text:
    Arnold STROSHEIN and Judith A. Stroshein, Appellants/Cross Appellees, v. HARBOUR HALL INLET CLUB II CONDOMINIUM ASSOCIATION, INC., a Florida not-for-profit corporation, Appellee/Cross Appellant.
    No. 81-1352.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 1982.
    Gene Moore, Boynton Beach, for appellants/cross appellees.
    Larry Klein, West Palm Beach, and Reed, Griffith & Moran, Boynton Beach, for ap-pellee/cross appellant.
   LETTS, Chief Judge.

Pursuant to a dispute between a particular condominium association and the developer of the entire complex, the trial court held the latter liable for repair of the tennis courts under Section 718.203(1)(c), Florida Statutes (1979). We affirm.

The trial court also held the developer/lessor entitled to receive continued lease payments (subject to a pro rata offset) from twelve owners who signed a “lease agreement” to pay him rent for the recreational facilities prior to the recording of the declaration designating them to be common elements. We reverse this second holding.

The developer claims that the trial court erred in determining that he was responsible to pay for repairs to the condominium’s tennis facility. Under Section 718.203(1)(c), a developer is deemed to have granted a three year implied warranty of fitness, commencing on the date of the completion of such an improvement. However, this warranty is released if the association fails to perform routine maintenance on the improvement. See Section 718.203(4). In the instant case, construction of the tennis court facility, which became part of the common elements, was completed in August 1978. When the association took control of the condominium in January 1980, cracks had already developed on the surface of the courts. Although the developer maintains that the association failed to perform routine maintenance on those courts, the record indicates that this type of hard asphalt court does not require maintenance if properly constructed. There is substantial competent evidence to support the theory that the cracks which appeared had no connection with lack of maintenance and occurred because the soil underneath the tennis courts settled as a result of improper drainage and an inadequate foundation. This being so we cannot substitute our judgment for that of the trial court.

The second issue before us is raised by the cross appeal. In essence, before the filing of the declaration of condominium, or its applicable amendment, the developer, who then still owned much of the entire complex, entered into a lease with twelve. contract purchasers in one specific building under which they would each pay $18 per month rent to the developer in return for use of the recreational facilities constructed in another building. Subsequently, these recreational facilities became part of the common elements of the other building when the declaration was recorded and as a consequence, title thereto passed to the unit owners at that time. Nonetheless, the developer is claiming continued entitlement to the rentals because of the prior lease agreement between himself as lessor and the twelve individual owners affected. On the other hand, the association claims those rents now belong to them.

The trial court found that the developer was entitled to continuation of the rents because all other purchasers were on notice of this lease by reason of a clause in a survey attached to the amended declaration, of which they were all given a copy. We agree that everyone was put on notice of the right of these twelve owners to use the clubhouse and pool and we uphold their right to continue to do so. We do not agree that the developer is entitled to a continuation of the rents, which we now hold by operation of law should properly be paid to the association.

Other than statutory limitations, there is nothing in the law which prohibits a developer from retaining the right to impose use restrictions upon common elements. However, that right must be expressly reserved in the declaration. Mayfair Engineering Co. v. Park, 318 So.2d 171 (Fla. 4th DCA 1975). The declaration sub judice reserved the right of the twelve unit owners from another building to use the recreation facilities, but it failed to specifically reserve rents to the developer and this failure clearly prevents the developer from being entitled to same. In Gray v. Callahan, 143 Fla. 673, 197 So. 396 (1940), the landlord conveyed property under lease and there arose a dispute as to who was entitled to the rent accruing thereafter. The Florida Supreme Court stated on page 197 So. 398:

The effect in general of a conveyance of the reversion is well expressed in 16 R.C.L. 641, as follows:
“After a landlord has transferred his reversion, all privity of estate between himself and his lessee is terminated, and his right to enforce covenants and agreements on the part of the lessee, not broken at the time of the transfer and which run with the reversion ceases; the right to enforce such agreements is then vested in the transferee of the reversion. Thus the right to rent accruing after the transfer of the reversion passes to the transferee, and the original lessor has no right to maintain an action against the lessee to recover the same, though he has expressly covenanted or agreed to pay rent to the lessor. The transferor of the reversion may, however, after the transfer, maintain an action upon the lessee’s contract to pay rent, if the same had fully accrued prior to the transfer, and he may in the transfer expressly reserve the rent for part of all of the term granted by the lease, in which case he may sue the lessee upon the contract the same as if there had been no transfer.”
As the deed from Collins, Gray’s former landlord, to Acor, Inc., contained no reservation of rents accruing thereafter, it amounted to a relinquishment by Collins of his rights to subsequently accruing rentals to his grantee, and the conveyance of the reversion by Acor, Inc., to Mrs. Callahan had the same effect. (Emphasis added).

The association admits that all individual purchasers of condominium units were advised in writing of the existence of the pre-existing recorded lease between the developer and the twelve unit owners. That advice, on a survey attached to the amended declaration, reads as follows:

Developer reserves the right to assign dock spaces to individual condo unit owners; clubhouse and pool area shall be shared with twelve condominium owners from Harbour Hall Condominium Number Two per lease agreement, so on and so forth, according to the official record book, 2030, page 382.

However this reservation does not speak to retention of rental payments. A mere conveyance made subject to an existing lease does not result in a reservation of rent unless it specifically says so. The developer cites us to the case of Sauder v. Harbour Club Condominium No. Three, Inc., 346 So.2d 556 (Fla. 2d DCA 1977), in support of his position and we agree it presents an analogous situation. Nonetheless, a close reading of that opinion does not reveal specific discussion of the question of reservation of rental payments after recordation of the declaration. Notwithstanding, if in fact there was such a reservation, we must respectfully disagree with Sauder.

AFFIRMED IN PART, REVERSED IN PART.

HERSEY and HURLEY, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Joseph Horace WRIGHT, Appellant, v. Isabel Anita WRIGHT, Appellee.
    Nos. 81-1502, 81-1556.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 1982.
    Robert J. O’Toole, Fort Lauderdale, for appellant.
    Larry Klein and Jane Kreusler-Walsh, West Palm Beach, and DiGiulian, Spellacy & DeChiara, Fort Lauderdale, for appellee.
   WILLIAM C. OWEN, Jr. (Retired), Associate Judge.

Appellant was held in contempt for his failure to pay certain installments of alimony and child support as required by the final judgment of dissolution. In accord with the teaching of Garo v. Garo, 347 So.2d 418 (Fla.1977) and Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976), the order of contempt contained an affirmative finding that appellant had a present ability to pay.

Appellant contends, on this appeal from the contempt order, that the finding of an ability to pay is unsupported by the record because no evidence on the issue of ability to pay was presented, the former wife testifying only as to the fact and amount of arrearage, and appellant electing not to attend the hearing. This argument is devoid of merit. In Faircloth v. Faircloth, supra, the Supreme Court put its imprimatur on a portion of the cogent dissenting opinion of Judge Robert P.. Smith, Jr. in the district court decision of the Faircloth case, which included the following language, totally dis-positive of the matter:

The burden is upon the party in default to prove not only that he is unable to comply with the court’s present order to pay but also that his present inability is due not to his fault or neglect but rather to circumstances beyond his control which intervened since the final decree ordering him to pay..
Upon the affected party’s failure to discharge his burden of proving that he is disabled to pay by reason of intervening factors not due to his own neglect or fault, the chancellor may find as a fact that he continues to be able to pay, as was originally decreed, or that any disability was self-induced, (e.s.)

339 So.2d 650, 652 quoting with approval from 321 So.2d 87 (Smith, J. dissenting).

AFFIRMED.

ANSTEAD and BERANEK, JJ., concur.


author: PER CURIAM.

text:
    Frank CLUGSTON, Appellant, v. Martha M. CURRY, Appellee.
    No. 81-1722.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 1982.
    Madison H. Cockman and Gilbert J. Mur-ry, Fort Lauderdale, for appellant.
    Larry Klein, West Palm Beach, for appel-lee.
   PER CURIAM.

Upon review of the record this court is of the view that the trial court erred in not finding that the claims of the appellee were barred by the doctrine of laches. In this case the appellee simply failed to present evidence of any intervening equities or excuses that would justify her inordinate delay in asserting her claims. Absent such evidence her claims are barred. Wadlington v. Edwards, 92 So.2d 629 (Fla.1957).

Accordingly, the judgment of the trial court is reversed and remanded with instructions to enter judgment for the appellant.

DOWNEY, ANSTEAD and BERANEK, JJ., concur.


author: LETTS, Chief Judge.

text:
    James L. SHELLMYER, Appellant/Cross-Appellee, v. Jane Seabolt SHELLMYER, Appellee/Cross-Appellant.
    No. 81-2218.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 1982.
    John R. Young of Hamilton, James, Mer-kle & Young, West Palm Beach, for appellant/cross-appellee.
    Robert A. D’Angio, Jr., of Haines and D’Angio, Chartered, North Palm Beach, for appellee/cross-appellant.
   LETTS, Chief Judge.

Before us is an appeal from a trial court ruling, restoring child support to comply with the provisions of the original final judgment of dissolution and setting aside a later out-of-court modification entered into by the divorced parents. We reverse.

The original final judgment of dissolution provided for monthly child support payments. Notwithstanding, the divorced parents subsequently entered into an out-of-court lump sum settlement. In lieu of past and future periodic child support, the father conveyed his equity interest in the former marital residence to the mother.

At a later date, the mother returned to court claiming that the law forbade the provision in the out-of-court agreement concerning child support because the basic right of a minor child to support cannot be affected by an agreement between the parties. Lang v. Lang, 252 So.2d 809 (Fla. 4th DCA 1971). See also Gammon v. Cobb, 335 So.2d 261 (Fla.1976).

