author: SAMUEL, Judge.

text:
    Pauline MARTINEZ v. UNITED STATES FIDELITY AND GUARANTY and Darrell Ford.
    No. 11471.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1982.
    Rehearing Denied April 16, 1982.

      Wayne W. Yuspeh, Metairie, and R. Ray Orrill, Jr., New Orleans, for plaintiff-appel-lee.
    Donovan & Lawler, James L. Donovan and C. Suzanne Dittmer, Metairie, for defendants-appellants.
    Before SAMUEL, REDMANN and BOU-TALL, JJ.
   SAMUEL, Judge.

Plaintiff was awarded a $485,000 judgment pursuant to a jury verdict in an executive officer suit against Waterbury Drugs, Inc. vice president-treasurer Darrell Ford for allegedly breaching his duty of providing her, a Waterbury employee, with a safe place to work and of refraining from assigning her duties which would precipitate a nervous breakdown. Two incidents form the basis of the claim: (1) On February 25, 1975 plaintiff tripped over an electric cord as she arose from her desk; and (2) after returning to work on April 19, 1975, Ford assigned her to unusually heavy duties which precipitated or accelerated a nervous collapse. Defendants, Ford and his liability insurer, United States Fidelity and Guaranty Company, have appealed.

The issues before us are whether: (1) plaintiff was contributorily negligent; (2) an inconsistent factual finding of the jury arguably in conflict with its general verdict requires vacating the judgment and remanding for a new trial; and, alternatively, if issues 1 and 2 are resolved favorably to plaintiff; (3) the award for general damages is excessive; and (4) the evidence supports the special damages award.

LIABILITY

At the time plaintiff tripped over the wire, she had been employed by Waterbury for approximately three years. During that interval she had left temporarily and returned. There were electric cords extending from various desks to wall outlets in the office in which she worked. Prior to plaintiff’s fall, several other employees had tripped over these cords, and it was general knowledge that from time to time employees had so tripped. Darrell Ford, the Waterbury corporate officer who, at the time of the first incident in suit, functioned as office manager, knew of the prior trip-pings by other employees, had authority to make any changes needed to remove the hazards, and failed to do so.

Plaintiff was seated at one of three desks arranged in an L shape with her back to the wall some 6 to 7 feet behind her. Another desk, similarly placed to her immediate right, was occupied by Pat Telhorst, who witnessed plaintiff’s fall and was the only one to describe it with clarity. A third desk, with its length perpendicular to the same wall, formed the base of the inverted L and made it impossible for plaintiff to emerge from this semienclosed area by walking behind Mrs. Telhorst’s desk to her right and thus entering the general office area. Plaintiff had only' one exit to her left.

According to Mrs. Telhorst, Ford instructed plaintiff to go to the bank. Plaintiff had a backlog of work and was not accustomed to performing this duty at this time. She expressed irritation, got up from her desk, turned to her left to exit the area, and tripped over the cord of a ten-key adding machine. Because the cord was brown and the floor was the same color, it was difficult to see. As the cord on the machine was not of sufficient length to permit it to stretch flat across the floor between the desk and the wall outlet, at the time plaintiff tripped it was at ankle height.

- There was a calculator on the right side of each desk used by plaintiff and Mrs. Telhorst from which cords also stretched across the floor area to the wall outlets, but these were not involved in the fall. Both machines were on the right side of each desk because both ladies were right-handed.

The record fails to explain why the ten-key adding machine was on plaintiff’s desk. It was normally kept on a desk which abutted the wall opposite her desk. Ford stated he occasionally used the desk plaintiff occupied the day of her fall when he worked at night. The record further reflects the machine was to plaintiff’s left. The adding machine could be moved from desk to desk as it was needed.

There are several steps Ford could have taken to eliminate the trip hazards created by the cords, including moving the desks so that the sides abutted the wall and placing the machines on the edges immediately adjacent to the wall.

As a result of her fall, Mrs. Martinez was away from the office for approximately two months. On April 19, 1975, her first day back on the job, Ford gave her as her first assignment a strenuous job usually given to two people. She was to separate records of Waterbury in storage on the mezzanine area from those of another company, and in order to accomplish this she would be required to move heavy boxes. Normally an office handyman was sent with the employee so assigned and, in his absence, two office workers performed the job. Several coworkers, pointing out plaintiff’s nervous state, offered to go in her place. Ford insisted plaintiff go alone. After working in the hot and dusty area several hours, she returned to the office, her clothing soiled by the dust and her manner distraught. Unable to continue, she called her son to drive her home. She did not return to work.

Plaintiff testified she did not understand why Ford made her do this particular work because it was a man’s work and he knew she was returning to work on a trial basis. Before Ford became office manager, plaintiff had acted in that position until she left Waterbury the first time. When she returned, at Waterbury’s request, her job description was bookkeeper and Ford was her immediate supervisor.

Plaintiff’s claim rests on the assertion that Ford breached his duty as an executive officer to provide her with safe work surroundings (R.S. 23:13). Because executive officer liability is determined by general tort principles enunciated in our jurisprudence interpreting the fault concept of Civil Code Article 2315 (Canter v. Koehring Company, La., 283 So.2d 716), the affirmative defense of contributory negligence is appropriate. Miller v. Employers Mut. Liability Ins. Co., La.App., 349 So.2d 1353.

The negligence of Ford in failing to remedy an admittedly unsafe condition is clear. Whether Mrs. Martinez was contri b-utorily negligent is a closer question. In Smolinski v. Taulli, La., 276 So.2d 286, contributory negligence was defined as conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection. The standard of conduct used to measure contributory negligence is determined by reasonableness of behavior under the circumstances.

In executive officer suits, the standard of care imposed on the workman is less stringent than in ordinary cases where contributory negligence is at issue because the employee at times must involve himself in known hazardous endeavors in order to retain his employment. As economic coercion is a factor in determining reasonable conduct by a workman, the standard by which the contributory negligence of an employee is measured in an executive officer suit was defined in Miller v. Employers Mut. Liability Ins. Co., supra, at page 1362, as follows:

“Emerging as criteria for determining an employee’s contributory negligence are: (1) relative knowledge of the danger by the supervising employee and the injured employee; (2) relative control over the employee’s situation; (3) the degree to which the employee’s conduct is voluntary on his part; (4) alternatives available to the employee; (5) obviousness of the danger; and (6) relative ability to eliminate the danger.”

Applying the Miller criteria to this case, we note appellants did prove that the existence of trip hazards from electric cords was a fact known to both plaintiff and Ford. Clearly, Ford could have removed the hazard at a minimal cost to Waterbury. Plaintiff did not have the ability to correct the situation by rearranging furniture or installing outlets that would eliminate exposed cords. The authoritarian manner in which Ford operated the office is demonstrated by his assigning plaintiff to heavy physical duty without the customary assistance on her first day back to work. He refused to consider a suggestion of co-employees that they do the job because plaintiff was not well.

Further, appellants failed to prove the wire over which plaintiff tripped was one of which she was aware. The record does not contain an explanation of how the ten-key adding machine was moved to plaintiff’s desk from its usual spot on a desk across from where she sat, who moved the machine, and at what time this was done. There is no showing that plaintiff passed this wire daily, and the position of the machine indicates she did not use it because it was to her left and she is right-handed. Nor does the evidence establish plaintiff had an opportunity to see the cord and avoid it. Brown in color, it matched the floor. In arising from her desk, she would have had to look directly down at the floor in order to see the ankle high wire.

Accordingly, our review of the record discloses no manifest error in the jury’s finding that plaintiff was not contributorily negligent.

We mention the jury also found the contributory negligence of plaintiff was excused by momentary forgetfulness, which is an apparent contradiction in findings. We quote the questions propounded as they appear in the record:

“5. Was Mrs. Martinez guilty of contributory negligence?
(Answer yes or no) No
6. Was this contributory negligence excused by Mrs. Martinez’s momentary forgetfulness?
(Answer yes or no) Yes

Application of the momentary forgetfulness doctrine presupposes a finding of contributory negligence, which, in view of our conclusion, need not be discussed. We note that Question 6 seems to require a “yes” or “no” answer. Perhaps it would have been more understandable if Question 6 was prefaced with the phrase, “If your answer to Question 5 is yes, ...” In any event, it suffices to say the jury found no contributory negligence and we agree.

Appellants have cited several cases wherein a plaintiff who tripped over a wire was held to be guilty of contributory negligence. Masters v. State Farm Insurance Company, La.App., 266 So.2d 508, involved a visiting neighbor who tripped over a Christmas light electric cord stretched across the porch; Hawsey v. United States Fidelity and Guaranty Co., La.App., 211 So.2d 417, was a customer trip and fall case; and Geiger v. Larrieu, La.App., 246 So.2d 713, involved a claimant who was not an employee of defendant. These cases are inapposite because the standard of the reasonable man in measuring contributory negligence differs. Knowledge of the hazard alone, as in this case, does not support a plea of contributory negligence (or assumption of risk) where a party charged with the duty of providing a safe work environment fails to do so. Hall v. Hartford Accident & Indemnity Co., La.App., 278 So.2d 795.

