text:
    Sam GIOVINGO v. Jules and Myrtle COCHIARA, d/b/a Cochiara Shipyard, et al.
    No. 83-CA-732.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 9, 1984.
    Frank P. Tranchina, Jr., Law Offices of Guy W. Olano, Jr., Kenner, for plaintiff-appellant.
    Kevin L. Cole, Metairie, Al J. Mendoza, Mendoza & Hardin, Marrero, for defendants-appellees.
    Before CURRAULT, GRISBAUM and DUFRESNE, JJ.
   CURRAULT, Judge.

This appeal originates in the Twenty-Fourth Judicial District Court, Division “0”, wherein the Honorable Ronald P. Loumiet rendered judgment denying plaintiff recovery based upon a finding of contributory negligence and assumption of the risk. Plaintiff now brings this appeal.

On October 5, 1980, Sam Giovingo and Kathleen Murphy went on an afternoon fishing trip. Mr. Giovingo launched his skiff at a ramp site in Lafitte, Louisiana, owned by Jules and Myrtle Cochiara, d/b/a Cochiara Holding Company, but leased and operated- by Joe Silver, d/b/a Barataría Tavern Service. A fee of $2 was paid by Mr. Giovingo to use the launch which consisted of a steep, concrete ramp with small wooden piers on each side. The skiff was launched and the trip began without incident. However, at the time of the launching, Giovingo noticed a black substance adhering to the concrete ramp some 1 to 1½ feet above the water line and spanning the width of the ramp.

After completing their fishing, Giovingo and friend returned to the launch site at approximately 2:00 p.m. Both parties successfully disembarked and, while Ms. Murphy held the boat by a rope, Giovingo got his car and backed the boat trailer down the ramp and into the water. As he proceeded to load his skiff onto the trailer, Giovingo once again became aware of the black substance and tested its slipperiness by placing his right foot onto it and moving it. After testing, Giovingo took only a few steps to begin loading the skiff when he slipped and fell, striking his face against the trailer yoke.

Mr. Giovingo filed suit against Jules and Myrtle Cochiara and Joe Silver, alleging liability under LSA-C.C. Articles 2315, 2316 and 2317. A trial was conducted on February 11, 1983, and on June 9, 1983, judgment was rendered for defendants and against plaintiff. The judgment and written reasons are both silent as to which theory of liability was imposed; however, the trial court did find that plaintiff had assumed the risk and was contributorially negligent.

From that judgment plaintiff has appealed, asserting the following errors:

(1) the trial court erred in failing to apply strict liability unto the defendants for plaintiffs injuries; that

(2) the trial court erred in finding that plaintiffs actions constituted victim fault so as to bar the application of strict liability for these injuries; that

(3) the trial court erred in refusing to use a duty/risk analysis upon the defendants whose business operations included charging a fee for patrons to use the dangerous boat launch; and that

(4) the trial court erred in not addressing the issue of comparative negligence and applying the appropriate percentages in its reasons for judgment.

When activities or operations conducted on a premises present risks of damage to those on the property, then LSA-C.C. Article 2317 is applicable and renders the proprietor strictly liable (fault without negligence). The available defenses to a strict liability claim under Article 2317 are (1) victim fault; (2) fault of a third person; or (3) damage caused by an irresistible force. Buchanan v. Tangipahoa Parish Police Jury, 426 So.2d 720 (La.App. 1st Cir.1983). Victim fault is tantamount to assumption of the risk. Gordon v. City of New Orleans, 430 So.2d 234 (La.App. 4th Cir.1983). Assumption of the risk is a subjective determination involving first the victim’s knowledge and appreciation of the danger and, secondly, a voluntary encountering of it. Gordon, supra; Carpenter v. State Farm Fire and Casualty Company, 411 So.2d 1206 (La.App. 4th Cir.1982).

In written reasons, the trial court concludes:

“The testimony is that Mr. Giovingo and a friend launched a boat on the day in question. At the time of launching, Mr. Giovingo noticed a black substance at the water level of the boat ramp, presumably algae.
“After launching, he fished for approximately three or four hours, before returning at approximately 2:00 p.m. The weather was clear and fine. He became immediately aware again of the substance he had seen earlier, so much aware, in fact, that he presumed it might be something one might slip on and he decided to test it by placing his foot into it several times. This he did, by his testimony, because he was aware of a danger of slipping. He, after testing, walked through the black material at the water line and slipped, causing a serious injury to his face.”'