We have no trouble agreeing with her claim and the supporting case law under the facts of this case although it would appear that in such event the parties should be returned to the original status quo. In fact, such a return to their original positions was contemplated here. We are of the opinion that the lawyers stipulated that the husband should receive a credit for his remaining equity in the marital residence which he had previously renounced, in return for resumption of the child support from the date of its cessation.

Notwithstanding the stipulation, the trial court did not give the father any credit for his interest in the marital residence, and marched off to a different drummer of its own. For this we do not blame it, for there was much confusion in the record as to who said what to whom. However, upon examination of the transcript, which the trial judge did not have the benefit of, we find that both sides agreed to arrearages totaling $2,677.44. We hereby remand this cause for entry of a judgment in that sum which will replace and be instead of the trial court’s chosen figure of $7,920.00 which latter allowed no credit for the remaining interest in the former marital residence.

Another issue on appeal is that the trial court erred in awarding a prospective increase in the child support without considering the father’s financial ability to pay it. We agree this was error. See Reid v. Reid, 396 So.2d 818 (Fla. 4th DCA 1981), cert. denied, 402 So.2d 612 (Fla.1981), and remand this cause for consideration of the evidence and the testimony on this issue. We would comment on the court’s reasoning in this regard which was that any attention which might be given to any obligations on the father’s part affecting his ability to pay would be “ridiculous.” As the court reasoned, any father could deliberately render himself incapable of support by buying a Rolls Royce! Maybe so, but certainly the question of whether he contracted to pay for a Rolls Royce or contracted a dread and expensive disease, is hardly ridiculous and must be enquired upon by the trial court. This part of our holding does not seek to limit the trial judge from increasing the payments upon remand, if the father’s testimony and evidence will permit it without an abuse of discretion.

The question of failure to permit evidence of the husband’s ability to pay also appears to be pertinent to the mother’s cross-appeal. The mother alleges that the trial court had no right to postpone the payment of the arrearages as it did here. She wants them now. In our view, if the husband has $2,677.44 readily available, she may be right. As it stands, we do not know whether the father has instant cash or not. However, we note that the method of paying arrearages is normally left to the sound discretion of the court. Smithwick v. Smithwick, 343 So.2d 945 (Fla. 3d DCA 1977); Gottesman v. Gottesman, 220 So.2d 640 (Fla. 3d DCA 1969). Moreover, in the instant case, the arrearages were not occasioned by the father’s sloth, but largely by an out-of-court agreement which the mother entered into of her own free will. We, therefore, remand this cause for further consideration of the husband’s financial ability to pay the arrearages in a lump sum, but by no means seek to restrain the trial judge from arriving at the same result as he did before as the circumstances may dictate.

We, thus, reverse and remand this cause for entry of an amended judgment fixing the arrearages at $2,677.44. We also remand it for consideration of how and when the arrearages must be paid and for further consideration of the father’s ability to pay increased child support prospectively.

REVERSED AND REMANDED.

HERSEY and DELL, JJ., concur.

      . The lump sum settlement also encompassed obligations accrued by the father for items other than prospective periodic child support, but the child support constitutes the gravamen of the present controversy.

      . We are urged by the father to revisit the question of whether the parties can enter into a contract amending the method of child support set by the court. We decline to do so under the facts of this case, however, it might be that such an amendment could be enforced under certain circumstances. Suppose, for example, the husband substituted periodic monthly child support payments of $2,000 per month over five years, for a cash settlement in the sum of $200,000. We are also troubled by the obvious fact that under the terms of any original property settlement agreements, the parties frequently agree to the amount of child support and such agreements go unchallenged. Thus, if they can privately fix the amount in the beginning without case law concern for the child, why should any amendment be always unenforceable? In this connection, we would point to several cases which support waiver and permit the right to amend providing the best interests of the children are safeguarded. Warrick v. Hender, 198 So.2d 348 (Fla. 4th DCA 1967); Schinall v. Pergeorelis, 325 So.2d 431 (Fla. 1st DCA 1976); Davis v. Davis, 123 So.2d 377 (Fla. 1st DCA 1960). See Blum v. Blum, 382 So.2d 52 (Fla. 3d DCA 1980).


text:
    Alfonso PERRY, Petitioner, v. FLORIDA PAROLE & PROBATION COMMISSION, Respondent.
    No. 81-2232.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 1982.
    Alfonso Perry, pro se.
    Rosa H. Carson, Asst. Gen. Counsel, Tallahassee, for respondent.
   PER CURIAM.

Petition for writ of habeas corpus denied. See Smith v. Crockett, 383 So.2d 1166 (Fla.3d DCA 1980).

ANSTEAD, HERSEY and HURLEY, JJ., concur.


text:
    DAIRYLAND INSURANCE COMPANY, and Daniel Young, Appellants, v. Gary MARCOTTE, Appellee.
    No. 82-31.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 1982.

      Richard A. Sherman of Wicker, Smith, Blomqvist, Davant, Tutan, O’Hara & McCoy, Miami, and Scott A. DiSalvo of Fazio, Dawson & DiSalvo, Fort Lauderdale, for appellants.
    Edmund C. Sciarretta of Sciarretta, Jackvony & Buresh, Fort Lauderdale, for appellee.
   PER CURIAM.

Appellants ask us to reverse a post judgment order which vacated a summary judgment, and they claim appellee is not entitled to relief based on newly discovered facts. The problem presented by this case was solely caused by an investigating officer being given the incorrect name of a party involved in an automobile accident on July 13, 1979. The resulting labyrinth was cleared eventually by the trial judge with an ultimate proper result, however procedurally disjointed. Accordingly, we affirm.

Appellee was the plaintiff and sued for damages resulting from the accident. The operator of the other vehicle was Michael Kapp, whose deposition can only be described as murky in describing how Michael Kapp became “William Ben Allen” immediately after the two vehicle incident. Appel-lee sued the rent-a-car agency, which owned the vehicle Kapp was driving; appellant Young, to whom the vehicle was rented; and “William Ben Allen,” allegedly driving with Young’s consent.

Young was awarded summary judgment in December, 1980, based on his affidavit that he did not know any “William Ben Allen” nor did he know or consent to his driving the rented vehicle. Months later, Kapp’s deposition, which was taken after appellee was finally able to serve him with process, established that Young actually knew Kapp, a real estate associate who located an apartment for Young’s friend, Susan Faucon, while Young was in Florida the first days of July. Kapp testified that he thought he had driven the vehicle several days prior to the accident with Young and Faucon in it as passengers; that Young left Faucon the vehicle to assist her; and that he thought Young authorized his driving and knew he would be doing so because Faucon was not a good driver. Kapp further testified that he talked to Young about the accident a month or two after the accident.

Before Young was awarded summary judgment, he answered two sets of interrogatories. The first set of answers was served on October 9, 1980, identifying Kapp as a person having knowledge of the facts. The second set, served six days before the hearing on summary judgment, said that Susan Faucon was authorized solely to return the vehicle to the rent-a-car agency on July 9th; acknowledged that Young knew Kapp; denied ever permitting Kapp to drive the vehicle; and said that “by hearsay” he understood Kapp may have driven it.

It is as plain as day that had the correct name, Michael Kapp, been given at the time of the accident, appellee would have sued Kapp and would have alleged that Kapp— not Allen — was driving the vehicle with Young’s knowledge and consent. When Kapp’s deposition was later taken, he had been identified and served with process. Assuming appellee, having received Young’s answers to interrogatories, should have sought to depose Kapp prior to the hearing on summary judgment, Kapp was then a witness, not a party. In brief, appel-lee had a cause of action against Kapp from and after July 13th and was entitled to the benefits of all remedies against him as a party — not as a witness — including prompt service of process and the ease of discovery thereafter.

In the order awarding Young summary judgment, the trial court allowed appellee to amend his complaint, which he did, asserting that Allen, also known as Kapp, was driving the vehicle with Faucon’s knowledge and consent and with Young’s “implied consent.” Appellants moved to dismiss, asserting that the trial court had already disposed of the consent issue. The trial judge granted the motion; however, he again allowed appellee to amend within sixty days and further said:

3. Nothing in this Order shall be construed as to prevent the plaintiff from seeking any remedies plaintiff may possess pursuant to F.R.C.P. 1.540.

Unfortunately, we have no transcript of the hearing on the motion so we have no way of knowing what the trial judge knew at that point. We know only that the hearing on the motion was held on March 30, 1981; that Kapp’s deposition was taken fifteen days later; and that the order on the motion was entered one day after the deposition.

Appellee did not amend; and even if he had amended by dropping all reference to Allen and alleging Young’s knowledge and consent, rather than his implied consent, that apparently would have been fruitless because the issue of consent seems to have been foreclosed. Instead, appellee waited until three days after entry of final judgment and filed an “amended motion to vacate summary judgment, order and final judgment” pursuant to Fla.R.Civ.P. 1.540. He asserted that newly discovered evidence existed — namely that contained in Kapp’s deposition — which could not have been asserted at the time of hearing on summary judgment because it was unknown. The trial judge granted appellee’s motion.

We affirm primarily because of our concern with the administration of justice; and justice would not have been served if the trial court had permitted appellants to use to their advantage the labyrinth solely caused by the apparent fictitious name, William Ben Allen, which appeared on the accident report. The trial judge was experienced and knowledgeable and must have seen what we perceive; namely, that the fictitious name tainted every critical aspect of the action — the complaint, the delay in service of process and discovery, the order on Young’s motion for summary judgment and the subsequent order which dismissed the amended complaint.

The order being appealed presented a matter that was within the judicial discretion of the trial court. Alexander v. Fiftieth Street Heights Co., 334 So.2d 161 (Fla.3d DCA 1976), and we find no abuse thereof. Appellants are essentially asking us to hold that because Young’s answers to interrogatories, served two months before the hearing on summary judgment, listed Michael Kapp as a person who had “personal knowledge of the facts and circumstances surrounding the incident,” diligent investigation by appellee would have spread on the record within those two months, by deposition or affidavit, that it was Kapp, not William Ben Allen, who was the driver at the time of the accident and that his driving was with Young’s knowledge and consent. This ignores the reality of the situation facing appellee. He believed he had the proper identity of the driver — William Ben Allen! What was the urgency in learning what facts Kapp may know? Young’s other answers do not even show him as a witness to the accident.