As to the second incident, it is appellants’ position that Ford cannot be liable in tort because he did not know the job assignment would cause or contribute to her mental breakdown, if in fact this happened. On this aspect of liability, the following questions were propounded to the jury with the response noted:

“8. On April 19, 1975, did Darrell Ford knowingly, intentionally and deliberately require Mrs. Martinez to perform duties that caused or contributed to her mental breakdown?
(Answer yes or no) Yes
9. As of April 19, 1975, did Darrell Ford know that the duties requested of Mrs. Martinez would cause or contribute to her mental breakdown?
(Answer yes or no) No .”

Appellants argue imposition of liability for the April 19, 1975 incident must be based on a factual finding that Darrell Ford knew the assignment to sort invoices in the storage area would cause or contribute to plaintiff’s mental breakdown. When the jury found no knowledge, it is contended, the verdict awarding damages for this incident was inconsistent with the factual finding. Under these circumstances, appellants urge, the trial court was required by Code of Civil Procedure Article 1812 to: (1) enter judgment consistent with this answer; (2) require the jury to deliberate further; or (3) grant a new trial. They further claim the case of Samson v. Southern Bell Telephone & Telegraph Co., La.App., 205 So.2d 496, is controlling and holds that tort liability of an executive officer for nervous disorders caused by a job assignment is present only when the officer knows the work will produce a nervous breakdown.

We disagree with both contentions. While decisions of the Court of Appeal, First Circuit, often furnish guidance and enlightenment, they are not controlling on this circuit. Second, we interpret the holding therein to impose liability on a responsible officer who requires performance of a duty which he knows or reasonably might be expected to know would produce deleterious results. The court in Samson was careful to point out the facts of each case should be individually considered.

In Samson, the worker was ordered to perform a task which the supervisor knew his treating psychiatrist advised against. Plaintiff suffered a breakdown and filed suit for workmen’s compensation and, alternatively, sued the supervisor in tort, alleging the officer knowingly assigned him to duties he could expect would produce nervous disorders. The appeal was from a trial court judgment dismissing both demands on an exception of no cause of action and the allegations of the petition were treated as true. After holding workmen’s compensation was not available to a claimant suffering mental stress because it was not an accident within the meaning of the Workmen’s Compensation law, the court concluded he could sue in tort.

The Samson court simply held that a petition alleging an employee suffered a breakdown from a job assignment that the supervisor knew might produce this result stated a cause of action. It reasoned the duty to provide a safe place to work not only included safe physical surroundings but the duty to refrain from assigning employees to duties which knowingly might create stress and mental harm.

Hence, once the jury found Ford “knowingly, intentionally and deliberately” required plaintiff to perform duties that caused or contributed to her mental breakdown, it was proper to award damages for the condition assuming the evidence supported this finding. Civil Code Article 2315: “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”

The evidentiary basis for this finding is sound. Plaintiff returned to work on a trial basis and on her very first assignment, Ford sent her into the storage area of the building and required her to move heavy boxes and sort invoices. Before she left the office to do this task, several coworkers protested the assignment and offered to go in her place. Plaintiff was 50 years of age. Usually, if digging through old records was required, two employees were sent because of the weight of the boxes. The assignment was unusual and unreasonable to the extent that the usual assistant was not furnished.

We conclude the evidence supports the jury finding of liability for both incidents.

QUANTUM

Defendants next argue the jury verdict on quantum, itemized below, is excessive:

“GENERAL DAMAGES
For pain and suffering, past, present and future, related to those injuries suffered. $147,000.00
SPECIAL DAMAGES
Loss of past wages. 39,000.00
Loss of future wages (impairment of earning capacity). 67,000.00
Medical expenses (past, present, and future). 232,000.00”

Waterbury personnel took plaintiff to Dr. William Roy immediately after the February fall, and he, in turn, sent her to a hospital emergency room for a neurological checkup. There she saw Dr. Richard Levy, a neurosurgeon, who diagnosed her condition as a mild concussion with an abnormal emotional response and released her from the hospital two days after she was admitted. In two outpatient visits to his office in March she complained of headaches and nervousness, but was advised she could attempt to return to work. She did not see Dr. Levy again until June 2,1975, six weeks after the April incident, when she had complaints of numbness of both hands, headaches and dizziness. Concluding the problems were emotional rather than organic in origin, Dr. Levy suggested plaintiff consult a psychiatrist.

On June 22, 1975, she saw Dr. Millard Jensen, a psychiatrist, who has treated her on a continuing basis since that time and anticipates having her as a patient for the rest of her life. Dr. Jensen testified the February fall precipitated the emotional breakdown and was of the opinion that both incidents caused a mental disintegration which prevents plaintiff from functioning in normal ways. Her physical symptoms at various intervals have been double vision, fainting, severe headaches, and weak spells accompanied by nausea and vomiting. Her emotional state is marked by frequent depression and anxiety. Between the time of initial treatment and trial, plaintiff had been hospitalized twice for psychiatric treatment. Dr. Jensen explained she functions best in a sheltered environment, such as a hospital where most of her needs are met by someone else.

The fainting or blacking out has caused plaintiff to fall frequently and this has produced orthopedic problems. In this regard she first consulted Dr. Courtney Russo, an orthopedist, in May, 1976 with complaints primarily in the area of the lumbar spine. He recommended conservative treatment including the use of a wedge in one shoe to compensate for a pelvic tilt, and a back corset. By January, 1977, the lumbar spine problem apparently subsided until May, 1978. In Dr. Russo’s opinion the February and subsequent falls could have activated a dormant arthritic condition.

Plaintiff also had complaints in the cervical area for which she was hospitalized three times and treated with traction and heat. In addition, Dr. Russo operated on both wrists to release a pinched nerve in each hand. He had not seen plaintiff for at least six months prior to trial, had prescribed traction for the cervical area at her home, and had told her to return on an “as needed” basis.

In summary, the unrebutted medical testimony establishes plaintiff suffered from severe mental problems which have produced physical complaints partially psychological in origin. The arthritic condition, aggravated by occasional falls, also has activated orthopedic problems. More seriously, plaintiff’s present inability to cope with the routine activities of daily living is a disabling condition which does not appear to have any resolution.

In our view, considering that plaintiff was 50 at the time of the incidents in suit, an award of $147,000 in general damages does not exceed the “much discretion” which Civil Code Article 1934(3) vests in the jury. We are of the opinion the general damages award is at least on the generous end of the quantum spectrum; and what constitutes the boundaries of “much discretion” on the high and low sides defies precise definition. But, in this case, we conclude the rule of Coco v. Winston Industries, Inc., La., 341 So.2d 332, and similar cases compels us to affirm the general damages award.

SPECIAL DAMAGES

Appellants contend the proof offered by plaintiff fails to support the awards for loss of past and future wages. We agree. Economist Dr. Melvin Wolfson based both computations on a salary of $200 per week. However, Waterbury’s records reflect that plaintiff was earning a gross weekly salary of $160 and a net weekly salary (after taxes) of $121.04 at the time of the incidents. As a recovery of lost wages is taxable as income, the former amount is the proper basis to make the computations.

We compute loss of past income by multiplying the weekly salary of $160 by the number of weeks of unemployment between the incidents and the trial (204) and arrive at $32,640, or $6,360 less than the amount awarded by the trial court judgment for that item.

As to loss of future wages, we note Dr. Wolfson testified plaintiff had an 8.4 year work life expectancy from the date of the trial. Using the $200 per week salary base and rounding off the income to the nearest thousand figure, he projected loss of annual income of $10,000. Multiplying annual income by life expectancy, he concluded future lost earnings would total $84,000, and discounting this figure by 5%, he concluded $67,200 would compensate for future lost wages. Although Wolfson made an upward adjustment to $74,500 to allow for the inflation factor, the jury apparently disregarded this testimony and rounded off his discounted figure to the nearest thousand in fixing the loss at $67,000. Again, this award must be adjusted to actual income. Because her actual income was $160 and not $200, the amount used by Wolfson as a base, we reduce the award for loss of future wages to 80% (a reduction of $13,400): $67,000 X .80 = $53,600.

Finally, we consider the award of $232,-000 for past and future medical expenses. As the litigants stipulated plaintiff’s medical expenses to date of trial were $23,-521.73, the award for future medical expenses was, in round figures, $208,000. Dr. Jensen, who was accepted by the trial court as an expert in both psychiatry and neurology, testified plaintiff would require outpatient psychiatric care at a cost of $200 per month for the remainder of her life. In addition, she will need medical help, particularly because of a chronic back problem which resulted from a fall during a blackout spell. He was of the further opinion that plaintiff will require future hospitalizations, both medical and psychiatric, each of which could cost several thousands of dollars. Plaintiff has a 26 year life expectancy.

As the record does not contain any evidence which effectively contradicts the above, we cannot conclude the jury abused its discretion in its award for future medical expenses.

For the reasons assigned, the judgment appealed from is amended to reduce the total award from $485,000.00 to $465,240.00. As thus amended, and in all other respects, the judgment is affirmed. Plaintiff-appel-lee is to pay the costs of this appeal.

AMENDED AND AFFIRMED.

      . Plaintiffs cause of action arose prior to passage of Louisiana Acts 1976, No. 147, § 1, which amended R.S. 23:1032 to restrict executive officer liability to intentional torts.