This account of the incident is an accurate one amply supported by the record.

At trial, only two witnesses testified: the plaintiff and his fishing companion. It was plaintiffs testimony that what he confronted was blackish vegetation growing on the ramp up to a foot and a half above the water line and covering the width of the ramp. Plaintiff further testified that he always goes under the presumption that he could slip and fall when retrieving the boat from the water. When questioned whether he appreciated the possibility of slipping and falling, his response was affirmative. He then testified he took the following precautions:

“I tried to pick a spot that didn’t have as much. There was a slime covering it and I put my foot on it and I had rubber sole shoes on and wedged my foot around to see if I could get any kind of a grip on it and it didn’t feel slippery at the time.”

A few questions later, he testified:

“I took my right foot and pressed it into the stuff and wedged it around a couple of times and it didn’t feel slippery and at that time I decided to go ahead with retrieving the boat.”

It is clear that this plaintiff had knowledge and appreciation of the danger he faced and that he voluntarily engaged in the activity which injured him. We cannot say that the trial court was manifestly erroneous in holding that plaintiff had assumed the risk of his own injury. Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978).

At this point, the issues of negligence do not merit discussion as we believe such issues have been made moot by the finding of assumption of the risk which operates as a complete bar to plaintiff’s action.

Accordingly, for the foregoing reasons, the decision of the trial court finding plaintiff had assumed the risk is hereby affirmed with costs assessed to appellant.

AFFIRMED.

      . LSA-C.C. art. 2317: We are responsible, not only for the damage 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.


source: Caselaw Access Project

author: CURRAULT, Judge.

license: Public Domain

text:
    Frank H. RUTHERFORD v. Bobbie J. JENKINS and State Farm Mutual Automobile Insurance Company.
    No. 83-CA-737.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 9, 1984.

      Max Zelden, Zelden & Zelden, New Orleans, for plaintiff-appellant.
    Burt K. Carnahan, Lobman & Carnahan, Metairie, for defendant-appellee.
    Before CURRAULT, GRISBAUM and DUFRESNE, JJ.
   CURRAULT, Judge.

This appeal brought by plaintiff, Frank H. Rutherford, arises from a jury award for personal injury damages rendered against defendant State Farm Mutual Automobile Association, plaintiffs uninsured motorist carrier.

On September 3, 1981, at approximately 4:00 p.m., plaintiff, Frank Rutherford, was proceeding west on the I — 10 westbound expressway in heavy traffic. The traffic was stopped or was moving slowly when plaintiffs vehicle, a 1974 Oldsmobile, was struck from the rear by defendant, Bobbie J. Jenkins. As a result, plaintiffs automobile was propelled into a post alongside the expressway. The vehicle driven by defendant, Jenkins, was uninsured.

As a result of physical and emotional injuries allegedly suffered in the accident, plaintiff filed suit on August 24, 1982, against Bobbie J. Jenkins and plaintiff’s uninsured motorist carrier, State Farm Mutual Automobile Association. A jury trial was held on March 15, 1983, at which time liability was not hotly contested, leaving damages as the main issue to be resolved by the jury. Following trial, the jury returned a verdict in favor of plaintiff in the amount of One Thousand Seven Hundred Fifty Dollars ($1750). Subsequently, plaintiff filed a motion for new trial or additur which was denied on April 18, 1983. Consequently, plaintiff perfected this appeal of the jury verdict.

Appellant specifies the following as error by the trial court:

that (1) the award of $1750 for both physical and emotional injuries, medical expenses and loss of earning was a clear abuse of the jury’s discretion; and that

(2) the jury’s failure to award special damages, including loss of earnings and medical expenses, constituted an abuse of discretion.

The guidelines followed by the appellate courts in reviewing damage awards was set out in Reck v. Stevens, 373 So.2d 498 (La.1979), where the court stated:

“Before a court of appeal can disturb an award made by a' trial court, the record must clearly reveal that the trier of fact abused its discretion in making its award.” At page 500.