Accordingly, we affirm.

LETTS, C. J., and DOWNEY and GLICKSTEIN, JJ., concur.


text:
    VILLAGE HOME BUILDERS, INC., and George T. Kelly, IV, Appellants, v. NPB HOLDINGS, INC., Appellee.
    No. 82-111.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 1982.
    Bruce Zeidel of Cohen & Scherer, P. A., North Palm Beach, for appellants.
    David L. Gorman of Gorman & Horvath, P. A., North Palm Beach, for appellee.
   PER CURIAM.

This is an appeal which we treat as a petition for writ of certiorari and deny.

LETTS, C. J., and ANSTEAD and DELL, JJ., concur.


text:
    STATE of Florida, Appellant, v. Terry Scott LOOMIS, Janet Carol Loomis, and Donovan Richard Peters, Appellees.
    No. 81-2129.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Leo A. Fox of Fox & Fox, P. A., Boca Raton, for appellee, Donovan R. Peters.
   ON REHEARING

PER CURIAM.

This is an appeal by the State of Florida from an order granting a motion to suppress marijuana found in the garage of a home at which the defendant, Donovan Richard Peters, was a guest. The home was occupied and leased by defendants, Mr. and Mrs. Loomis, and Mr. Peters was, at most, a social invitee on the premises. He had apparently been invited to the premises by Mr. Loomis, whom he did not know, when he met him at the beach. The defendant, Peters, was in the back yard in the midst of four to five-foot high marijuana plants which were easily observable from public view. He was arrested and charged with possession of the growing plants and with possession of other marijuana found in the garage. The police did not secure a warrant before entering the yard or garage. The police did contact the State Attorney’s Office regarding a warrant but were advised that one was not necessary.

We conclude that under Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), and United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), defendant, Peters, lacked standing to challenge the seizure of the contraband, and the order of the trial court suppressing the evidence is vacated and set aside as it relates to Peters.

The State’s attack on the suppression order as it relates to defendants, Loom-is, is without merit. The State conceded the standing of these parties before the trial court. The recent case of State v. Rickard (Fla.1982), Case No. 54,877, issued April 29, 1982, is controlling and required suppression of the marijuana seized from the garage of the Loomis home without a warrant under the circumstances wherein a warrant could obviously have been secured. We make no ruling on the portion of the trial court’s order which partially denied the motion to suppress as to all defendants. The matter is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

DOWNEY, BERANEK and WAT,DEN, JJ., concur.


author: CURTIS, CLINTON A., Associate Judge.

text:
    Andrew RUSSO, Appellant, v. STATE of Florida, Appellee.
    No. 81-2222.
    District Court of Appeal of Florida, Second District.
    Sept. 1, 1982.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., Tampa, for appellee.
   CURTIS, CLINTON A., Associate Judge.

Andrew Russo challenges his conviction for two counts of witness tampering. He was accused of attempting to induce two persons, Anna Chisholm and John Tillis, to testify falsely in an impending trial.

We must reverse the trial court’s judgment of guilt and ten year sentence because cross-examination of Tillis was restricted and impeachment testimony of defense witnesses against Tillis was excluded.

John Tillis was a crucial witness without whom the state’s case would have been greatly weakened, in that he was the only witness to testify that Russo offered to pay him to testify falsely. Yet, the trial court sustained the state’s objections to proffered testimony and ruled that defense counsel could not ask Tillis about his own past attempts to testify falsely and to make himself unavailable as a witness in previous litigation.

In addition, testimony of three witnesses who were involved in Tillis’ past misconduct was excluded by the trial court on the basis that they would not be testifying as to any facts surrounding the instant case and that they were not character witnesses.

We can find no justification for the restriction of appropriate cross-examination and exclusion of the testimony of these three defense witnesses. Because Tillis’ story was so crucial to the state’s case, omission of any evidence relating directly to his credibility was harmful and prejudicial to the defense. Godorov v. State, 365 So.2d 423 (Fla. 2d DCA 1978), cert. denied, 376 So.2d 76 (Fla.1979); Williams v. State, 386 So.2d 25 (Fla. 2d DCA 1980).

Therefore, the judgment and sentence must be reversed and the cause remanded for a new trial.

DANAHY, A. C. J., and SCHOONOVER, J., concur.


author: DIXON, Chief Justice. CALOGERO, Justice, MARCUS, Justice BLANCHE, Justice DIXON, Chief Justice. LEMMON, J., MARCUS, Justice BLANCHE, Justice PER CURIAM.

text:
    Huey P. ADAMS v. NEW ORLEANS PUBLIC SERVICE INC.
    No. 81-C-0784.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
    On Rehearing Aug. 4, 1982.
    Dissenting Opinion Aug. 30, 1982.
    Rehearing Denied Sept. 3, 1982.
    Ronald L. Wilson, New Orleans, for plaintiff-applicant.
    A. R. Christovich, Jr., New Orleans, for defendant-respondent.
    Joel P. Loeffelholz, New Orleans, (Ami-cus Curiae).
   DIXON, Chief Justice.

This is a workmen’s compensation case involving a claim of disability from attacks of angina pectoris.

Recovery was denied by both the trial court and the Court of Appeal. The appellate court held that plaintiff’s episodes of angina were due to arteriosclerosis and were not work related. 395 So.2d 470 (La. App. 4th Cir. 1981).

Plaintiff worked for over thirty years as an automotive mechanic for various employers. On April 3, 1978 he was hired as a mechanic by defendant New Orleans Public Service Inc. at an hourly wage of about $6,155. After working for approximately three months, plaintiff began experiencing shortness of breath and chest pains at work. Plaintiff testified that while repairing an exhaust system on one of the NOPSI buses, he began to feel hot and sweaty, short of breath, nauseated and as if he had “a heavy weight on my chest.” When his wife picked him up from work, he told her of the dizziness and nausea.

Plaintiff continued working, attributing the episode to indigestion and exhaustion. About two weeks later, on July 1, plaintiff was working the night shift. He once again experienced pains in his chest, nausea, profuse perspiration and a heavy smothering in his chest. A co-worker, David Cornes, testified that plaintiff told him he felt as if he had indigestion and “was feeling real bad.” Mr. Cornes agreed to do all of the more strenuous work, leaving plaintiff to simply drive the buses back and forth to be checked and refueled.

Upon reaching home the next morning, plaintiff related his symptoms to his wife. She convinced plaintiff to go to the hospital on the following day. On Monday, July 3, plaintiff was admitted to the hospital. An electrocardiogram, chest x-rays, blood tests and a stress test were run and normal results obtained. The treating physician, Dr. Oei, diagnosed plaintiff as having suffered angina pectoris due to arteriosclerosis.

Generally speaking, angina pectoris is pain located in the chest area. It is usually caused by an insufficient supply of oxygen to the heart muscle. Arteriosclerosis is a condition marked by a loss of elasticity, thickening and hardening of the arteries. Angina pectoris is often associated with arteriosclerosis because the thickening of the arteries results in a reduction of the blood supply to the heart which in turn causes pain or angina.

Dr. Oei advised plaintiff not to engage in any hard physical labor. Plaintiff asked to return to work for NOPSI on a light duty basis. NOPSI rejected plaintiff’s request. According to NOPSI’s maintenance manager plaintiff was still a temporary employee and NOPSI policy prohibited the transfer of temporary employees from regular duty to light duty.

Under our workmen’s compensation law, plaintiff is entitled to compensation benefits if he has suffered “personal injury by accident arising out of and in the course of his employment.” R.S. 23:1031. An “accident” is defined as “an unexpected or unforeseen event happening suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury.” R.S. 23:1021(1). The statutory definition limits “injury” to “injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom. These terms shall in no case be construed to include any other form of disease or derangement, howsoever caused or contracted.” R.S. 23:1021(6).

This court had occasion to discuss at length the meaning of these terms in Ferguson v. HDE, Inc., 270 So.2d 867 (La.1972). In Ferguson, the plaintiff had been working for the defendant employer about two weeks when he received his pay check. The check was for an amount much less than plaintiff had expected. He became enraged and went to the office to complain, during the course of which he felt a flash of pain followed by paralysis. We found that the plaintiff had suffered an injury arising out of and in the course of his employment. Although not subjected to any blow or trauma, nor injured due to physical stress or strain, he unquestionably suffered “violence to the physical structure of the body.”

The Ferguson opinion referred to the workmen’s compensation statutory scheme of Great Britain upon which the American workmen’s compensation statutes are based. This court found that the British approach to determining whether a disability occurred “by accident” involves an examination of whether there is an accidental result or effect on the employee, rather than whether the disability had an accidental cause. Utilizing that approach, we held that where an injury occurs suddenly and unexpectedly, it is compensable despite the absence of any physical stress or exertion. Thus, we have held without hesitation that a heart attack is a compensable accident within the meaning of our workmen’s compensation law. Roussel v. Colonial Sugars Co., 318 So.2d 37 (La.1975).

In the case before us, plaintiff’s disability occurred by accident. Although not subjected to extraordinary stress or exertion at the time of the attacks of angina pectoris, the attacks themselves came suddenly and unexpectedly, causing violence to the structure of plaintiff’s body. The episodes happened without warning and in the course of plaintiff’s employment.