      . United States Fidelity and Guaranty Company, also the workmen’s compensation insurer, filed a petition of intervention to recover benefits paid from the judgment in plaintiffs favor. Accordingly, judgment was rendered awarding intervenor $36,911.73.


source: Caselaw Access Project

author: CHIASSON, Judge.

license: Public Domain

text:
    Steve DYE v. KEAN’S d/b/a Red Stick Custom Apparel & Linen Service, et al. Leslie LANDER v. KEAN’S d/b/a Red Stick Custom Apparel & Linen Service, et al.
    Nos. 14465, 14466.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Vincent J. Glorioso, Jr., Irving J. War-shauer, Eldon E. Fallon, New Orleans, for plaintiffs-appellants, Steve Dye and Leslie Lander.
    Ralph Hillman, Thibodaux, for Steve Dye individually.
    Gerard M. Dillon, New Orleans, for defendant-appellee, Kean’s d/b/a Red Stick Custom Apparel & Linen Service.
    Before CHIASSON, EDWARDS and PONDER, JJ.
   CHIASSON, Judge.

Plaintiffs-appellants in these consolidated actions, Steve Dye and Leslie Lander, appeal the judgment of the trial court dismissing their respective suits for damages against defendant-appellee, Kean’s d/b/a Red Stick Custom Apparel & Linen Service.

Appellants argue the trial court erred in its findings that the uniforms furnished by defendant, through an agreement with their employer, were not a cause-in-fact of their injuries and that flame retardant uniforms, not furnished by the defendant, would not have protected appellants.

In denying appellants’ claims, the trial judge in excellent written reasons has fully and correctly answered the complaints of appellants made in this appeal. We have examined the entire record and conclude that the trial judge’s findings of fact are supported by the record and that the applicable law was correctly applied to those facts.

For the reasons assigned by the trial judge in his Reasons for Judgment, a copy of which is attached hereto, marked “Appendix” and made part hereof, the judgments of the trial court in these consolidated suits are affirmed at appellants’ costs.

AFFIRMED.

‘APPENDIX”

STEVE DYE 17TH JUDICIAL DISTRICT COURT

VERSUS NUMBER 36689

KEAN’S D/B/A REDSTICK CUSTOM APPAREL & LINEN SERVICE, ET AL PARISH OF LAFOURCHE

CONSOLIDATED WITH:

LESLIE LANDER STATE OF LOUISIANA

VERSUS NUMBER 35690

KEAN’S D/B/A REDSTICK CUSTOM APPAREL & LINEN SERVICE, ET AL DIVISION “A”

*****************************************

REASONS FOR JUDGMENT

****************************************

I. FACTS

In 1974 the American Gulf Shipbuilding Corporation (hereinafter referred to as American) operated a shipyard near the La-rose community in the Parish of Lafourche, State of Louisiana. On June 24, 1974, American entered into a lease agreement with Kean’s, a commercial partnership doing business under the trade name of Redst-ick Custom Apparel & Linen Service (hereinafter referred to as Kean’s), for work uniforms for its employees. Prior to that time the employees of American were permitted to wear clothing of their own choosing. After this agreement was entered into all employees of American were required to wear the uniforms selected by the management. A portion of the rental cost of these uniforms was deducted from the salaries of the employees.

The management of American selected work uniforms for its employees which were made of 65% polyester and 35% cotton (hereinafter referred to as 65-35). A 100% cotton uniform was not accepted. Flame retardant uniforms were not offered by Kean’s nor requested by American at this point in time.

Prior to May of 1975, complaints were received by the management of American from some of their employees indicating that the sparks generated by the welding process would melt through the 65-35 uniform and sting the employees. No burns requiring medical attention were reported and there were no reports that these uniforms burst into flames. American directed correspondence to Kean’s to determine whether more suitable and/or fire retardant uniforms were available. Kean’s then offered a 100% cotton uniform as an alternative but the use of this uniform was rejected by the management of American. No flame retardant uniforms were offered by Kean’s and none were ever used by American.

On March 16, 1976, plaintiff, Leslie Lander, was employed by American as a leader-man of a pipe fitting crew. Plaintiff, Steven Dye, was employed as a pipe fitter in Lander’s crew. Richard Gierlinski was employed as Dye’s helper in the crew and Jerry Thomassie was the crew’s foreman.

On March 16, 1976, Jerry Thomassie directed Lander to proceed to the galley of a vessel under construction in the American yard and clean a pipe threading machine. Lander directed Dye to secure safety solvent and disassemble the machine and clean it. Dye in turn directed Gierlinski to proceed to the paint department and ask someone in the department to provide him with solvent to clean the machine. Dye contends that he specifically directed Gierlinski to secure safety solvent but Gierlinski indicated that he did not recall being directed to get safety solvent, only solvent, but could not state positively that Dye did not say safety solvent. Dye did not inform Gierlin-ski of the difference between regular solvent and safety solvent, the importance of securing safety solvent, or what action to take if no one was present in the paint department. Gierlinski proceeded to the paint shed but no one was present. On his own initiative, Gierlinski secured a cutoff plastic gallon jug and drew some solvent from a barrel that he found. Gierlinski did not read the label on the barrel and the barrel was not clearly marked. The substance that he drew from the barrel was methyl ethyl keytone (hereinafter referred to as MEK), a highly volatile and flammable solvent and paint thinner. Gierlinski, by his own admission, was not aware of the importance or difference between this type of solvent and safety solvent.

Gierlinski returned to the galley of the vessel under construction and gave the jug of MEK to Lander and Dye who commenced cleaning the pipe threading machine with rags that were dipped in the MEK. Lander was called to the back or rear deck of the vessel and Dye continued cleaning the pipe threader. For at least a portion of the time that Dye was cleaning the machine, Ernest P. Daigle, Sr., a pipe fitter, and Russell J. Adams, a fitter-welder, were in the galley laying out pipe. After Dye completed cleaning the machine, he and Ernest Daigle entered into a conversation for several minutes. Because it was a company policy that no welding would take place in the presence of flammable liquids or gases, Daigle asked both Lander and Dye if it would permissible for Adams to commence some of his tack welding duties. Both Lander and Dye advised Daigle that it was permissible to commence. Dye was holding the container of MEK in his left hand and none of the persons present in the room were aware that the container had MEK. Daigle directed Adams to commence his tacking operations. When Adams struck an arc with his welding rod, sparks were made which ignited the MEK vapor over the liquid MEK in the container in Dye’s left hand and/or the MEK vapor which was around Dye at this time. Dye appeared to “go up in a ball of flames” and the 65-35 uniform that he was wearing caught on fire and commenced burning. Dye ran from the galley down a passageway toward the rear deck of the vessel calling for Lander. Lander ran to assist Dye and attempted to put out the burning uniform with his hands and body. Other workers in the area joined in to assist in putting out the burning uniform. Dye received substantial burns from this incident. Lander subsequent to this incident became psychiatrically disabled to perform any work.

II. APPLICABLE LAW

A. ARTICLE 2317

A majority of the present Louisiana Supreme Court has interpreted Article 2317 of the Civil Code to impose strict liability or liability without fault on an owner or custodian of a thing for damages caused by a thing in his custody. This liability is said to arise from the legal relationship to the thing whose defect causes or creates an unreasonable risk of injury to others. Jones v. City of Baton Rouge, 388 So.2d 737 (La.1980); Loescher v. Parr, 324 So.2d 441 (La.1976). The elements of proof for a plaintiff in an Article 2317 case are as follows: (1) the thing which caused the damage was in the care and custody of the defendant; (2) the thing had a vice or defect that created an unreasonable risk of injury to another; (3) the injury was caused by the defect. The only defenses available to a defendant against an Article 2317 claim are (1) victim fault; (2) fault of a third person; and (3) the harm was caused by an irresistable force.

B. ARTICLE 2695

Article 2695 of the Civil Code provides as follows:

The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.

At least two essential elements of a lessor’s liability under Article 2695 are that the thing leased had a vice or defect and that the damage or injury to the lessee resulted from or was caused by the vice or defect. Lessee fault is a defense to a lessor under an Article 2695 claim. The majority rule in Louisiana jurisprudence is that Article 2695 applies only in the relationship between the lessor and the lessee. Third persons are not entitled to the provisions of Article 2695 and are required to seek relief under the cause of action established by Article 2315. Weiland v. King, 281 So.2d 688 (La.1973); Albritton v. J. C. Penney Co., Inc., 385 So.2d 549 (La.App. 3rd Cir. 1980); Reed v. Ramsay, 355 So.2d 618 (La.App. 4th Cir. 1978); Jordan v. Palm Apartments, 353 So.2d 1120 (La.App. 4th Cir. 1977). CONTRA: Ward v. Conn, 344 So.2d 60 (La.App. 4th Cir. 1977); Jenkins v. Dixie Rental Tools and Casing Crews, Inc., 283 So.2d 271 (La.App. 1st Cir. 1973).

