Cooper/T. Smith was 20 percent at fault is reasonable.

Liability of A.P. Green

Garlock maintains that the trial court erred in finding that the settling defendant, A.P. Green, did not share any fault in causing Mr. Hennegan’s | ^mesothelioma. At trial the A.P. Green products identified were A.P. Green firebricks and a product known as “Super Hy-Bond.” The plaintiff introduced the deposition of Ellis Smith, a former A.P. Green employee/research engineer, who testified that A.P. Green firebricks did not contain asbestos. Mr. Smith testified that only a very small percentage of the cements manufactured by A.P. Green contained asbestos, and he did not identify Super Hy-Bond as one of A.P. Green asbestos products. The plaintiff notes that Garlock referred to the depositions of Victor Schmidt and Joseph Wolf, who identified A.P. Green products as containing asbestos; however, these depositions were not introduced into evidence. Garlock did not show that A.P. Green was at fault for exposure to A.P. Green’s asbestos products. The trial court did not err in not allocating a percentage of fault to the settling defendant, A.P. Green.

Liability of Amdura

Garlock claims that the trial court erred in finding that the settling defendant Amdura did not share any fault in causing Mr. Hennegan’s mesothelioma. Under maritime law, the burden of showing fault on the part of the settling defendants rests with the non-settling defendants. Borde-lon, supra.

Garlock did not introduce evidence that A.P. Green or Amdura were at fault. The plaintiff introduced into evidence the deposition of Carl William Ireland, a former employee of American Hoist, which was Amdura’s predecessor in interest. Mr. Ireland testified that American Hoist constructed the Cooper/T. Smith cranes from the 1930’s to the 1950’s. The only asbestos components were | ?,7asbestos brake pads that were manufactured by other entities and not American Hoist. Mr. Ireland testified that the asbestos brake pads met the industrial standard at the time, and American Hoist was unaware of any hazards with the use of the brake pads. Considering that there was no evidence that: (1) the manufacturers of the brake pads provided warnings of the hazards of their products, or (2) American Hoist was a sophisticated user of asbestos who should have known that the asbestos brake pads were hazardous, the trial court properly concluded that American Hoist acted as a reasonably prudent manufacturer of cranes in using the asbestos brake pads under industrial standards at the time. The trial court did not err in not allocating a percentage of fault to the settling defendant, Amdura.

Garlock raised the issue of the allocation of fault, but did not raise any other issues with respect to quantum. The amount of damages awarded is within the discretion of the trier of fact.

Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

TOBIAS, J., concurs with reasons.

I,TOBIAS, J.,

concurs.

I respectfully concur. Based upon the assignments of error by the appellant, I find the trial court’s judgment and reasons therefor neither manifestly erroneous nor clearly wrong.

      . The term "legal cause” is preferred to "proximate cause” in maritime tort law. Spinks v. Chevron Oil Co., 507 F.2d 216 (5 Cir.1975).

      . In Asbestos v. Bordelon, Inc., 96-0525 (La.App. 4 Cir. 10/21/98), 726 So.2d 926, 938, this Court noted:
      A person with pleural plaques or pleural thickening is also under an increased risk of contracting mesothelioma which is a cancer of the pleura. This cancer is untreatable and causes intractable pain because the tumor encases the lung and causes the person to die due to suffocation.
      In Austin v. Abney Mills, Inc., 2001-1598, p. 5 (La.9/4/02), 824 So.2d 1137, 1141-1142, the Louisiana Supreme Court noted:
      Dr. Roggli concluded that Mr. Hogue [plaintiff] suffers from malignant pleural mesothelioma, well-differentiated papillary epithelial variant, caused by exposure to asbestos. He stated that mesothelioma caused by occupational asbestos exposure is a disease that typically requires twenty years between the first exposure and its appearance upon diagnosis, that each exposure is cumulative in its effect, and that there is no known safe level of exposure to asbestos with respect to the development of mesothelioma.

      . His last name is spelled “Schmet” in the trial transcript.