Defendant contends that plaintiff’s claim is not compensable because the angina pec-toris resulted from arteriosclerosis, a condition of the arteries which had gradually worsened over the years, rather than a sudden trauma. Defendant’s position is untenable. The instant case is virtually indistinguishable from Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 221 So.2d 816 (1969). In Bertrand, the plaintiff suffered an episode of weakness, dizziness or near fainting while working as a laborer. He was diagnosed as having had a nodal tachycardia. About one year later, plaintiff’s heart again began to beat erratically and he almost “blacked out,” falling to his knees. Defendant denied plaintiff’s claim for workmen’s compensation, arguing that plaintiff suffered an attack of angina pec-toris and that the real cause of plaintiff’s disability was arteriosclerosis. The medical testimony revealed that the symptoms were due to a sclerosis or restriction of the arteries which fed the heart muscle so that an insufficient quantity of blood reached the heart during periods of exertion. Plaintiff was diagnosed as having suffered “either angina pectoris (‘chest pain’ from a coronary insufficiency) or possibly even a slight occlusion.” 221 So.2d at 826. This court held that plaintiff had suffered a compensa-ble injury by accident although the attack was precipitated by the gradual thickening of the vessel walls. We stated:

“. .. What has happened to the plaintiff, according to all of the medical testimony, is that his total physical being and capacity have so changed that because of the symptoms exhibited (tachycardia or angina pectoris) and the preexisting disease (defective atrioventricular node or coronary sclerosis) he cannot return to work of a character similar to that which he had successfully done without pain, complaint, or disability for 16 years before the first episode and for nine months after it” 221 So.2d at 827.

It makes no difference that the claimant in Bertrand fell to his knees with pain. Both the plaintiff in Bertrand and plaintiff in the present case experienced an episode of angina pectoris with outward manifestations observable to those nearby.

Defendant seeks to distinguish Bertrand on the ground that the plaintiff in that case may have suffered a slight occlusion. This distinction lacks merit. The Bertrand opinion indicates that there was considerable doubt as to whether the plaintiff had suffered any occlusion at all. The wording of the opinion is that the plaintiff suffered either angina pectoris or possibly even a slight occlusion. It is evidence from this language that the court did not rest its decision on a finding that the plaintiff had experienced an occlusion.

It is well known in the medical field that arteriosclerosis may lead to various consequences including angina pectoris, heart failure, myocardial infarction and even sudden death. If plaintiff had suffered a myocardial infarction (one of several events commonly called a “heart attack”) as a result of arteriosclerosis, there would be no question but that a compensable injury had occurred. Roussel v. Colonial Sugars Co., supra. Here, plaintiff suffered from angina pectoris while on the job, brought on by the failure of his heart muscle to receive an adequate supply of oxygen. Both heart attacks and episodes of angina pectoris may be caused by an inadequate oxygen supply to the heart muscle. Both are recognized by the same symptoms, the main difference being that the pain experienced during an infarction is generally more severe and of a longer duration. Given these similarities, there is no justification for granting compensation in the first situation while denying plaintiff recovery.

The Court of Appeal held that plaintiff could not recover because no incident or series of incidents during plaintiff’s employment caused the arteriosclerosis or the episodes of angina pectoris. That analysis of causation is faulty. Where there is proof of an accident and of a following disability without any intervening cause, it is presumed that the accident caused the disability. When dealing with a claim for workmen’s compensation, we have repeatedly stated that it is irrelevant whether the accident might have occurred at another place and at another time. The only pertinent inquiry is whether in fact, the accident happened on the job. As enunciated in Bertrand, the test for causal connection is: “Has the accident changed the plaintiff’s condition so as to render him disabled and unfit for his former employment?” 221 So.2d at 827. In this case, the question must be answered in the affirmative. All of the medical testimony is to the effect that plaintiff can no longer work as an automotive mechanic. Before the attacks of angina, plaintiff, though suffering from arteriosclerosis, exhibited no disabling symptoms. Having experienced the episodes of pain, all medical experts concur that plaintiff must desist from strenuous work. Therefore, plaintiff has established the causal link between the accident and the disability.

We find that the penalties and attorney fees provided in R.S. 23:1201.2 are not warranted in this case. Plaintiff did not inform his supervisor or any fellow employee of the first angina attack. He returned to work the following day and continued working full time until the next episode. Although plaintiff did mention the subsequent episode to a co-employee, he stayed on the job until completion of his shift. When admitted to the hospital, plaintiff’s wife telephoned a supervisor to notify NOPSI that plaintiff would not be able to come to work that day. NOPSI instructed plaintiff’s wife to report every morning whether or not plaintiff would be coming to work. From the record before us, no information was given to NOPSI that should have alerted it that plaintiff was absent, not from a “normal illness” or a “non-occupational illness,” as one witness put it, but from a job related accident or injury. NOPSI’s failure to commence paying benefits within sixty days under these circumstances was not arbitrary, capricious or without probable cause.

For these reasons, the judgment of the Court of Appeal is reversed, at defendant’s cost, and there is now judgment finding plaintiff partially disabled; under R.S. 23:1221(3), plaintiff is entitled to receive sixty-six and two-thirds per centum of the difference between the wages he was earning at the time of the injury and any lesser wages earned by him thereafter for a period not to exceed four hundred fifty weeks. Therefore, judgment is rendered in favor of plaintiff and against defendant in the weekly amount of $164.13 for four hundred fifty weeks.

CALOGERO and MARCUS, JJ., dissent and assign reasons.

BLANCHE, J., dissents and hands down reasons.

CALOGERO, Justice,

dissenting.

I dissent being of the view that Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 221 So.2d 816 (1969) is not controlling in this case, and that plaintiff has not met his burden of proof in establishing some causal link between the employment and the disabling event.

In Bertrand, the claimant had been working for the same company for over sixteen years prior to the time his disability manifested itself. He had also been checked by a doctor only a few years prior to the onset of his disability and had been found to be free from any heart problems. Furthermore, there was specific evidence that the claimant in Bertrand performed very strenuous duties on a daily basis. Mr. Bertrand suffered chest pains causing collapse while in the middle of lifting a heavy object on the job.

In contrast, in the instant case, the plaintiff, although he had been employed as an automotive mechanic for thirty years, had only been working for the defendant for three months. There was no evidence of a healthy condition prior to his employment at New Orleans Public Service, and little evidence of the strenuousness of his job other than that he worked outside as a mechanic on buses. Mr. Adams made no report to his employer of any pain or injury at the time he allegedly felt the pain, but rather, made the report some time later.

As pointed out in Malone and Johnson’s Louisiana Civil Law Treatise, Workers’ Compensation, § 215 (1980), while it is recognized that a claimant’s burden of proof in these types of cases (heart problems) has been greatly relaxed, “[s]uch cases should not be regarded as dispensing with the requirement that the claimant establish some causal link between the employment and the disabling event.”

Because I do not believe that the causal link between the employment and the disabling event has been established in this case, I dissent.

MARCUS, Justice

(dissenting).

Under the facts of this case, I do not consider that plaintiff suffered a “personal injury by accident” arising out of and in the course of his employment. Hence, his employer is not obligated to pay compensation. To the extent that Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 (1969), is to the contrary, it should be overruled. Accordingly, I respectfully dissent.

BLANCHE, Justice

(dissenting).

Plaintiff, a temporary worker with New Orleans Public Service, Inc., suffered from angina pectoris during the time of his employment. He suffered no accident and his condition came about because of his arter-iosclerotic condition, which appeared long before he was employed by New Orleans Public Service, Inc. Angina is not a disease; it is a symptom of plaintiffs arteriosclerosis.

The opinion finds that the angina attack on the job was an accident because plaintiff was not expecting one at that time. This is probably correct because he surely was not doing anything different on the job than he had done for the past 30 years. His symptoms and disability were not caused by any accident, and finding one here (or in Bertrand, relied upon by the majority) is, in this writer’s opinion, unwarranted.

The Workmen’s Compensation Act is not a hospital plan nor social security program. It may be that when a worker such as Bertrand, in stressful employment over a long period of time, is disabled, the Workmen’s Compensation Act should care for him. That is a legislative function and surely not a judicial one to stretch the Act to provide compensation without statutory basis and because one may have sympathy for the disabled worker.

New Orleans Public Service, Inc. gets to be “IT” because it was plaintiff’s last employer when disease prevented his further productive employment.

I respectfully dissent because his disability was not caused by accident as defined in the Workmen’s Compensation Statute.

ON REHEARING

DIXON, Chief Justice.

Several considerations prompted granting a rehearing in this case. One was to reconsider the causal link between Adams’ employment and his attacks of angina pector-is; one was to reconsider the causal relationship between the angina incident and the disability; a third was to reconsider some expressions in the original opinion.

Further study of the issues in the case has led the majority to reinstate its original judgment finding plaintiff entitled to compensation for partial disability.

1

The medical evidence was unanimous concerning the cause of angina pectoris. Stress, physical, mental or emotional causes body cells to demand more oxygen, which is carried by the blood. The increasing circulation causes the heart to work harder, which causes the heart muscle, itself, to need more oxygen. The arteries delivering blood to the heart, their walls thickened and their internal diameters diminished by the process of arteriosclerosis, fail to supply blood to the muscle cells of the heart; the approaching necrosis of those cells triggers the painful warning of “angina pectoris.”

Adams’ work was at times strenous. His first episode was on a hot night when he was removing and replacing the exhaust system of a bus. His second episode was on a similar hot night while servicing the vehicles. On the nights when he was required to service the large wrecker which hauled in disabled buses (and Adams believed his last night was such a night), Adams and his co-worker had to carry five gallon cans of diesel fuel from the pumps to the wrecker, which was too large to move near the pumps.