C. ARTICLE 2315

Under the prevailing duty-risk formula of tort liability for applying Article 2315 of the Civil Code the burden is on a plaintiff to establish the following: (1) the act or omission of the defendant was the cause in fact of the resulting injury to the plaintiff; (2) there was a duty on the part of the defendant to protect the plaintiff from the type of harm he suffered; and (3) a breach of that duty. Straley v. Calongne Drayage and Storage, Inc., 346 So.2d 171 (La.1977); Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821 (1970); Dore v. Cunningham, 376 So.2d 360 (La.App. 3rd Cir. 1979); Broyles v. Yarbrough, 374 So.2d 705 (La.App. 1st Cir, 1979); Kane v. Braquet, 368 So.2d 1176 (La.App. 3rd Cir, 1979). As pointed out in Albritton v. J. C. Penney Co. Inc., supra, under Article 2315 the owner-lessor of a thing has an affirmative duty to exercise reasonable care in maintaining the thing leased in a safe condition and of warning any third person whom he knows or should have known may come in contact with the thing leased of any concealed or hidden defects. In order for a third person-non-lessee to recover from a owner-lessor he must prove that the damages suffered were caused by a defect or vice in the thing owned and/or leased. Not every defect serves as a basis for a claim. The defect must be of such a nature as to constitute a dangerous condition which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. Thus, in Straley v. Cal-ongne Drayage and Storage, Inc., supra, at page 175, a case involving injury to a third party-employee of a lessee of the owner defendant, the Louisiana Supreme Court did not discuss liability under Article 2695 but analyzed the legal relations between the parties under Article 2315. The Court pointed out “that for alleged wrongful conduct to be actionable negligence it must first be found to have been a cause in fact of the resulting harm.” In Straley the Court found that the design of the equipment in question was defective and created an unreasonable risk of harm to users of the equipment and that there was liability under Article 2315.

III. CAUSE IN FACT

Under any theory of liability discussed in Section II above, an element of proof for a plaintiff is that the alleged defect in the thing was a “cause in fact” of the casualty. The evidence adduced at the trial of the case shows that the alleged defects in the 65-35 uniform were not a cause in fact of the casualty. The fire which engulfed Dye was caused by the striking of the arc with the welding rod by Russell J. Adams, which was done with the consent of Dye and Lander. The sparks generated by the striking of the welding arc ignited the MEK vapors which were above and around the container being held in Dye’s left hand and which were on or about the uniform being worn by Dye. The MEK was present in the galley of the vessel at the time in question because the management of American failed to properly mark the barrels containing safety solvent and MEK in the paint department, Richard Gierlinski failed to locate someone from the paint department to secure the proper solvent, and Dye failed to properly advise Gierlinski on how to obtain the proper solvent for cleaning the pipe threading machine.

The testimony of Dr. Joseph A. Moylan, which is accepted by this Court, shows that the cause of the burns sustained by Dye was the ignition of the MEK in and about his clothing causing the clothing to burn, and not the burning characteristics of the material. This opinion is substantiated by the fact that the exposed areas of Dye’s body were the most severely burned or at least equally severely burned as the areas under the uniform. (Tr. pp. 569 and 570) Dr. Moylan’s opinion is also substantiated by the scientific evidence presented by other experts in this case. A full thickness burn of the skin can occur from an exposure of the skin to a heat of 170 degrees Fahrenheit for one second. (Tr. pp. 568 and 601) The heat generated by burning MEK is approximately 1800 to 1900 degrees Fahrenheit. (Tr. pp. 144, 194, 666, and 667) MEK vapor had obviously permeated Dye’s uniform. (Tr. p. 445) Even if Dye had been wearing a uniform made of fire retardant material the heat of ignition of the MEK would have subjected his body to temperatures up to 400 degrees Fahrenheit. (See exhibits D-17, D-22, D-23, and Tr. p. 600) A fire retardant uniform permeated with MEK would not have provided protection for Dye under the facts and circumstances of this case. (Tr. pp. 612, 613, and 616) This is particularly true with reference to the severe burns on Mr. Dye’s hands and neck which were not covered by material.

Accordingly, it is the opinion of this Court that the alleged defects in the 65-35 uniform provided by Kean’s were not a cause in fact of the fire and subsequent casualties in this case.

IV. DEFECT

Under any theory of liability discussed in Section II above the burden is on a plaintiff to prove that the casualty resulted from a defect in the thing. It is well settled in the law that customary practices may be relevant to determine negligence even though they are not conclusive or controlling in the judicial determination of fault. Guilbeau v. Liberty Mutual Ins. Co., 338 So.2d 600 (La.1976). The testimony of every professional welder, in this case indicates that no welder in the Gulf Coast area of the United States has ever used a fire retardant uniform before or since the casualty in this case to conduct his welding activities. (Tr. pp. 23, 61, 70, 85, 86, 474, 512, and 513) The testimony of Gilbert Karcher of Red Kap Industries, a manufacturer of industrial garments, shows that the 65-35 uniform was suitable for welding and that to his knowledge no flame retardant uniforms which were manufactured by Red Kap Industries are used for welding in the Gulf Coast area. Mr. John Kean, III, testified that none of the customers that his firm supplies with industrial uniforms uses flame retardant uniforms for welding purposes in the Gulf Coast area. None of the experts that testified in this case was aware or had knowledge of the use of flame retardant uniforms for welding purposes in the Gulf Coast area of the United States.

The experiments conducted by George S. Buck, Jr. demonstrated that the 65-35 uniform is suitable for welding and does not burst into flames from welding sparks. (See exhibits D-17, D-18, D-19, and Tr. 591 to 597) The 65-35 blend material used in welding uniforms complies with the Flammable Fabrics Standards of the Federal government. (Tr. pp. 619, 620, and 175) While there was evidence introduced to indicate that welding sparks melted through the 65-35 uniform more readily than they would burn through a 100% cotton uniform, the evidence also indicated that the sparks would burn through both and neither burst into flames or cause significant injury. Even though apparently a majority of welders prefer the 100% untreated cotton uniforms, it appears that the burning characteristics of the 65-35 uniforms are not as hazardous as the 100% cotton uniforms. The spontaneous ignition temperature of cotton is 850 degrees Fahrenheit whereas the spontaneous ignition temperature of polyester is approximately 100 degrees higher. (Tr. pp. 180 and 181) From this it is apparent that a 100% cotton uniform will catch fire at a lower temperature and before a 65-35 uniform. Although polyester releases twice as much heat energy per volume on complete burning, as compared to cotton, polyester only burns 40% to completion and thus produces less heat of burning than cotton. The 65-35 blend produces less heat in burning than either pure cotton or pure polyester. (Tr. pp. 182, 413, and 663 to 665) The heat of burning after-glow of residue left by 100% cotton is 2000 degrees Fahrenheit. (Tr. pp. 666 and 667) It is easier to extinguish a fire in 65-35 than in 100% cotton. (Tr. p. 668) Further, the fire resistant properties of flame retardant materials are rendered ineffective by contamination with volatile liquids such as MEK. (Tr. p. 616) The melting of polyester and the scaffolding effect caused by the burning of 65-35 does not add to the area or depth of a burn. (Tr. pp. 562 to 584) The plaintiffs have introduced no evidence to show that the use of a 65-35 uniform is in violation of any Federal, State, or Local governmental regulations.

Accordingly, it is the opinion of this Court that the plaintiffs have failed to prove that 65-35 uniforms have vices or defects that render them unsuitable for use in normal welding operations.

V. UNDECIDED ISSUES

Because of the rulings of this Court on the issues of cause in fact and defect, it is unnecessary for this Court to pass upon the following issues: (1) what constitutes victim fault? See Rodrigue v. Dixilyn Corporation, 620 F.2d 537 (1980) and Sullivan v. Gulf State Utilities Company, 382 So.2d 184 (La.App. 1st Cir, 1980); (2) was either plaintiff guilty of victim fault?; (3) was either plaintiff guilty of contributory negligence?; (4) is assumption of risk a defense to claims under Articles 2317 and 2695?; (5) did either plaintiff assume the risk of injury in this case?; (6) is the duty of an owner of property leased to another the same of that of one who sells property to another? (See Chappuis v. Sears, Roebuck, & Co., 358 So.2d 926 (La.1978)); (7) in the contemplation of Article 2317 was the “custody” of the leased uniform in the owner-lessor, Redstick, or in the lessee, American, or in the user, Steven Dye, or any combination thereof? (See Cardwell v. Jefferson Rental, 379 So.2d 255 (La.App. 4th Cir. 1979)); (8) was Steven Dye a lessee of the 65-35 uniform?; (9) are third persons entitled to the cause of action under Article 2695?; (10) what is the liability, if any, of the alleged joint tortfeasors who effected settlements with the plaintiffs prior to the trial insofar as this affects a pro-rata reduction of any quantum award?; and (11) what is an appropriate quantum for each plaintiff if there is liability?

VI. CONCLUSION

Because of the above rulings of this Court on the issues of cause and fact and defect, judgment will be rendered in favor of the defendant, Kean’s d/b/a Redstick Custom Apparel & Linen Service and against the plaintiffs, Steven Dye and Leslie Lander, dismissing the petitions of the plaintiffs with prejudice at plaintiffs’ costs.

Judgment will be rendered accordingly,

JUDGE WALTER I. LANIER, JR.

17th Judicial District Court

Parish of Lafourche, Division “A”

s/ Walter I. Lanier. Jr.


author: LOTTINGER, Judge.

text:
    Vernon VILLARS, d/b/a Villars Construction and Remodeling Company v. Lawrence A. EDWARDS.
    No. 14526.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Rehearing Denied April 13, 1982.
    Writ Denied June 4,1982.