The courts have repeatedly stated that no two cases are ever fully alike; therefore, to determine whether a jury verdict was an abuse of discretion the court must closely examine the particular facts and circumstances contained in the record. Coco v. Winston, 341 So.2d 332 (La.1976); Reck v. Stevens, supra.

Appellant urges that, given the facts herein, the jury award of general damages was so low as to be an abuse of discretion. Appellant also asserts that the evidence showed that he suffered special damages for medical expenses and loss of earnings which the jury erroneously failed to consider in its award.

The facts reveal that, as a result of the collision, appellant's car was struck from the rear, pushed into the neutral ground and came to rest after striking a post. As a result, appellant was thrown into the steering wheel. He claimed to have experienced immediate pain in his arm, forearm, shoulders and back. However, the police report failed to reflect any complaints at that time. Subsequently, appellant testified the pains got worse; thus he made an appointment with Dr. H.R. Soboloff, an orthopedist, on September 11, 1981. At that time the doctor found restriction of motion and loss of function in the neck and back, especially in rotation of the neck and back, as well as bending. He stated he further found muscle spasm in the lower back and neck with radiation into both sides of the buttock area. He diagnosed the injury, on a scale of mild to severe, as moderately severe in both the neck and back. He considered the lower back injury of major concern and prescribed a muscle relaxant, pain medication and heat. Subsequently, appellant was seen by Dr. Sobo-loff on September 25, October 9, October 27, November 23, December 7, December 21, and, finally, on January 18, 1982. Appellant was advised on the first visit to shorten his workday to four hours and to utilize the heat one hour, three times a day. On the second visit he was maintained on the treatment, but told he could work a little longer, however, to be careful of fatigue. In October, Dr. Soboloff added exercises to the treatment to strengthen and lengthen the back muscles which, as a normal course, shortened as a result of the spasms. On the second visit in October, he changed the medication and started appellant on a daily physical therapy program which lasted two weeks. In November, the patient improved and was told he could work full-time, but to stop when needed. In December appellant was continuing to improve, but the treatment was maintained with the exception of the physical therapy which was discontinued. Later in December, appellant had an acute onset of pain when he turned to pick up a briefcase. He stayed in bed one day, then gradually increased his activities. The doctor restricted his work hours for a few days to a week and treatment continued. In January, appellant still had some soreness in his back, some tightness in bending and in his hamstring muscles, but his neck was objectively normal. He was told to resume his work and recreational activities and no further treatment was rendered. Dr. Soboloff also testified that the injuries temporarily aggravated pre-existing spinal arthritis, the significance of which is that the injury would not heal as quickly as the same injury upon a person without the arthritic condition. Further, in November, the doctor was informed by appellant that he felt depressed. He was given a tranquilizer/muscle relaxant and advised to seek psychiatric counseling. At the time of trial, appellant noted he still occasionally suffered some pain and the doctor testified such residual discomfort was not unusual.

Appellant also produced a psychiatrist, Dr. Robert L. Newman, who testified that appellant suffered a classic case of secondary depression related to the accident. He was treated by Dr. Newman beginning in February, 1982. Dr. Newman recognized, as appellant also testified, that he was under numerous personal stresses prior to and after the accident, but Dr. Newman noted that those stresses became polarized around appellant’s problems with transportation as a result of the accident. For this reason, Dr. Newman believed the accident to be the cause of the depression. However, the evidence shows that appellant was paid Fourteen Hundred Dollars ($1400) by State Farm Mutual Automobile Association for his automobile two weeks following the accident and that, in December, he purchased a neighbor’s car for Twelve Hundred Dollars ($1200). Until that time, appellant rented the car he ultimately bought for Three Hundred Dollars ($300) a month. The arrangement was not fully satisfactory since he did not have full use and access to the car as he was sharing the automobile with his neighbor, but he did have transportation.