The defendant did not argue that Adams’ work was not strenuous, but that his angina pectoris was caused, not by his employment, but by arteriosclerosis. Arteriosclerosis is a condition which may develop over a period of many years; it is a process of thickening and stiffening of the walls of arteries, and has been found in the bodies of young men. But the fact that a preexisting condition makes a workman more susceptible to injury than a healthy worker does not disqualify the injured worker from receiving compensation. “. . . an injured worker is still entitled to compensation even though the work accident would not have been disabling to the average healthy employee...” Allor v. Belden Corp., 393 So.2d 1233, 1236 (La.1981). It is clear that the heat and physical stress of Adams’ employment brought on the painful, sickening incident on his last night at work. He is not required to prove that the employment caused his arteriosclerosis. See Guillory v. United States Fidelity & Guaranty Insurance Co., 420 So.2d 119 (La.1982); Guidry v. Sline Industrial Painters, Inc., 418 So.2d 626 (La.1982); Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 221 So.2d 816 (1968); Behan v. John B. Honor Co., 143 La. 348, 78 So. 589 (1918).

2

The second issue which the court reconsidered on rehearing was related to the first: did the on-the-job episode of angina pectoris cause Adams’ disability, or was it caused by the arteriosclerosis, a disease which the doctors thought Adams must have had for a long time before he came to work for New Orleans Public Service Inc.?

Adams never suspected that he had a cardiovascular disease. He had worked all his life. His work record was good. He did not even have a family doctor, and when he sought medical help on the day after the attack on the job, he had to go to the emergency room of a nearby hospital.

His symptoms were classic and unmistakable, immediately recognized at the hospital where he was promptly admitted. When he realized he needed to stop work, cool off, get his breath and let the pain subside, he had been the victim of an “accident,” defined in R.S. 23:1021(1) as “an unexpected or unforeseen event happening suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury.” The event was not gradual, but relatively sudden, and Adams’ co-worker and wife could tell by looking at Adams that something had happened to him.

The record before us does not tell us that there was permanently damaged heart tissue after the angina attack, but only that there would be no detectable difference in the affected arteries two days after the incident of angina. The record does disclose that angina pectoris is a “progressive” condition; one doctor expected “angina to be a progressively worse symptom” with the likelihood of thrombosis and infarction becoming increasingly greater with time. After treatment Adams was released to return to work, except work that would require heavy exertion. The defendant would not reemploy him with that limitation on his activities.

Early cases in Louisiana dealt with the argument that the disability was caused by the diseased condition of the worker’s body and not by the accident by resort to tort law terminology. “. . . But the accident was, none the less, the proximate cause of the . . . disability. . . . ” Behan v. John B. Honor Co., 143 La. at 351, 78 So. at 590. More recent cases have resorted to the use of a rebuttable presumption.

“On the specific issue of the causal connection between the accident and the disability, the claimant is entitled to the benefit of a presumption in certain cases. If an otherwise healthy worker suffers an accident at work and is thereafter disabled, it is presumed that there is a causal connection between the two, so long as the medical evidence establishes a reasonable possibility of such a connection. . . This presumption is not conclusive, but it forces the defendant to come forward with sufficient contrary evidence to rebut it.” Allor v. Belden Corp., supra at 1236.

That has not happened here. The conclusion to be drawn from all the evidence is not that Adams has recovered from the angina and is now as able as he was before treatment, but that he should avoid the stress of heat and heavy work, or risk the increasing likelihood of thrombosis and infarction.

3

A third consideration for granting a rehearing in this case was to reconsider two expressions (or their implications) in the original opinion. One had to do with com-pensability for injury in the absence of physical stress or exertion; the other, that the only pertinent inquiry, when it is argued that the accident might have occurred at another place and at another time, is whether in fact the accident happened on the job.

It is needless, now, to discuss the differences arising from these statements in this opinion. Agreement on their meaning and implications is not essential to the conclusion of the majority that Adams is entitled to compensation. After rehearing was granted in the Adams case, Guidry v. Sline, supra, was decided. There, a majority of the court stated, “we expressly reject” the two statements in the first Adams opinion. The rejection is discussed at length in the Guidry opinion.

For these reasons, the original opinion (with the exception noted in 3 above) and judgment of this court is reinstated, and there is now judgment in favor of plaintiff and against defendant in the weekly amount of $164.13 for four hundred fifty weeks, at defendant’s cost.

MARCUS and BLANCHE, JJ., dissent and assign reasons.

LEMMON, J.,

dissents, noting that this case is vastly different on its facts from Guillory v. United States Fidelity & Guaranty Insurance Co.

MARCUS, Justice

(dissenting).

I do not consider that Adams’ angina pectoris was caused by his employment; rather, I consider that it was caused by arteriosclerosis. Hence, there was no accidental injury. In other words, Adams’ disability was not caused by an employment-related accident; rather, his disability was caused by the arteriosclerosis which produced anginal pain. Accordingly, I respectfully dissent.

BLANCHE, Justice

(dissenting).

I do not consider that Adams’ angina pectoris was an “accident” which would be compensable under the worker’s compensation law. Angina pectoris is a symptom rather than a disease; it is a symptom of arteriosclerosis. A heart attack is an accident which will allow recovery. Barnes v. City of New Orleans, 322 So.2d 821 (La. App. 4th Cir. 1975), writ refused 325 So.2d 584 (1975); City of Alexandria v. Perkins, 302 So.2d 682 (La.App. 3rd Cir. 1974), writ refused 305 So.2d 129 (1974); Sherman v. Southern Scrap Material Co., Ltd., 284 So.2d 71 (La.App. 4th Cir. 1973), writ refused 286 So.2d 661 (1973). However, the record shows that Adams did not suffer a heart attack and that his arteriosclerosis was a pre-existing condition which was not brought about by any employment related accident. A fair reading of the record shows that Adams’ condition following the angina attack was exactly the same as it was before. Adams still suffers from the disease, arteriosclerosis.

APPLICATION FOR REHEARING

PER CURIAM.

Defendant correctly points out an error in computation in our original judgment, which was reinstated on rehearing. Our original judgment was rendered “in the weekly amount of $164.13 for four hundred fifty weeks.” That amount should have been $130.00. Our original judgment is therefore amended, and there is judgment in favor of plaintiff and against defendant in the weekly amount of $130.00 for four hundred fifty weeks.

The application for rehearing is denied.

      . In medical terminology, angina pectoris is a paroxysmal thoracic pain, with a feeling of suffocation and impending death, due most often to anoxia of the myocardium and precipitated by effort or excitement. Anoxia is an absence or lack of oxygen. Dorland’s Medical Dictionary, 24th ed. (1965).
      Angina pectoris may be a vague, barely troublesome ache, or it may become a severe, intense precordial crushing sensation. The pain may radiate to the left shoulder and down the inside of the left arm. The Merck Manual, 13th ed., p. 478 (1977).

      . The Merck Manual, 13th ed., p. 478 (1977). The deposition of Dr. Sterling Dunn, an expert witness of defendant, was introduced into evidence. In his deposition, Dr. Dunn explains that muscles produce sugar in the presence of oxygen. When the demand placed upon the muscles exceeds the oxygen supply, the combustion of sugar continues but lactic acid builds up. When the amount of lactic acid reaches a certain level, it causes pain. The thickening of the arteries associated with arteriosclerosis may impede the blood supply to the muscles causing lactic acid to accumulate and resulting in angina or pain.

      . The Merck Manual, 13th ed., p. 478 (1977).

      . Tachycardia is excessive rapidity in the action of the heart. Dorland’s Medical Dictionary, 24th ed. (1961).

      . According to The Merck Manual, reduction of the blood supply to the myocardium (heart) by hardening of the coronary arteries frequently results in angina pectoris. It produces myocardial damage that may lead to congestive heart failure or various cardiac arrhythmias. If an artery is occluded, an infarction may result. The Merck Manual, 13th ed., p. 484 (1977). Thus, arteriosclerosis may be responsible for several different consequences.

      . A myocardial infarction is damage to a portion of the heart muscle by myocardial ische-mia (lack of oxygen) usually the result of coronary artery occlusion, generally characterized by pain similar to that of angina pectoris, and sometimes by shock, cardiac dysfunction, and sudden death. The Merck Manual, 13th ed., pp. 484-485 (1977). See also, Hurst, The Heart, 4th ed., pp. 1124-1126 (1978).

      . The Merck Manual, 13th ed., pp. 484-485 (1977).

      . The record shows that plaintiffs hourly wage was $6,155 at the time of the accident and that he is not currently employed. The average weekly wage would amount to approximately $246.20, computed on a forty hour work week. See R.S. 23:1021(7).

      . I regret that I can find no merit in the “rejection” of the statements which, taken in context, were not incorrect and might have helped eliminate some specious arguments in compensation cases.


author:
LEMMON, Justice. MARCUS, Justice
      DENNIS, Justice, WATSON, Justice,

text:
    Milton KENT, Jr., As Curator of the Estate of his Interdicted Son, Keith Kent v. GULF STATES UTILITIES COMPANY and the State of Louisiana Through the Department of Highways.
    No. 80-C-2453.
    Supreme Court of Louisiana.
    April 30, 1982.
    Rehearing Denied Sept. 3, 1982.

      Charles R. Moore, Edward J. Walters, Jr., and Keith B. Nordyke, of Moore & Walters, Baton Rouge, for plaintiff-applicant.
    Frank W. Middleton, Jr., and W. Luther Wilson, of Taylor, Porter, Brooks & Phillips, William J. Doran, Jr., Robert J. Jones, Marshall W. Wroten, and Philip K. Jones, of Doran & Kivett, Baton Rouge, for defendants-respondents.
   LEMMON, Justice.

This case of personal injury by contact with electrical lines involves an analysis of the respective duties and conduct of the electric utility company, of the executive officers of the construction company which was building a road that crossed under the electric lines, of the executive officers of the State Department of Highways, and of the electrocution victim who was a construction worker on the project.

The accident occurred when Keith Kent, an employee of Barber Brothers Contracting Company, was working on a highway department project to widen a roadway in the Baton Rouge area. The 30-foot aluminum pole he was using to texture the surface of the highway came in contact with a high voltage distribution line owned by Gulf States Utilities. Named as original defendants were Gulf States Utilities Company and the State of Louisiana Department of Highways. After the trial court determined plaintiff’s exclusive remedy against the Department was for workmen’s compensation benefits and dismissed that defendant, plaintiff named the Department’s project engineer, W. L. Landon, Jr., and their project inspector, Killiam H. Kup-per, as individual defendants. Also named defendants in their individual capacities were Barber’s two executive officers.