      Leo J. Berggreen, Baton Rouge, for plaintiff-appellant Vernon Villars, d/b/a Villars Const, and Remodeling Co.
    Felix R. Weill, Baton Rouge, for defendant-appellee Lawrence A. Edwards.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   LOTTINGER, Judge.

This is a suit on an alleged oral building contract by plaintiff, Vernon Villars, d/b/a Villars Construction and Remodeling Company, contractor, against Lawrence A. Edwards, owner, for money still due and owing. Defendant reconvened, seeking damages caused by the faulty workmanship of Villars. The trial court rendered judgment in favor of plaintiff, Villars, on the main demand, and in favor of defendant, Edwards, on his reconventional demand. Both parties have appealed, and Edwards has answered the Villars’ appeal, seeking an increase in the amount awarded in the re-conventional demand.

The causes of action arose when Lawrence Edwards and his wife decided to build an addition to their house in Baton Rouge. The Edwardses, after having plans and specifications drawn up, began to solicit bids from contractors. Following an informal negotiation process, Villars was chosen for the job on or about November 21, 1978. Work commenced shortly thereafter. No written contract was ever signed by the parties. Villars received two thousand dollars from Edwards before commencing work. This money was deemed an “initial working fund.” It was agreed that Villars would submit weekly invoices to Edwards. The amount of the invoices represented the costs of labor and materials expended, plus Villars’ profit margin of twenty-five percent, of which ten percent was for general administration and fifteen percent was for superintendence and management. By the use of weekly invoices, the parties hoped to expedite work and allow Villars to enjoy his profit at an earlier time.

During December of 1978, Edwards began to have apprehensions about the cost of the project and the quality of the work being performed. Villars volunteered to reduce his profit margin to twenty percent to help keep costs down.

On January 19, 1979, Edwards informed Villars that he was terminated from the project, citing cost overruns and poor workmanship as the reasons for his dismissal. At the time of Villars’ termination, Edwards had already paid $20,671.89 to Villars through weekly invoices. After his termination Villars submitted a final invoice on January 22, 1979, in the amount of $7,774.71. A portion of this amount represented the reinstatement by Villars of the five percent of profit which he had previously volunteered to forego. Villars filed suit for the amount of the final invoice.

Edwards reconvened, alleging that the parties had agreed that the cost of the project would not exceed $28,000, that completion of the job after Villars was fired resulted in an eventual total cost much higher than the maximum guaranteed price, and that faulty workmanship by Vil-lars created costly repairs and other additional expenses. Edwards claimed total damages of $74,041.25, against which he set off the alleged maximum guaranteed price of $28,000; hence, the amount of the recon-ventional demand by Edwards was $46,-041.25.

Villars subsequently amended his petition to allege in the alternative that if no contract was ever perfected between the parties, he was entitled to recovery under quantum meruit theory.

Villars was awarded $1,028.81 on the main demand, and Edwards obtained judgment on the reconventional demand in the amount of $5,900.00. Costs were divided equally between the parties.

ISSUES ON APPEAL

Villars contends on appeal that the trial judge erred in awarding damages on the reconventional demand. He argues that the trial judge gave damages for an alleged breach of contract by Villars, when in fact no contract was consummated between the parties. Alternatively, Villars argues that the amount of damages given under the reconventional demand was not supported by the evidence.

Edwards asserts that the trial court erred in allowing Villars a profit on the final invoice, since the building contract had not been substantially completed. Edwards argues that a deduction of profit from the amount granted Villars on the main demand would result in his owing nothing to Villars. Edwards also asserts in answer to Villars’ appeal that Villars should be held liable for all costs in excess of the alleged guaranteed maximum cost of $28,000; and alternatively, that even if no contract existed, evidence at trial showed greater damages in reconvention than were awarded by the trial judge.

I

The basis for recovery under the main and reconventional demands, as well as the items of damage which may be recovered, depends on an initial determination of whether a contract existed between the parties, and if so, what were the terms and conditions of same.

One of the requisites of a valid contract is an object which forms the matter of the agreement. La.C.C. art. 1779. The object is something which one or both of the parties oblige themselves to give, or to do, or not to do, La.C.C. art. 1883, and it must be determinate as to species, and at least ascertainable as to quantity. La.C.C. art. 1886. Article 1764 states in part that if that which is the essence of the contract is missing, there is no contract at all. The Louisiana courts have interpreted these and other codal provisions to mean that it is essential to the formation of a contract that the nature and extent of the obligations therein be certain. Jones v. Janes, 156 La. 715, 101 So. 116 (1924); White Properties, Inc. v. LoCoco, 377 So.2d 474 (La.App. 4th Cir. 1979), writ denied 380 So.2d 99 (La.1980).

In the context of home building contracts, the obligation of the contractor is one to do, that is, to build an edifice. The obligation of the homeowner is to give money. Thus, under the above-cited articles of the Civil Code, the amount of money which the homeowner will pay for his new construction must be determinate or at least ascertainable in order that a valid construction contract be formed.

In the case sub judice, Edwards alleged and sought to prove that the parties orally agreed that the total cost of building the house addition would not exceed a guaranteed maximum of $28,000. Villars insisted that the parties agreed that the price would be determined on a “cost-plus” basis, that is, the costs of labor and materials, plus a profit margin. Both parties agreed that the method of payment would be by weekly “cost-plus” invoices. The only dispute is whether the parties agreed orally that the total cost would not exceed $28,-000. A written contract between the parties was never signed. The trial judge held that there was no “meeting of the minds” between the parties as to price, and that no contract came into existence. The trial judge added that both parties were equally to blame for the confusion as to price.

Our review of the evidence demonstrates to us that the trial judge was eminently correct in holding that a building contract with a guaranteed maximum cost of $28,000 never came into existence. Both parties were equally adamant on the witness stand as to the nature of preliminary negotiations which preceded construction. Edwards and his wife insisted that Villars promised to complete the entire project for $28,000. Villars testified that he had given $28,000 as a general or “ballpark” estimate but that he never gave an absolutely firm maximum price because he was unable to do so, due to alterations in the plans and specifications which both parties agreed would be necessary. The self-serving testimony of the parties was the only evidence of the agreement in the absence of a written contract. Since no agreement was made as to price, neither party can recover for the breach.

II

The fact that no contract was consummated does not necessarily mean that the parties are left without legal redress. The civil law of Louisiana recognizes the equitable doctrine of quantum meruit, based on the concept that one who benefits by the labor and materials of another should not be unjustly enriched thereby. Under those circumstances, the law implies a promise to pay a reasonable amount for the labor and materials furnished, even absent a specific contract therefor. The equitable doctrine of quantum meruit is based on the theory of quasi-contract, La.C.C. Arts. 2292-2294, and on the Christian principle of fairness proclaimed in La.C.C. Art. 1965.

Hence, although no oral contract was consummated between the parties because there was no “meeting of the minds” as to price, we hold that Villars is entitled to recover under the quasi-contractual theory of quantum meruit, see Kleinschmidt, Brassette and Associates, Inc. v. Ayres, 368 So.2d 1153 (La.App. 3rd Cir. 1979). Ironically, the claim of Villars on the main demand represents what would be a typical quantum meruit recovery, i.e., to be paid for what work was completed.

Under quantum meruit, Villars is entitled to recover the amount of materials and labor actually expended, plus a fair profit. Skains v. White, 391 So.2d 1327 (La.App. 2nd Cir. 1980); McMorris v. Pepperdene, 292 So.2d 892 (La.App. 1st Cir. 1974), writ denied 294 So.2d 840 (La.1974). Edwards argues that since he personally paid some materialmen on the final invoice, that these amounts should be deducted before figuring the profit margin. This argument is seductive, but overlooks the fact that Villars had to go out and buy these materials and incur expenses in seeing them delivered and installed. Edwards should not be able to deprive his contractor of a profit simply because he has paid off materialmen directly, without the contractor’s knowledge.

The trial judge assessed Villars a twenty percent profit margin; however, the $2000.00 “working fund” initial capital was set off against the invoice amount prior to assessing the amount of profit. This we feel is erroneous; the amount of profit due under the final invoice should be based solely on the amount of labor and materials expended. Credit for the initial payment should be assessed only after determining the total amount due Villars. Similarly, credit for the amount paid directly by Edwards to various materialmen should be assessed after determining the total amount due under the final invoice, including profit and overhead. We find that the amount due under the main demand is as follows:

$ 7,430.00 labor and materials on final invoice
+1,486.00 20 percent profit margin 8,916.00
-2,000.00 credit for “working fund” initial payment 6,916.00
-5,487.81 credit for direct payments to materialmen
$ 1,428.19 amount due Villars under main demand

III

Villars argues that the trial court erred in granting judgment to Edwards on the re-conventional demand. His position is that the damages given Edwards were for his alleged breach of contract, but that such an award was unfounded since the trial court ruled that no contract ever came into existence. Villars contends that the award on the reconventional demand has no basis in law, and must be overturned.

Edwards urges us to apply La.C.C. Art. 2769. Generally, this article has been interpreted to mean that in every construction contract the contractor must perform the work in a good, workmanlike manner, free from defects attributable to faulty materials or poor workmanship, Calcon, Incorporated v. Young Companies, Inc., 322 So.2d 883 (La.App. 1st Cir. 1975). However, from the language of the article as well as from its position within the Civil Code, it is clear that a valid contract is a prerequisite to the article’s applicability. We have already concluded that no contract existed between Edwards and Villars, thus Article 2769 is not the vehicle of Villars’ liability in recon-vention.