Finally, appellant produced evidence on loss of wages as a result of the alleged injuries by producing appellant’s W-2 Forms for 1981 and 1982. Those forms show a drastic reduction of income from Eighty-Four Thousand, Six Hundred Forty-Nine Dollars ($84,649) to Thirteen Thousand, Five Hundred Eighty-Seven Dollars and Forty Cents ($13,587.40) respectively. At the time of the accident, appellant worked for Accounting Personnel Consultants, a Troth, Inc. company. His job consisted of placing administrative personnel in employment vacancies, and his income was based solely on commission. He transferred to another section called Engineering Consultants, placing oil and gas personnel some time in early 1982. His tax return for 1982 showed an income of Ten Thousand Six Hundred Thirty-Seven Dollars and Fifty Cents ($10,637.50) from Accounting Personnel and Two Thousand, Nine Hundred Forty-Nine Dollars and Ninety Cents ($2,949.90) from Engineering Consultants. In September, 1982, he apparently left Troth, Inc. Dr. Newman testified that appellant’s complaints of inability to concentrate or perform job duties from the end of 1981 throughout 1982, herein alleged as a cause of his drop in income, were classic symptoms of depression. On the other hand, Mr. William R. Fagan, appellant’s employer at Troth, Inc., testified that the oil and gas business as a whole suffered an economic depression which severely affected the entire industry. He noted another employee whose income dropped Twenty-Two Thousand Dollars ($22,000) in 1982. Appellant did not provide any other calculations for lost wages.

Under these facts, it is our opinion that as to the issue of general damages, the award for appellant’s physical injury is so low as to be an abuse of discretion. The facts clearly show, and the jury apparently agreed, that appellant suffered compensa-ble damages physically caused by the accident. Yet One Thousand Seven Hundred Fifty Dollars ($1,750) for an injury which required four months of continuous treatment, medical bills of Five Hundred Eighteen Dollars ($518), with loss of work, pain and suffering, some residual effects, and a great deal of inconvenience along with some mental distress as a result, is well below the minimum for the injury sustained.

As to the psychological injury, the jury, in our opinion, did not consider the appellant’s mental condition to have been causally connected to the accident since they failed to award an amount sufficient to cover even the medical expenses in this regard. Our review does not indicate that the jury abused its discretion in so finding.

Finally, on the loss wage issue, we agree with appellant that it is not necessary to show the amount of loss to a mathematical certainty, but only by such proof that reasonably establishes the claim. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971). We think the proof herein does not reasonably establish the claim, or any amount for that matter, and an award under these facts would be speculative.

In conclusion, after a review of the law and the evidence, we affirm the jury verdict insofar as the liability of State Farm Mutual Automobile Association and insofar as the jury verdict failed to award damages related to plaintiff’s psychological condition and lost wages. However, in our opinion, the evidence necessitates an increase in the award for the general damages related to plaintiff’s neck, back and shoulder injuries and find the sum of Four Thousand, Five Hundred Dollars ($4,500) plus Five Hundred Eighteen Dollars ($518) medical expenses reasonable in this regard.

Accordingly, the jury verdict is hereby amended, affirmed and rendered, as amended, to reflect judgment in favor of plaintiff, Frank H. Rutherford, and against defendant, State Farm Mutual Automobile Insurance Company, for the sum of Four Thousand, Five Hundred Dollars ($4,500) plus Five Hundred Eighteen Dollars ($518) in medical expenses, together with interest at the legal rate from the date of judicial demand.

All costs are taxed against appellee, State Farm Mutual Automobile Insurance Company.

AMENDED, AFFIRMED AND RENDERED AS AMENDED.

      . Perniciaro v. Brinch, 384 So.2d 392 (La.1980).


author: DUFRESNE, Judge. BOWES, Judge,

text:
    Willie Bell McKINLEY v. BEKINS MOVING & STORAGE CO., INC., et al.
    No. 83-CA-627.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 9, 1984.
    Rehearing Denied May 17, 1984.
    Edmond R. Eberle, New Orleans, for plaintiffs-appellants.
    Garrity & Webb, Robert T. Garrity, Jr., Harahan, for defendant-appellee.
    Before BOWES, GRISBAUM and DU-FRESNE, JJ.
   DUFRESNE, Judge.

Appellants appeal from a jury verdict in the trial court awarding them $1,600.00 in damages ($800.00 per plaintiff, which included medical expenses), and finding one plaintiff, Joyce McKinley, 10% (comparatively) negligent in a rear-end collision involving injuries to both petitioners. We affirm the judgment.