After presentation of the evidence and closing arguments to the jury, the Barber defendants reached a settlement with plaintiff. The trial court’s charge to the jury included instructions on the liability of the Barber defendants, and the jury returned a verdict in favor of plaintiff against Gulf States Utilities and Barber’s two officers for $3,000,000. The trial court entered judgment following the verdict against Gulf States Utilities for $1,000,000, plus legal interest and one-third of the costs, as its share of the judgment. All other defendants were dismissed.

Plaintiff appealed, seeking reversal of the dismissal of Landon and Kupper and of the trial court’s reduction of the judgment by two-thirds. Defendant Gulf States also appealed, reurging the defenses of contributory negligence and/or assumption of risk. The court of appeal held that Keith Kent’s conduct barred his recovery and reversed the judgment against Gulf States, while affirming the dismissal of all other defendants. 398 So.2d 560. We granted plaintiff’s application for certiorari. 399 So.2d 585.

Facts

Keith Kent began his employment with Barber shortly before the accident. At the time of his injury the 18-year old employee was making antihydroplaning grooves in the surface of the highway by pulling a metal rake, approximately five feet wide, across the surface of the freshly poured concrete.

The portion of the highway then under construction ran under three high voltage distribution lines, which intersected the highway at an angle. The uninsulated lines, located 25 feet 8 inches above the surface of the ground and 24 feet 8 inches above the surface of the slab, were clearly visible, and everyone on the construction site, including Keith Kent, was aware of them.

The metal rake used by the workers to create grooves had an aluminum handle, which had been extended to a length of 30 feet by screwing together several six-foot sections. That length was necessary because of the double width of the concrete roadway (two 13-foot widths) under construction.

On the day of the accident Kent and his co-worker, David Jenkins, were using a walk bench bridge (a structure on wheels which straddled the slab) to transfer the rake from one side of the poured concrete to the other. The workers, after pulling the rake across the concrete, used the bench to slide the rake back across the slab to make the next pull. However, about two hours before the accident, a crew of Barber’s concrete finishers needed the bench, and Kent and Jenkins relinquished it. They first tried to simply push the rake across and pull it back, but that procedure caused gouging. They then began using the “flip-flop” method to transfer the rake back and forth across the slab. In using this method, Kent stood on one side of the slab and pulled the rake, creating the grooves across the concrete. He then returned the rake by holding onto the rake head, raising the handle in the air and letting the rake fall across the slab, where it was caught by Jenkins. Jenkins then pulled the rake across the surface and returned it to Kent in a similar manner.

Kent and Jenkins used this method until they came near the overhead lines. To avoid contact, they devised a method to walk away from the lines, to flip the rake, and then to return under the lines to rake across the surface. Kent and Jenkins had used this method without incident to work underneath and beyond the lines approximately eight or ten feet when the accident occurred.

None of the witnesses who testified at trial actually saw the rake handle contact the wire. David Jenkins testified that he and Kent had completed two pulls after crossing under the wires and that Kent was standing eight to ten feet from the point the wires intersected the highway at an angle. Suddenly “he [Kent] just went up in the air with it [the rake handle]”. Jenkins described the handle as limber and wobbly.

Charles Smith, a cement finisher, testified that he walked over to Kent just before the accident to warn him of the lines. He stated that when he tapped Kent on the shoulder and pointed out the lines, Kent indicated he was aware of them and joked with Smith that the wires would get Jenkins, but not him. Smith testified he turned and walked about 20 feet when he heard the electrical boom caused by the handle’s contact with the wire, and then he saw Kent slumped over motionless next to the slab.

It is therefore evident from the testimony that the accident occurred when Kent, while standing very near the overhead lines, raised the rake handle so that it made contact with one of the lines.

Liability of Gulf States

Plaintiff contends that Gulf States was negligent in failing to take reasonable measures to protect against the foreseeable risk that a person, in contact with the ground or with a grounded object, would come in contact with its wires in the construction area. Plaintiff further urges that we hold Gulf States under some form of absolute or strict liability, either as the custodian of a thing under C.C. Art. 2817 or as an enterpriser engaged in an ultrahaz-ardous activity.

C.C. Art. 2315 imposes delictual liability on a person whose fault causes damage to another. Since “fault” is a broader and more comprehensive term than “negligence”, the codal scheme imposes responsibility on a person not only when his negligence causes damage, but also when the person has a legal relationship with a person, a thing, or an activity which causes damage. Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133 (1971). Liability is strict in the sense that it does not depend upon proof of personal negligence.

C.C. Art. 2317 provides:

“We are responsible, not only for the damages occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.”

In Loescher v. Parr, 324 So.2d 441, 444 (La.1975), this court interpreted Art. 2317 as imposing liability on the owner of a diseased tree which fell onto a neighbor’s automobile, although the diseased condition of the tree was not apparent and the owner therefore could not be deemed negligent for failing to discover- and correct the condition or to protect others from the risk resulting from that defective condition. The court held that the tree’s owner-guardian was liable for his fault in maintaining a defective tree and not preventing the thing from causing injury, unless he proved that the damage was caused by the fault of the victim, by the fault of a third person, or by an irresistible force.

Because the term “thing” encompasses a virtually unlimited range of subject matter, the Loescher decision has since been cited by innumerable litigants seeking to avoid the necessity of proving personal negligence in tort cases. The distinction between negligence cases and strict liability cases (such as Loescher) has largely been either misunderstood or completely disregarded. It is therefore appropriate for this court, in determining the applicability of Art. 2317, to review first the distinguishing effect of applying strict liability under that article.

In a typical negligence case against the owner of a thing (such as a tree) which is actively involved in the causation of injury, the claimant must prove that something about the thing created an unreasonable risk of injury that resulted in the damage, that the owner knew or should have known of that risk, and that the owner nevertheless failed to render the thing safe or to take adequate steps to prevent the damage caused by the thing. Under traditional negligence concepts, the knowledge (actual or constructive) gives rise to the duty to take reasonable steps to protect against injurious consequences resulting from the risk, and no responsibility is placed on the owner who acted reasonably but nevertheless failed to discover that the thing presented an unreasonable risk of harm.

In a strict liability case against the same owner, the claimant is relieved only of proving that the owner knew or should have known of the risk involved. The claimant must still prove that under the circumstances the thing presented an unreasonable risk of harm which resulted in the damage (or must prove, as some decisions have characterized this element of proof, that the thing was defective). The resulting liability is strict in the sense that the owner’s duty to protect against injurious consequences resulting from the risk does not depend on actual or constructive knowledge of the risk, the factor which usually gives rise to a duty under negligence concepts. Under strict liability concepts, the mere fact of the owner’s relationship with and responsibility for the damage-causing thing gives rise to an absolute duty to discover the risks presented by the thing in custody. If the owner breaches that absolute duty to discover, he is presumed to have discovered any risks presented by the thing in custody, and the owner accordingly will be held liable for failing to take steps to prevent injury resulting because the thing in his custody presented an unreasonable risk of injury to another.

Thus, while the basis for determining the existence of the duty (to take reasonable steps to prevent injury as a result of the thing’s presenting an unreasonable risk of harm) is different in C.C. Art. 2317 strict liability cases and in ordinary negligence cases, the duty which arises is the same. The extent of the duty (and the resulting degree of care necessary to fulfill the duty) depends upon the particular facts and circumstances of each case.

Accordingly, in a strict liability case in which the claimant asserts that the owner’s damage-causing thing presented an unreasonable risk of harm, the standard for determining liability is to presume the owner’s knowledge of the risk presented by the thing under his control and then to determine the reasonableness (according to traditional notions of blameworthiness) of the owner’s conduct, in the light of that presumed knowledge.

Thus, in the Loescher case, the plaintiff did not have to prove the owner of the tree knew or should have known of the defect in the tree. Under strict liability concepts the owner was presumed to have knowledge of the tree’s condition, and he was liable because a reasonable owner who had discovered the hazardous condition would not have maintained the thing as he did without correcting or minimizing the risk. As some torts scholars have observed, the test in strict liability cases, except for the element of the defendant’s scienter, is virtually the same as that for negligence. See J. Wade, Strict Tort Liability for Manufacturers, 19 5.W.L.J. 5,15 (1965).

In the present case Gulf States knew that its lines were “hot” and were not wrapped with insulating material, a condition which presents a grave risk of harm to a person who comes in close proximity to the lines while in contact with the ground or a grounded object. (This risk was indeed a cause-in-fact of Kent’s injury in this case.) Because of Gulf States’ knowledge of the condition of its lines, it is unnecessary in this case to presume any knowledge of a risk of harm created by Gulf States’ lines in this case, and C.C. Art. 2317’s imposition of an absolute duty to discover the risks presented by the thing in its custody is not helpful to the determination of Gulf States’ liability in this case. That liability as custodian of the thing depends on an analysis of the reasonableness of Gulf States’ conduct in protecting persons against harm resulting from the risk of which Gulf States was well aware, which is essentially a negligence determination.

Liability for ultrahazardous activities, on the other hand, involves different considerations than liability under C.C. Art. 2317 for creating or maintaining a thing which presents an unreasonable risk of harm. There are some activities in which the risk may be altogether reasonable and still high enough that the party ought not undertake the activity without assuming the consequences. Such activities include pile driving, storage of toxic gas, blasting with explosives, crop dusting with airplanes, and the like, in which the activity can cause injury to others, even when conducted with the greatest prudence and care. 2 F. Harper and F. James, The Law of Torts, § 14.4 (1956); W. Prosser, The Law of Torts § 78 (4th ed. 1971).