Because of the existence of a quasi-contract, Villars was given judgment on the main demand. We refer again to Article 2293 of the Civil Code, which states in part that a quasi-contract may result in reciprocal obligations between the parties. Applying this article to the case at bar, we hold that Villars owed an obligation to perform his services in a workmanlike manner despite the absence of a valid contract, just as Edwards owed a reciprocal obligation to pay under quantum meruit for the work which was completed. To hold otherwise would be to totally ignore equity, which is the philosophical basis for the articles on quasi-contract.

Additionally, we note that Civil Code Article 1901 states that agreements legally entered into have the effect of law on those who have formed them. This article means that the contract is the law between contracting parties. However, where there is no valid contract, no express law exists to settle a dispute between parties such as those before this court. As a result, we are guided by Civil Code Article 21, which states that in civil matters where there is no express law, the judge is bound to proceed and decide according to equity. Article 21 further states that to decide equitably is to decide on the basis of natural law and reason, or on the basis of received usages. It is our opinion that an appeal to reason leads us to only one equitable result: that Villars, having been paid under quantum meruit for work performed, must be held liable for whatever damages are attributable to his poor workmanship.

IV

There is no question in our minds that much of the work on the addition performed by Villars was not done in a workmanlike manner. Leonard Bales testified on behalf of Edwards. Bales was a representative of the contracting firm which completed the house addition after Villars was terminated. Bales testified that twelve areas in the addition needed correcting prior to his finishing the addition. These repairs cost a total of $2300.00, and were performed by Bales & Price, the contractors who finished the addition. During the course of Bales’ work he performed an additional $250.00 worth of repair work on the chimney fascia. This amount was not included in the $2300.00 originally expended by Edwards for repairing poor workmanship. Thus, Edwards incurred out-of-pocket expenses of $2550.00 as a result of poor workmanship by Villars.

As a result of his termination, Villars left the worksite without cleaning it. The clutter which was left behind had to be cleaned up by Edwards and his wife. The clutter left behind was described during trial as a “horrible mess” by Bales. Our review of photographs of the worksite convinces us that Mr. and Mrs. Edwards faced an extremely unenviable task in clearing the worksite of debris. Bales testified that it would cost about $1500.00 in labor charges to have the worksite cleaned. Villars’ expert, Raul Gonzales, estimated $600.00 as costs for cleaning up. Edwards testified that the cleanup required several days of back-breaking labor. The trial court awarded $600.00 for cost of ridding the worksite of trash and debris. We accept the ruling of the trial court as to this element of damages.

The primary dispute as to damages does not concern the above-mentioned elements, but deals with a $3000.00 award which the trial judge gave for “general damages for work not done in a workmanlike manner and not reasonably repairable.” Villars argues that this is an award for mental anguish, inasmuch as Edwards did not actually expend any of this amount. Villars argues further that an award for mental anguish is not proper in a contract case. However, we are not deciding this case on the basis of a contract, since none existed. The case which is decided herein is determined on the basis of equity, and rules as to contractual damages do not apply. Furthermore, the $3000.00 award was not for mental anguish. Leonard Bales testifies as to a number of defects in Villars’ work which were not repaired. The reason these defects were not repaired is that Edwards did not have on hand the large amounts of money which would be necessary to effect repairs.

Bales testified that one bedroom wall was some two-and-one-half inches out of plumb. He also stated that there was a bulge in a wall some eighteen by twelve inches, and that the bulge protruded about two inches. The costs of repairing the walls was approximately $3,000.00, according to Bales. Another problem not repaired involved the center beam in the “great room” or den area of the addition. The beam was not centered correctly, and Bales estimated that it would cost $250.00 to properly align the beam. Bales further testified that the brickwork on the addition was “totally unacceptable” in that it was laid out of plumb and out of line, and that the joints had been roughly hacked instead of smoothly cut. Bales estimated that to repair the brick work would cost another $3000.00. Thus, the evidence shows that the addition still suffers serious defects. These defects are not merely an affront to aesthetics, inasmuch as they will adversely affect whatever resale value the house will have, should the Edwardses decide to sell. Edwards cannot be denied recovery simply because he did not have enough funds available to repair the defects which were caused by the poor workmanship of Villars. We hold that the existence of defects not reasonably repairable was supported by a preponderance of the evidence, and that an award of damages for same is proper.

Edwards argues that the award of $3000.00 damages for defects not reasonably repairable was inadequate and not in accordance with the evidence adduced. Edwards argues that the award given was much less than what Bales estimated would be the cost to repair these remaining defects. However, under Civil Code Article 1934(3), the assessment of damages in cases involving quasi-contracts is left to the trial judge, who is afforded much discretion in this area. Although Bales testified that $6250.00 would be required to repair the remaining defects, we are of the opinion that the trial judge's award of $3000.00 was well within the “much discretion" afforded under La.C.C. 1934(3).

Thus, we affirm the judgment of the trial court on the reconventional demand, except for amending the amount for actual expenses to $2550.00, which includes $250.00 of fascia work actually performed but not included in the original award of $2300.00 for out-of-pocket expenses. The damages on the reconventional demand are as follows:

$ 2550.00 repair work actually done
+ 600.00 estimate for cleanup work 3150.00
+ 3000.00 award of general damages for work improperly done and not reasonably repair-_able
$ 6150.00 Final award due on reconventional demand

Since we have determined that Edwards owes Villars $1428.19 on the main demand, and that Villars owes Edwards $6150.00 on the reconventional demand, we shall thereby effect a “judicial compensation” in order to avoid the necessity of reciprocal payments between the parties. Cf. La.C.C. art. 2207 et seq., Tolbird v. Cooper, 243 La. 306, 143 So.2d 80 (1962). The result of this judicial compensation is that judgment issue in favor of Edwards for $4721.81.

DECREE

Therefore, for the above and foregoing reasons, judgment is rendered herein amending and affirming the judgments of the trial court, and awarding to Lawrence H. Edwards the sum of Four Thousand Seven Hundred Twenty-one and Eighty-one/100ths ($4721.81) Dollars. Costs of this appeal are to be divided equally between the parties.

AMENDED and AFFIRMED.

      . Articles 2292-2294 reads:
      “Art. 2292. Certain obligations are contracted without any agreement, either on the part of the person bound, or of him in whose favor the obligation takes place.
      “Some are imposed by the sole authority of the laws, others from an act done by the party obliged, or in his favor.
      “The first are such engagements as result from tutorship, curatorship, neighborhood, common property, the acquisition of an inheritance, and other cases of a like nature. “The obligations, which arise from a fact, personal to him who is bound, or relative to him, result either from quasi contracts, or from offenses and quasi-offenses.
      “Art. 2293. Quasi contracts are the lawful and purely voluntary act of a man, from which there results any obligation whatever to a third person, and sometimes a reciprocal obligation between the parties.
      “Art. 2294. All acts, from which there results an obligation without any agreement, in the manner expressed in the preceding article, form quasi contracts. But there are two principal kinds which give rise to them, to wit: The transaction of another’s business, and the payment of a thing not due.”
      Article 1965 reads:
      “Art. 1965. The equity intended by this rule is founded in the Christian principle not to do unto others that which we would not wish others should do unto us; and on the moral maxim of the law that no one ought to enrich himself at the expense of another. When the law of the land, and that which the parties have made for themselves by their contract, are silent, courts must apply these principles to determine what ought to be incidents to a contract, which are required by equity.”

      . Civil Code Article 2769 reads:
      “If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.”

      . See footnote I, supra.


author: EDWARDS, Judge.

text:
    Antonio TIRANTE v. GULF STATES UTILITIES COMPANY, et al.
    No. 14595.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Rehearing Denied April 13, 1982.
    Writ Denied May 17, 1982.

      Roger M. Fritchie, H. Evans Scobee, Baton Rouge, for plaintiff-appellant Antonio Tirante.
    Ben L. Guelfo, Baton Rouge, for defendant-appellee Fischer Engineering Co.
    Boris F. Navratil, Baton Rouge, for defendant-appellee Robert Thibodeaux and Co.
    Charles S. McCowan, Michael H. Rubin, Baton Rouge, for defendant-appellant Ciba-Geigy Corporation.
    Paul H. Spaht, Baton Rouge, for defendant-appellant White Budd Vanness Partnership.
    W. Luther Wilson, Baton Rouge, for defendant-appellee Gulf States Utilities.
    Donald S. Zuber, Baton Rouge, for defendant-appellee Hughes-Gano Associates.
    Terrance C. McRea, Baton Rouge, for in-tervenor-appellee Great American Ins. Companies.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   EDWARDS, Judge.

Plaintiff, Antonio Tirante, brought this action seeking damages for electrical burns which he sustained while working on a construction project.

Antonio Tirante was injured while working on a cooling tower which had been constructed as part of a developmental building project for Ciba-Geigy Corp. at St. Gabriel, Louisiana. Tirante, an apprentice plumber, sustained severe electrical burns when the back of his neck came into contact with an uninsulated electrical line carrying 7,280 volts. The line was owned, operated and maintained by Gulf States Utilities Company. Tirante testified at trial that he had no recollection of the events surrounding his accident. No one witnessed plaintiff’s accident. Tirante was an employee of Bernard Mechanical Contractors, a subcontractor of Robert Thibodeaux and Co., Inc., general contractor on the project.