On September 16, 1981, Joyce McKinley was the driver of a vehicle in which Willie Bell McKinley was a passenger. They were at the west traffic circle, approaching the Huey P. Long Bridge, on Louisiana Highway 18. The parties testified that the road was heavily congested with bumper-to-bumper traffic and stop-and-go driving for about one mile back as the vehicles on Highway 18 attempted to merge, at a yield sign, into the circle. Traffic within the circle was heavy and going very fast. As each preceding car merged into the circle, the next car would approach the yield sign, waiting for the opportunity to proceed. Plaintiffs vehicle was immediately in front of defendant’s. When the McKinley vehicle reached the sign, it either started briefly forward (a car length or one-half car length) and stopped, or had never begun to advance (defendant claimed the former, plaintiff the latter). In either case, defendant, Bowman, proceeded forward, looking to his left into the circle as he did so, to check oncoming traffic; he looked ahead just in time to see plaintiffs car at a full stop, apply his brakes, and collide into the rear of the McKinley auto.

With the above facts, the jury by special award found Bowman 90% negligent and McKinley 10% negligent (according to the jury interrogatories). The jury apparently found that McKinley’s conduct of starting forward and then suddenly stopping was a contributing factor and that she was partially at fault for this particular accident.

Generally, the following driver in a rear end. collision is considered to be at fault, except when the driver of the lead vehicle negligently creates a hazard which the following vehicle cannot reasonably avoid. See Vander v. New York Fire & Marine Underwriters, Inc. 192 So.2d 635 (La.App. 3rd Cir.1966).

Although we do not want to indicate that the lead driver in these circumstances at a yield sign will always, as a matter of law, necessarily be held to be at fault, under the specific circumstances of this case, we cannot say that the jury (the trier of facts) committed manifest error in its factual determination that Joyce McKinley’s actions were a contributing cause of the accident.

Likewise with regard to the monetary damages awarded by the jury, we find that $800 for each plaintiff was within the sound discretion of the trier of fact and not an abuse of discretion.

Both Joyce and Willie Bell McKinley suffered “soft tissue” injuries—cervical and lumbar strains. Both visited Dr. Marelle Yongue six times, and were given muscle relaxer medication. Physical therapy was not recommended or administered. By November 4th, the patients were symptom-free. Under the guidelines of Reck v. Stevens, 373 So.2d 498 (La.1979), the facts and circumstances peculiar to this case compel us to conclude that there was no clear abuse of discretion in the award of damages. Therefore, we cannot say that such was inadequate.

Accordingly, we affirm the finding of the trial court that Joyce McKinley was 10% negligent and likewise affirm the $1,600 damage award.

All costs to this appeal are cast to the appellants.

AFFIRMED.

BOWES, J., dissents with written reasons.

BOWES, Judge,

dissenting.

I disagree with the majority’s conclusion that a finding of 10% negligence on the part of plaintiff, Joyce McKinley, was not manifestly erroneous.

Under the facts as stated in the majority opinion, plaintiff was most certainly not negligent, in my opinion. Defendant (the following driver) was aware, not only of the extremely congested situation, but also of the difficulty in attempting to enter the fast-moving traffic in the circle, as he was very familiar with the intersection. Even if Mrs. McKinley had driven momentarily forward and then stopped, which is apparently what the jury believed, such was not negligence on her part. Many situations arise in the circle (or right-of-way lanes) which can cause a lead driver to be required to stop again — such as a car in a far lane being obscured by a car in a nearer lane, a ear changing lanes, an original erroneous judgment as to speed, etc.

The majority opinion effectively creates a rule of law that once a driver at a yield (or stop) sign decides to move forward, he makes an irrevocable decision which can never be changed, no matter what dangers may subsequently present themselves in the fast-moving traffic ahead. Such a rule places a premium on haste, impatience and hazardous driving, and increases the probability of an accident, injury, and danger to life, instead of emphasizing safety and careful driving.

The primary duty of the plaintiff was to merge safely into the oncoming traffic. Her actions were reasonable and not unusual in this situation, nor should they have been unexpected. The exception (to the rule which holds the following driver to be at fault in a rear end collision) is made when the driver of the lead vehicle negligently creates a hazard which the following vehicle cannot reasonably avoid. Vander v. New York Fire and Marine Underwriters, Inc. 192 So.2d 635 (La.App. 3rd Cir.1966); Walters v. Seven-Up Bottling Co. of Alexandria, 212 So.2d 443 (La.App. 3rd Cir.1968); Welch v. Thomas, 263 So.2d 427 (La.App. 1st Cir.1972); Self v. State Farm, 183 So.2d 68 (La.App. 3rd Cir.1966). See also: La.R.S. 32:81(A)

§ 81. Following vehicles
A. The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.