For these particular activities, Louisiana courts have imposed an absolute liability (as contrasted to the strict liability previously discussed), which virtually makes the enter-priser an insurer. The enterpriser, whether or not negligent in any respect, causes the damage, and the injured party recovers simply by proving damage and causation.

In these cases of absolute liability (or liability without proof of negligence or other fault), liability is imposed as a matter of policy when harm results from the risks inherent in the nature of the activity. The steps taken by the enterpriser to protect others from the inherent risks of the activity are not relevant to the determination of liability.

The activity of driving piles, for example, is likely to cause damage, even when there is no substandard conduct on anyone’s part. The activity, by its very nature, simply cannot be done without a high degree of risk of injury.

On the other hand, the transmission of electricity over isolated high tension power lines is an everyday occurrence in every parish in this state and can be done without a high degree of risk of injury. And when the activity results in injury, it is almost always because of substandard conduct on the part of either the utility, the victim or a third party.

The two activities of driving piles and of transmitting electricity are thus different from the point of view of a policy need to impose absolute liability irrespective of negligence or other fault. Indeed, we have not been directed to any decision from other states in which absolute liability has been imposed on the activity of transmitting electricity for public consumption. See 82 A.L.R.3d 218 (1978).

We accordingly conclude that Gulf States should not be held absolutely liable, as an enterpriser engaged in ultrahazardous activities, when its activity of transmitting electricity is a cause-in-fact of injury to another, unless fault was proved on Gulf States’ part.

We now turn to the bottom line for resolving the issue of Gulf States’ liability in this case and determine whether Gulf States took reasonable steps under the circumstances to protect against the risk that a person, in contact with the ground or with a grounded object, would come in contact with its electric lines in the construction area.

Pointing out the provision in the National Electric Safety Code for a minimum vertical clearance of 20 feet over roads in urban and rural areas, Gulf States contends that its lines were “insulated by isolation”, in that the lines were sufficiently isolated that contact was neither foreseeable nor likely. On the other hand, plaintiff contends that the construction activity in the vicinity of the lines and the use of 30-foot metal poles in that construction constitutes special circumstances which increased the hazard and dictated special precautions to reduce the risk. Plaintiff argues that Gulf States could have installed temporary insulation or taken other simple protective measures, and should be held liable for failing to take any additional steps to reduce the risk.

The determination of the responsibility for the accident involves an analysis and comparison of the respective duties and the responsive conduct of all parties, not only Gulf States and Kent, but also Barber’s executives and the Highway Department’s executives. Each had some duty in some degree to prevent the type of accident which did occur, and the conduct of each must be examined and compared in the light of the respective duties.

The road construction project crossed under Gulf States’ wires at about 18 different points. Representatives of Gulf States, Barber and the Highway Department attended numerous meetings pertaining to the project, and in fact Gulf States moved its poles at this particular crossing to accommodate the construction.

Except for the rakes, there was no other equipment or machines on the project that were long enough or tall enough to present a danger of contact with the wires. Barber had fiberglass handles, but nevertheless supplied aluminum handles for this job.

A combination of unusual factors concurred to cause this accident. The breaking down of the road machine caused the need to use the rake over an unusually long distance and period of time. The double width of the roadway caused the need to use an exceptionally long handle. The appropriation of the bench to another use caused the need to utilize the flip-flop method (which the Barber executives and others testified they had never seen used with such a long handle). The progress of the grooving to the point of intersection with the wires caused the need to devise an alternative method of procedure under the wires. Finally, Kent’s act of raising the handle into wires he had just been warned to avoid was necessary to complete the unfortunate scenario.

Under the overall circumstances, it is difficult to conclude that Gulf States acted unreasonably in failing to protect against these particular consequences. Gulf States’ conduct at issue in this case is its decision not to take additional precautions (such as installing rubber hose in the area of construction) beyond the precaution of insulating its lines by isolation, which was done in the original construction of the lines. We find that conduct not to be unreasonable. Furthermore, we find no ease of association between the risk presented by Gulf States’ conduct under the overall circumstances and the injury which ultimately occurred. Hill v. Lundin & Assoc., Inc., 260 La. 542, 256 So.2d 620 (1972).

Liability of Kupper

Plaintiff contends that Kupper was in charge of the grooving project and, although aware of the wire, did not insure that Kent used proper tools and used a safe method to perform his work.

The duty to provide Kent with a safe place to work, including proper tools, equipment and methods for safely performing his duties, was primarily on his employer and the employer’s executive officers. Kupper arguably could have prevented the accident by interjecting himself and demanding that Barber furnish Kent with a fiberglass rake, but he had no such duty to Kent, and is not liable for failing to do so. Furthermore, Kupper did not affirmatively create a hazardous situation by requiring Kent to use dangerous equipment or methods.

The judgment of the court of appeal is affirmed.

DIXON, C. J., concurs.

MARCUS, J., concurs and assigns reasons.

DENNIS, J., assigns additional concuring reasons.

WATSON, J., dissents and assigns reasons.

MARCUS, Justice

(concurring).

I do not consider that Gulf States is strictly liable under La.Civ.Code art. 2317 because there was no evidence of a defect in the overhead electric lines. Moreover, there is ample evidence of “victim fault.” Likewise, I agree that Gulf States should not be held absolutely liable as one engaged in ultra-hazardous activities. Also, I find no negligence on the part of Gulf States under La.Civ.Code arts. 2315 and 2316. Additionally, I consider that plaintiff was either contributorily negligent and/or assumed the risk of injury.

Accordingly, I respectfully concur.

DENNIS, Justice,

assigning additional concurring reasons.

I join in the majority opinion. Furthermore, in support of its thoughtful observations, I feel the following comments should be added.

I am convinced that this court in Loescher v. Parr, 324 So.2d 441 (La.1975), through use of the phrase “unreasonable risk of injury,” intended to inject into the theory of liability under Article 2317, a balancing test closely analogous to that utilized in negligence actions.

The “unreasonable risk of injury” phrase is strikingly similar to language employed by many American courts, scholars, and law reform bodies in dealing with ordinary negligence and products liability law. See W. Prosser, Law of Torts § 31 (4th ed. 1971); Restatement of Torts §§ 282 and 402A. The history of strict products liability in Louisiana indicates the requirement that a defective product must be “unreasonably dangerous” came into our jurisprudence due to the pervasive influence of section 402A of the Restatement of Torts after its publication in 1965. DeBattista v. Argonaut-Southwest Ins., 403 So.2d 26 (La.1981); Weber v. F. & C. Co., 259 La. 599, 250 So.2d 754 (1971). See Andrus, 25 La.B.J. 105 (1977); Robertson, 50 Tul.L.Rev. 50 (1975). After using the “unreasonably dangerous” limitation in Weber v. F. & C. Co. as a condition to legal fault under Article 2315, the Louisiana Supreme Court employed a similar requirement in summarizing the principles of legal fault under Articles 2317, 2318, 2320, 2321 and 2322, by holding that strict liability results from the conduct or defect of a person or thing which creates an “unreasonable risk” of injury to others. Loescher v. Parr, supra.

All of these “unreasonable risk” tests imply a process of balancing the risk against the value of the interest which the defendant is seeking to protect, and the expedience of the course pursued. Prosser, at p. 149. This is the standard negligence test. In strict liability, except for the element of the defendant’s knowledge, the test is the same as that for negligence. Wade, On the Nature of Strict Tort Liability for Products, 44 Miss.L.J. 825, 834-35 (1973); Wade, Strict Tort Liability for Manufacturers, 19 S.W.L.J. 5, 15 (1965). Compare, Comment, Does Louisiana Really Have Strict Liability Under Civil Code Articles 2317, 2318, and 2321?, 40 La.L.Rev. 207 (1979). In negligence, allowance is made for the risk apparent to the actor, for his capacity to meet it, and for the circumstances under which he must act. In strict liability, however, knowledge of the condition of the product is imputed to the defendant before the balancing test or negligence test is applied. In products liability, for example, a product is considered unreasonably dangerous when a reasonable seller would not sell the product if he knew of the risks involved or if the risks are greater than a reasonable buyer would expect. Thus, assuming that the defendant had knowledge of the condition of the product, would he then have been acting unreasonably in placing it on the market? This is another way of posing the question of whether the product presents an unreasonable risk of injury. And it may be the most useful way of presenting it. See, Wade, Strict Tort Liability for Manufacturers, 19 S.W.L.J. 5 (1965).

In .the future, we may come to recognize that in the strict liability of Loescher v. Parr, except for the element of the knowledge of the custodian of the thing, the test is the same as that for negligence. Thus, assuming that the custodian of the thing had knowledge of its condition, would he then have been acting reasonably by maintaining it and exposing others to it? If this comes to be understood as the most useful way of presenting the Loescher test, then this type of strict liability will retain many of the characteristics of negligence law.

The Loescher strict liability bears little analogy to the common law doctrine of strict liability for abnormally dangerous conditions and activities with which it has sometimes been compared. Dorry v. LaFleur, 399 So.2d 559 (La.1981). Under the rule of Rylands v. Fletcher, the defendant will be liable when he damages another by a thing or activity unduly dangerous and inappropriate to the place where it is maintained, in the light of the character of that place and its surroundings. The conditions and activities to which the rule has been applied include water collected in quantity in a dangerous place, or allowed to percolate; explosives stored in quantity in a city; blasting and pile driving; and crop dusting, et al. Prosser, § 78, pp. 509-510. The Restatement of Torts has accepted this principle but has limited it to an “ultra hazardous activity” which “necessarily involves a risk of serious harm to the persons, land or chattels of others which cannot be eliminated by the exercise of the utmost care” and “is not a matter of common usage.” Restatement of Torts, §§ 519, 520. The Loescher doctrine is much broader since it covers all things, everywhere which create an unreasonable risk of injury to others. Most of the circumstances giving rise to strict liability under Act 2317 have been neither ultrahazardous nor unnatural to the locality. See Dorry v. LaFleur, supra; Malone, Ruminations on Liability for the Acts of Things, 42 La.L.Rev. 979 (1982).