Made defendants in plaintiff’s action were the following: Ciba-Geigy Chemical Corp. (“Ciba-Geigy”), the owner of the building; Gulf States Utilities Company (“GSU”), the owner and operator of the electric line; Robert Thibodeaux and Co., Inc. (“Thibodeaux”), the general contractor; Frank P. Fischer Engineering Co., Inc. (“Fischer”), a consulting engineering firm on the project; and White, Budd, Van Ness Partnership (“White”), the architect on the project.

Thibodeaux was granted a summary judgment dismissing plaintiff’s demand on the basis of a “statutory employer” defense. See LSA-R.S. 23:1061. Great American Insurance Co., the workmen’s compensation insurer of plaintiff’s employer, Bernard, intervened in the action, seeking recovery of $16,921.89 in workmen’s compensation benefits paid to Tirante. The remaining defendants answered plaintiff’s petition, denying any negligence on their part and asserting plaintiff’s contributory negligence and assumption of the risk as special defenses.

Additionally, a number of third party demands were filed: Ciba-Geigy filed a third party demand against Thibodeaux, seeking contractual and tort indemnity and asserting breach of contract. Ciba-Geigy filed a similar third party demand against the architects and filed general tort indemnity and contribution demands against the other defendants. Thibodeaux’s insurers, the American Insurance Company and Fire-mens Fund Insurance Company were also added as third party defendants. White filed a third party demand similar to Ciba-Geigy’s general indemnity contribution claim. White also filed a third party demand against Hughes, Gano and Associates, Inc., the consulting electrical engineers on the project.

A jury trial commenced on Monday, February 2, 1981. At the close of plaintiff’s case all defendants moved for a directed verdict on the main demand. The trial court granted the motion for directed verdict in favor of all defendants. Plaintiff has appealed that ruling.

On Monday, February 9,1981, the trial of the contractual indemnity portion of Ciba-Geigy’s and White’s third party demands against Thibodeaux was resumed. The trial court rendered judgment in favor of Thi-bodeaux on these third party demands. By agreement of counsel, Ciba-Geigy’s third party demands against Thibodeaux and White for tort contribution or damages for breach of contract, as well as any other third party demands for tort contributions or damages due to breach of contract, were deemed moot by the trial court and reserved in the event that the case was remanded.

Tirante and Great American have appealed the trial court’s judgment for defendants on the main demand. Additionally, White and Ciba-Geigy have appealed the dismissal of their contractual indemnity claims against Thibodeaux.

MAIN DEMAND

As previously mentioned, the trial court granted defendants motion for a directed verdict and dismissed plaintiff’s action. Directed verdicts are authorized in civil jury trials by LSA-C.C.P. art. 1810, which provides in pertinent part, as follows:

“A. A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.”

The standard for granting a directed verdict was set forth in Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir. 1979):

“Moreover, since the source of LSA-C. C.P. article 1810A is the Federal Rules of Civil Procedure, we believe that the correct standard is that applied in the Federal Courts. See Madison v. Travelers Insurance Company, 308 So.2d 784 (La.1975). This standard is succinctly stated in the following language penned by the U. S. Fifth Circuit Court of Appeal in Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969):
On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the non-mover s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.” 373 So.2d 237, 239; See also Grimes v. Stander, 394 So.2d 1332 (La.App. 1st Cir. 1981).

The trial judge gave oral reasons for granting the directed verdict. The trial judge assumed, for purposes of the motion only, that all of the defendants were guilty of some fault that caused or contributed to the accident. He also recognized that there was the possibility of liability under LSA-C.C. art. 2317, so-called “strict liability” as well as under LSA-C.C. art. 2315, based on negligence. However, the trial court concluded that the evidence adduced established such strong proof of contributory negligence and victim fault that reasonable men could not arrive at a verdict in favor of plaintiff. We conclude that the trial court erred in this determination and in granting the directed verdict.

Because the trial judge based his decision on a finding of victim fault, he did not reach the issue of defendants’ fault in causing the accident. Our review of the record leads us to conclude that the evidence, when viewed in a light most favorable to the plaintiff, would allow reasonable men to conclude that any or all defendants caused plaintiff’s injury by virtue of substandard conduct. A review of the evidence presented establishes the potential liability of each defendant.

The electric line, carrying 7,280 volts, was installed several years before the cooling tower was constructed. At the time of the accident its sole purpose was to provide electricity, to a house trailer used by Ciba-Geigy for refilling and storing fire extinguishers. The cooling tower was constructed directly beneath the line. The line was a mere 6'4V4" above the top of the tower. There were pipes, valves and cooling fans located at the top of the tower which occasionally required the attention of workmen, such as plaintiff. The wire was suspended 5'3'/i" above these pipes. The proximity of the electric lines violated the minimum clearance requirement of the National Electrical Safety Code.

Samuel Schexnailder, Ciba-Geigy’s business manager, admitted that the slab for the cooling tower had been present under the line for quite a while. He conceded that one could have seen that the cooling tower would be directly under the line when constructed. Keith Conrad, project engineer for Ciba-Geigy, admitted that he saw the tower being built under the line and conceded that it was a hazard. Walter Newman, construction superintendent for Thibodeaux on the project, testified that he was aware of the line running over the cooling tower as soon as the building was laid out. Newman testified that he then asked Keith Conrad to have the line moved, but Conrad refused.

GSU installed the power line several years before the cooling tower was built. However, GSU repair crews twice worked on the transformer which served the Thibo-deaux construction shack without noticing the tower under the line. The transformer was connected to the line in question. Vernon Acaldo, a meter reader for GSU, read the meter at Thibodeaux’s construction shack every month but failed to notice the proximity of the line to the tower. Gulf States stipulated that the distance between the line and tower did not meet the minimum clearance requirement of the National Electrical Safety Code. All GSU employees admitted that their employment duties, included the duty to look for and note possible electrical hazards.

The White, Budd, Van Ness Partnership had been furnished by Ciba-Geigy with a drawing showing the location of the electrical line prior to their planning of the building’s location. James Budd visited the job-site ten times or more and additional visits were made by Carl Hoffpauir on a regular basis. Budd admitted that the line constituted a hazard, but that he never noticed it over the tower. Budd further conceded that it was one of his firm’s duties to inspect and supervise the construction project. Finally, Budd admitted that if he had become aware of the line, he would have requested its relocation, insulation or de-energization.

The trial court concluded that plaintiff would not be entitled to recover because of his own fault. We do not believe that the evidence, construed in a light most favorable to plaintiff, justifies such a conclusion.

Tirante was an apprentice plumber who had previously been on top of the tower five to ten times. On the day of his accident, he was sent by his foreman, John Clark, to adjust some valves located on the roof of the tower. Plaintiff has no recollection of any of the events surrounding his accident. Furthermore, no one witnessed his mishap on the top of the cooling tower. Plaintiff was discovered lying on the roof of the tower, having suffered severe electrical burns to the back of his neck and other parts of his body.

The testimony at trial and the exhibits filed in the record revealed the following information about the physical layout of the cooling tower: There are two large fans located on the roof of the tower. A 10" diameter pipe extends up the side of the tower from the slab to the roof. This pipe runs across the top of the roof on one side of the fans and is connected to each fan. The valve which plaintiff was sent to adjust is located in this pipe several feet from one of these fans. The pipe is suspended several inches off of the top of the roof. The roof of the tower consists of a decking material called “transite.” There is a wooden walkway on the opposite side of the fans from the pipe. This walkway extends from a ladder which provides access to the tower to the other side of the roof. The section of pipe containing the valve which plaintiff was sent to adjust is located several feet from the end of the walkway, and is suspended over transite decking material.

Hair from Tirante’s head was found on the electric line at a spot located directly over the pipe on the cooling tower roof. This was established to be the point at which the back of plaintiff’s neck came into contact with the wire. This point of contact with the wire was located approximately three feet from the valve which plaintiff was sent to work on. There is no wooden walkway around the pipe in that area. At that point, the electric line is above the transite decking, but only 5'3V2" above the top of the pipe.

The trial court based its finding of victim fault on its conclusion that Tirante voluntarily and unnecessarily exposed himself to the danger. Tirante admitted at trial that he had been warned and was aware of the proximity of the line and that the line was “hot.” Since Tirante is about 5'10" tall, the trial court concluded, correctly, that he must have been standing on the pipe when the back of his neck touched the line. Such action (standing on the pipe) constituted victim fault, the trial judge reasoned, because if Tirante had worked at floor level, “there would have been no exposure to any danger.”

The trial court’s conclusion that Tirante was unnecessarily standing on the pipe is not supported when the evidence is examined under the standard applied to directed verdicts. Tirante testified at trial that he did not know that the transite decking could be walked on. This testimony was uncontradicted. There is no wooden walkway in the area where Tirante was injured. Additionally, Tirante testified that he had always seen his foreman, Clark, adjust the valve by standing on the pipe and kicking the valve loose. Finally, we note that Tir-ante apparently came into contact with the wire while standing on the pipe at a point about three feet in distance from the valve on which he was working.