Under 32:81(A), the motorist is required to make an assessment of the conditions and circumstances and to maintain a distance behind the vehicle which is reasonable. Anderson v. Craig, 401 So.2d 1022 (La. App. 4th Cir.1981).

Such an exception is not applicable in the present case. It is certainly not unreasonable to expect the driver of the following vehicle to look ahead as he drives forward; even if he does glance away momentarily, his primary attention should be toward the direction in which he is driving.

In this case, the majority concedes that the defendant was looking to his left as he drove forward and struck defendant in the rear. If he had been looking forward all the time, he would be just as completely at fault as the cause of the accident because he should have been prepared to stop again. Under the doctrine of comparative negligence, the defendant should have been held completely liable and the plaintiff without any fault whatsoever, as she was only doing what she had to do to enter safely into the speeding and dangerous traffic within the circle. Certainly, she should not be held responsible for the actions of a following driver whom, by the majority’s own admission, was not even looking ahead or watching where he was going when he struck her in the rear.

It appears that my brothers in another circuit have already considered almost the exact question presented here and share the position that I have taken above. See Gleason v. Posey, 229 So.2d 219 (La.App. 2nd Cir.1969), wherein the Second Circuit opined:

... Mrs. Gleason was stopped at a stop sign about twelve feet from the intersection. At that point, she was unable to clearly ascertain whether she could enter Line Avenue, thus she rolled forward to a position of clearer visibility, and on braking for a second time her vehicle was struck from the rear by the Posey vehicle. Mrs. Gleason was clearly using the road in the usual manner by making absolutely certain that her entry onto Line Avenue could be executed safely. Her actions in rolling forward and braking a second time in order to attain a better view were certainly reasonable in light of the obstruction of view at this intersection. She was under no duty to maintain a lookout to the rear of her vehicle as she had a right to assume that any following vehicle was obeying the laws of the road in not following too closely, and in keeping his vehicle under proper control so as not to interfere with her use of the road in any manner.
The driver of the following vehicle in this instance should have been aware that the ingress of a vehicle from a non-favored street into Line Avenue, which is a heavily traveled four-lane thoroughfare, would be a very hazardous maneuver. He should, therefore, have maintained a very close lookout for a sudden or emergency stop by the preceding driver who is attempting to execute this hazardous maneuver. By failing to maintain a proper lookout and have" his vehicle under proper control, Posey was guilty of negligence which was the proximate cause of this accident.

Lastly, the majority attempts to limit their ruling to the particular facts of “these circumstances” and hold that not every driver in “these circumstances” is to be presumed to be partially negligent. In my view, these statements are incongruous and incompatible. The- “circumstances” here are perfectly clear, as defined by the majority, and with which I agree wholeheartedly. By their ruling, anyone else caught in these “circumstances” is required to make the same irrevocable decision that they have required of the plaintiff here. I disagree with all the strength at my command.

Additionally, I feel that the jury abused its discretion in its damage award of $800.00 per plaintiff, which included medical expenses of $200.00 for Willie Bell and $247.00 for Joyce. I would have increased the damages substantially, as the plaintiffs clearly suffered to a greater extent than is reflected in the jury verdict. Both were actively treated by Dr. Yongue for about seven weeks for both objective and subjective symptoms and then instructed to return in January. Both patients were prescribed medication for pain and muscle-relaxing, bed rest, heat therapy and special exercises. Joyce lost a week from work and Willie Bell lost four days.

For the foregoing reasons, I respectfully and vigorously dissent.


author: CULPEPPER, Judge Pro Tem.

text:
    Dennis J. LACOMBE, Plaintiff-Appellee, v. DUKE TRANSPORTATION, INC., Duke Equipment Company, Inc., and the Northwest Insurance Company, et al., Defendant-Appellants.
    No. 83-572.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.