The interpretation of Loescher suggested above preserves its worthy goals while providing the trier of fact with badly needed conceptual guidance and linkage with the familiar negligence network. The plaintiff must still prove, as part of his prima facie case, that his injury resulted from a thing in the defendant’s custody presenting an unreasonable risk of injury to others. At the same time, the plaintiff is relieved of the burden of proving the custodian’s knowledge of the thing’s defective condition. Although the custodian is presumed to have scienter, his conduct in failing to prevent the injury is judged, for the most part, according to negligence concepts with which laymen, jurors, and judges are comfortable and familiar.. The custodian may still exculpate himself by proving that the injury resulted from the fault of the victim, the fault of a third person, or an irresistible force.

It would seem to follow that in cases such as the instant one, where the defendant clearly knew or should have known of the risk of injury to others by the thing in its care, the imputation of scienter afforded by Loescher is irrelevant. Applying the standard negligence test, I would agree with the author of the majority opinion that the plaintiff failed to prove that the power company acted negligently in causing Mr. Kent’s injuries.

Part of the majority opinion does cause some concern, however. Although the transmission of high voltage electricity over uninsulated lines is not an ultrahazardous activity in most jurisdictions, see Annotation, Applicability of Rule of Strict Liability to Injury From Electrical Current Escaping From Powerline, 82 A.L.R.3d 218 (1978), this cannot be said so convincingly in Louisiana. Arguably, the conclusion that this activity is ultrahazardous could be reached through the same process by which this court decided, in Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133 (1971), that the storage of highly poisonous gas was an ultrahazardous activity:

“We do not here establish a new standard for liability, but merely apply the standard set by law and applied repeatedly in our jurisprudence. The activities of man for which he may be liable without acting negligently are to be determined after a study of the law and customs, a balancing of claims and interests, a weighing of the risk and the gravity of harm, and a consideration of individual and societal rights and obligations. See Yommer v. McKenzie, 255 Md. 220, 257 A.2d 138 (1969).” 249 So.2d at 140.

I find it unnecessary to contend with the argument at this time, however, because I find that the plaintiffs own fault would preclude him from recovering in this case even under a Langlois type of strict liability. Although it is a close question, as I appreciate the evidence, the plaintiff knowingly and unreasonably assumed the risk of electrocution by flip-flopping a metal pole near the defendant’s power line.

WATSON, Justice,

dissenting.

In view of the heavy construction activity in the vicinity, the transmission of deadly voltages of electricity over these uninsulated lines constituted an ultra-hazardous activity. Gulf States owed a high degree of care. Rasmussen v. Fitchburg Gas and Electric Light Co., 343 Mass. 515, 179 N.E.2d 907 (1962); Phelps v. Magnavox Company of Tennessee, 497 S.W.2d 898 (Tenn.App.1972); Densler v. Metropolitan Edison Company, 235 Pa.Super. 585, 345 A.2d 758 (1975); Sprague v. Commonwealth Edison Company, 59 Ill.App.3d 342, 16 Ill.Dec. 620, 375 N.E.2d 493 (1978); and Burke v. Illinois Power Co., 57 Ill.App.3d 498, 15 Ill.Dec. 670, 373 N.E.2d 1354 (1978); and McKowen v. Gulf States Utilities Co., 358 So.2d 675 (La.App. 1 Cir. 1978). Although the lines exceeded the safety code’s minimum clearance by four feet, eight inches, this was insufficient. See Galloway v. Singing River Electric Power Ass’n, Inc., 247 Miss. 308, 152 So.2d 710 (1963). A dragline, which had been used at the site, also might “have got entangled” in the electric lines. (Tr. 476) Robert E. Briggs, an expert consultant in electrical engineering, testified that the hazard here could have been greatly reduced by the use of temporary insulation. According to Briggs, such an accident was “reasonably foreseeable”. (Tr. 575) In Briggs’ expert opinion, the National Electric Safety Code was violated by Gulf States. Gulf States had a duty to take further precautions against the risk of injury presented. McKowen, supra. The question of Gulf States’ liability is a jury question. Rasmussen v. Fitchburg Gas and Electric Light Co., supra; Densler v. Metropolitan Edison Company, supra; Kirton v. Williams Electric Co-Op, Inc., 265 N.W.2d 702 (N.D., 1978); Sprague v. Commonwealth Edison Company, supra; Cantu v. Utility Dynamics Corp., 70 Ill.App.3d 620, 26 Ill.Dec. 160, 387 N.E.2d 990 (1979); Estate of Celiz and Sanchez v. Public Utility District No. 1 of Douglas County, 30 Wash.App. 682, 638 P.2d 588 (1981); and, Tirante v. Gulf States Utilities Co., et al., 412 So.2d 128 (Ct.App. 1 Cir. 1982). The jury’s verdict against Gulf States should be affirmed.

The jury did not give judgment against Kupper and apparently did not believe Jenkins’ testimony that Kupper instructed them to use the flip-flop method. However, it is unlikely that Kent, a new, eighteen year old employee, devised that method himself. Because the long jointed pole was “clumsy up in the air” (Tr. 465), it came in contact with the electric lines.

I respectfully dissent.

      . As noted by the court of appeal, plaintiff has apparently abandoned his appeal as to the dismissal of defendant Landon.

      . There was some testimony that grooving over a straight run of concrete pouring was usually accomplished by a machine and that hand raking was generally used only at intersections or for spot patching, when use of the machine was impractical. In such situations only a short-handled rake was usually required, because of the relatively short distance over which the rake had to be pulled. On the day of the accident the grooving machine was broken, and Barber’s employees had to use the long-handled rake (which Barber had on the job) to create grooves on the 26-foot wide roadway.

      . Testimony at trial conflicted as to how Kent and Jenkins came to use the flip-flop method. David Jenkins testified at trial that defendant Kupper instructed him and Kent, when they were about 50 feet from the wires, to give the bench to the cement finishers and to use the “flip-flop” method. In a statement given approximately six months after the accident, however, Jenkins was unable to say who instructed him and Kent to use that method. Defendant Kupper, on the other hand, denied having instructed the workers to use this method. In any event Kent and Jenkins used the flip-flop method for two hours in full view of the supervisors of both Barber and the Highway Department.

      . Compare with the cases imposing absolute liability, to be discussed below.

      . The theory is that the owner-guardian is regarded as the risk-creator because of his relationship with the thing which presents the risk. As between him and the faultless victim injured as a result of the risk, the owner-guardian theoretically should bear the loss, because he was in the best position to discover the risk and to prevent the injury.

      . In products liability cases, the manufacturer is presumed to know the dangerous propensities of its product and is strictly liable for injuries resulting from the product’s unreasonable risk of injury in normal use. The claimant nevertheless must prove that the product presented an unreasonable risk of injury in normal use (regardless of the manufacturer’s knowledge), thus in effect proving the manufacturer was negligent in placing the product in commerce with (presumed) knowledge of the danger.

      . See Craig v. Montelepre Realty Co., 252 La. 502, 211 So.2d 627 (1968) and D’Albora v. Tulane University, 274 So.2d 825 (La.App. 4th Cir. 1973), cert. denied, La., 278 So.2d 504 and 505 (pile driving); Langlois v. Allied Chem. Corp., above (escaping gas used in manufacture of petrochemical products); Gotreaux v. Gary, 232 La. 373, 94 So.2d 293 (1957) (crop dusting by airplanes); Fontenot v. Magnolia Petroleum Co., 227 La. 866, 80 So.2d 845 (1955) (blasting with explosives).

      . It is noteworthy that, in each of the activities placed in this special category by decisions of Louisiana courts, the enterpriser is almost invariably the sole cause of the damage and the victim seldom has the ability to protect himself. No decisions have placed in this category any activities in which the victim or a third person can reasonably be expected to be a contributing factor in the causation of damages with any degree of frequency.

      . The supplying of aluminum handles and the appropriation of the bench to other use arguably supported the jury’s verdict against Barber’s executive officers.

      . The author adds the following comments:
      As between Kent and Barber’s executives, Kent’s act was less culpable. The young, inexperienced employee was supplied with an aluminum handle rake, and after the bench was removed, he had to improvise a procedure which proved to be unsafe. In comparison to Kent (and to Gulf States), the employer’s executives had a heavy duty to prevent such an occurrence.
      As between Gulf States and Kent, the analysis of the comparative duties and conduct is particularly difficult in a setting in which the fault of one gives rise to total liability and the fault of the other totally bars recovery. To make such an abrupt cut-off, Gulf States’ duty (on which its fault is measured) must be deemed to begin at roughly the same point where Kent’s duty ends, and this solution is neither practical nor conceptually possible.
      Substantial justice can only be accomplished by quantifying the fault of each party and assigning proportionate responsibility for the occurrence. Since the Legislature had not yet adopted a comparative fault system when this accident occurred, and since this court has previously been disinclined to recognize this system judicially, this case must be decided under the recognized deficiencies of an all-or-nothing system.

      . The Loescher opinion has been criticized for discarding the traditional test of blameworthiness by imposing liability upon a defendant who had neither actual nor constructive knowledge of the defective condition of the thing in his custody. See, Malone, Ruminations on Liability for the Acts of Things, 42 La.L.Rev. 979 (1982). The perceived harshness of this result may be ameliorated, to a large degree, if the doctrine of comparative negligence is found to be applicable in 2317 actions. See, 1979 La. Acts. No. 431; Plant, Comparative Negligence and Strict Tort Liability, 40 La.L.Rev. 403 (1980); Rodrigue v. Dixilyn Corp., 620 F.2d 537, 544 n. 11 (5th Cir. 1980); Daly v. General Motors Corp., 20 Cal.3d 725, 144 Cal.Rptr. 380, 575 P.2d 1162 (1978).