Our review of the evidence contained in the record, viewed in a light most favorable to plaintiff, brings us to the conclusion that reasonable men could conclude that Tirante did not voluntarily and unnecessarily expose himself to the danger of contacting the electric line.

It is well established in our jurisprudence that contributory negligence is never presumed, but must be proved as any other fact by a preponderance of the evidence. Harper v. New Orleans Public Service, Inc., 300 So.2d 546 (La.App. 4th Cir. 1974); Layne v. Louisiana Power and Light Co., 161 So. 29 (La.App. 2nd Cir. 1935). It is equally well established that when a person is in the presence of a known danger, it must be shown that the plaintiff voluntarily and unnecessarily exposes himself to that danger. Harper v. New Orleans Public Service, Inc., supra; Stansbury v. Mayor and Councilmen of Morgan City, 228 La. 880, 84 So.2d 445 (1955).

Even though a workman may be aware of the existence of an electrical power line, it is not an assumption of the risk per se, nor is it negligence per se, to work in close proximity to those lines. Dyson v. Gulf Modular Corp., 338 So.2d 1385 (La.1976); Harper v. New Orleans Public Service, Inc., supra; O'Keefe v. Warner, 288 So.2d 911 (La.App. 1st Cir. 1973); Barrois v. Service Drayage Co., 250 So.2d 135 (La.App. 4th Cir. 1971). As Judge Redmann of the 4th Circuit has observed:

“... a workman’s superior cannot create or permit danger and send the workman into it with a warning and escape liability on a theory that the workman was contributorily negligent merely by going into the danger. The workman’s only other alternatives are to try to tell his superior how to run the job, or to quit.” Chaney v. Brupbacher, 242 So.2d 627, at 631 (La.App. 4th Cir. 1970.)

Based upon the evidence presented, viewed in a light most favorable to plaintiff, reasonable men could have concluded that he did not voluntarily and unnecessarily expose himself to the danger of contacting the electric line. The evidence could support a conclusion that plaintiff thought it was necessary to stand on the pipe in order to perform his assigned task. The distance from the location where he was injured to the valve he was working on (about three feet) is not so great as to require a finding that reasonable men could not conclude that his presence in that location was related to his assigned task.

In light of our finding that the trial court erred in granting the motion for directed verdict, we reverse that judgment as to all defendants but one. The granting of the directed verdict with respect to Fischer Engineering Co. is affirmed.

THIRD PARTY DEMANDS

The trial court dismissed the third party demands of Ciba-Geigy and White which sought contractual indemnity from Thibodeaux. After a thorough review of the record, we conclude that the trial court correctly decided that issue both legally and factually. His written reasons for judgment, which we adopt as our own, are set out in an appendix to this opinion.

For the foregoing reasons, the judgment of the trial court, granting the directed verdict on the main demand and dismissing plaintiff’s action, is reversed with respect to all defendants except Fischer Engineering Co. That portion of the judgment dismissing plaintiff’s demand against Fischer is affirmed. Furthermore, the trial court’s judgment, dismissing Ciba-Geigy’s and White’s third party demands for contractual indemnity, is affirmed. The case is remanded to the district court for further proceedings consistent with the reasons expressed herein. Costs of this appeal are assessed against defendants-appellees.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

APPENDIX

ANTONIO TIRANTE NUMBER 209,149 DIVISION D

19TH JUDICIAL DISTRICT COURT VS.

PARISH OF EAST BATON ROUGE

GULF STATES UTILITIES COMPANY, ET AL. STATE OF LOUISIANA

WRITTEN REASONS FOR JUDGMENT

For oral reasons previously assigned, which are by reference made a part of these reasons, the court granted directed verdicts of dismissal as to all defendants on the main demand after completion of the plaintiff’s case.

The third party demands of Ciba-Geigy Corporation (Ciba) and the White Budd Van Ness (Budd) partnership remain and must be resolved.

In its bid proposal for Phase 2 Construction (CG6), Robert Thibodeaux & Company offered to construct Ciba’s Development Building as per drawings and specifications in Bid 838 (CG3) for a base bid of $2,428,-700.00. Ciba recommended that said proposal be accepted (CG5). On July-20, 1976, Thibodeaux and Ciba executed Purchase Order No. CA 26782 (CG7) wherein Ciba’s acceptance of Thibodeaux’s offer was reduced to writing, and Thibodeaux bound itself to “CONSTRUCT DEVELOPMENT BLDG. AS SPECIFIED IN BID NO. 838.”

With that acceptance a contract arose (C.C. Art. 1803). Since a formal agreement as contemplated in the bid documents was never executed, the contract between the parties consisted of the offer and acceptance as indicated above.

The indemnity provision sought to be enforced in this third party claim is found within the documents provided in Bid 838 (CG3). Third party plaintiffs (Ciba and Budd) argue that the indemnification clause of Paragraph 4.18.1 of the General Conditions found in Bid 838 is binding and enforceable against Thibodeaux. This clause reads as follows:

4.18 INDEMNIFICATION
4.18.1 The contractor shall indemnify and hold harmless the Owner and the Architect and their agents and employees from and against all claims, damages, losses and expenses including attorneys’ fees arising out of or resulting from the performance of the Work, provided that any such claim, damage, loss or expense (1) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including the loss of use resulting therefrom, and (2) is caused in whole or in part by any negligent act or omission of the Contractor, any Subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder.

Another hold harmless clause appears in the Supplementary General Conditions added to the standard contract language by Ciba. It reads as follows:

16. GENERAL RESPONSIBILITIES OF THE CONTRACTOR:
* * * * * *
D. The Contractor shall save harmless the Owner and the Architect from all suits, actions or claims brought on account of any injuries or damage sustained by any person or property in consequence of any neglect in safeguarding the work by the Contractor, or on account of any claims or amount recovered for any infringement of patent, trademark or copyright, or from any claims or amounts arising or recovered under the “Workmen’s Compensation Law” or any other laws. He shall be responsible for all damage or injury to property of any character occurring during the prosecution of the work resulting from any act, omission, neglect or misconduct on his part or on the part of his employees, his subcontractors, and (sic) their employees, in the manner or method of executing the work; or from his failure to execute the work properly; or from defective work or materials. He shall not be released from such responsibility until all claims have been settled and suitable evidence to that effect furnished to the Architect.

Ciba and Budd argue that both provisions are binding on Thibodeaux; that Paragraph 16D supplements rather than replaces Paragraph 4.18.1; and that Paragraph 4.18.1 required Thibodeaux to indemnify their expenses in defending the main demand. It should be noted that Paragraph 16D does not require Thibodeaux to indemnify Ciba or Budd against claims caused by their own negligence.

Having found that a written contract arose with the execution of the Purchase Order, the issue is whether the indemnification clause in Paragraph 4.18.1 is a part of that contract. The court finds that Paragraph 16D of the supplemental conditions created an ambiguity in the contract. Supplementary General Conditions Paragraph IB states in pertinent part:

“In addition, the provisions of the AIA General Conditions are specifically amended as follows: * * *.”

Fifteen pages of amendments follow, some of which are specific additions to the General Conditions. Paragraph 16 is entitled, “General Responsibilities of the Contractor.” Paragraph 16D has been set forth above and clearly the contractor’s obligations therein are not as onerous as under Paragraph 4.18.1 because the requirement to indemnify for owner negligence language does not appear. Supplementary, as commonly defined, means additionally. Nothing additional is required of the contractor in Paragraph 16D. Instead, 16D reduces the contractor’s obligations and seems to replace in toto the corresponding provisions in the General Conditions.

Under Louisiana law, any ambiguity must be resolved against the drafter of a document. The application of that well settled rule here results in the conclusion that Ciba and Budd were unclear as to whether Paragraph 16D was to supplement and amend or replace Paragraph 4.18.1. Also, the general rule of law concerning indemnity agreements is that same will not be construed to indemnify the indemnitee against losses resulting to him through his own negligent acts where such intention is not expressed in unequivocal terms. See Arnold v. Stupp, 205 So.2d 797 (1st Cir. 1967) and Polozola v. Garlock, 343 So.2d 1000 (La.1977). The ambiguity resulting from the supplemental general conditions when applied to the General Conditions makes it apparent Thibodeaux did not express an unequivocal intention to be bound by Paragraph 4.18.1 when it executed the purchase order (CG7).

For the reasons cited above, judgment is rendered dismissing the third party demands and will be signed accordingly.

All costs of the main demand, including the expert witness fees for Dr. Lionel Smith, $200.00; Dr. Martin Bell, $275.00; Dr. Howard Kisner, $100.00; Dr. Leonard Adams, $150.00; and Dr. Jan Duggar, $150.00; are taxed to the plaintiff. All costs of the third party demand are taxed to Ciba and Budd.

      . Plaintiff did not oppose the motion for directed verdict made on behalf of Frank P. Fischer Engineering Co., Inc. On appeal, plaintiff assigned error to the granting of a directed ver-diet only with regard to Ciba-Geigy, GSU and White. Therefore, the granting of the directed verdict with respect to Fischer is not an issue in this appeal.

      . John Clark was deceased at the time of trial and was, therefore, unavailable to testify.

      . Tirante’s belief that the transite decking could not be walked on appears reasonable in light of the fact that a wooden walkway had been installed in certain areas of the cooling tower roof.

      . See footnote 1, supra.