      Arthur J. O’Keefe, Lafayette, for defendant-appellants.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Douglas C. Longman, Jr., and John P. Wilkes, III and Roy & Hattan, L. Lane Roy, Lafayette, for plaintiff-appellee.
    Before GUIDRY and FORET, JJ„ and CULPEPPER, J. pro tern.
   CULPEPPER, Judge Pro Tem.

Plaintiff, Dennis Lacombe, an oil rig worker for Cliff’s Drilling Company (Cliff’s), instituted suit against Duke Transportation, Inc. and Duke Equipment Company, Inc. (Duke), defendant, seeking damages for personal injuries allegedly caused by the negligent operation of a crane by defendant’s employee, Donald Guillory. Duke filed a third party demand against Hicks, alleging that the crane operator was a “borrowed employee” of Hicks who is vicariously liable. The trial court dismissed Duke’s third party demand on Hicks’ motion for summary judgment. Duke appeals, contending that there exists a genuine issue of material fact relative to the crane operator’s status as a “borrowed servant.” Finding that there are issues of material fact as to the crane operator’s status as a “borrowed employee,” we reverse and reinstate Duke’s third party demand.

FACTS

As shown by the pleadings, depositions and affidavits considered in deciding the motion for summary judgment, the facts are as follows. After completing drilling operations at rig # 30, Cliff’s contacted Hicks to secure two 60-ton cranes and operators to dismantle the rig. Hicks had only one crane available and contacted a competitor, Duke, to secure a second. Duke agreed to supply the crane and an operator at a rate of $100 per hour. This amount was paid by Cliff’s to Hicks, who in turn paid Duke, who paid its operator. Duke’s employee, Donald Guillory, was assigned to operate the crane. The crane and operator were sent directly from Duke to Cliff’s jobsite.

After the crane was assembled by Guillo-ry, he was instructed by Cliffs toolpushers and drillers to begin disassembling the rig. The Hicks’ crane was performing in the same manner. The Duke crane was used to hold up portions of the derrick A-frame, while Hicks’ crew removed each part of the rig. During this process, crane operator Guillory moved a spreader beam on the rig in such a manner that a leg of the rig dislodged and fell to the ground. Because of plaintiff’s position, he was forced to “ride” the dislodged leg to the ground, thereby injuring his leg.

Plaintiff brought suit against Duke and its insurer on the theory that, as employer, Duke is vicariously liable for harm resulting from an employee’s negligence. Duke subsequently brought a third party demand against Hicks alleging that the crane operator became Hicks’ “borrowed, special and/or joint employee” making Hicks vicariously liable for the crane operator’s negligence.

The trial court held that there existed no genuine issue of material fact as to the “borrowed employee” status of the crane operator and granted Hicks’ motion for summary judgment dismissing Duke’s third party demand.

In their briefs, counsel state that after the court granted Hicks’ motion for summary judgment dismissing Duke’s third party demand against Hicks, Duke settled with the plaintiff. The only remaining dispute in this suit is Duke’s third party demand against Hicks.

ISSUE

The sole issue is whether there exists a genuine issue of material fact as to Duke’s contention that the crane operator became Hicks’ “borrowed employee.”

SUMMARY JUDGMENT

Pursuant to LSA-C.C.P. art. 966, a motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. Any doubt must be resolved against the motion and in favor of a trial on the merits. LSA-C.C.P. art. 966; Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976).

The issue of whether or not an individual is a “borrowed employee” is a question of fact. The most commonly employed test utilized by the courts in making this factual determination is the “right of control” test. Additionally, the concept of the “borrowed employee” doctrine connotes an agreement of some type between the lender and borrower as to relinquishment of control of the employee to the borrower. In LeBlanc v. Roy Young, Inc., 308 So.2d 443 (La.App. 3rd Cir.1975), a case also involving a crane operator, we stated the rule as follows:

“[3,4] As pointed out by this court in Kezerle v. Hardware Mutual Casualty Co., 198 So.2d 119 (La.App. 3rd Cir.1967), writ refused 250 La. 918, 199 So.2d 921 (1967):

“In these cases the courts have consistently held that there is a presumption that the general employer is responsible in damages for the torts of his employee. If the general employer seeks to avoid liability on the ground that his employee is the ‘borrowed servant’ of another, then the burden of proof rests upon the general employer (...) to show that as to the particular work in question the servant has been loaned, that the relationship of master and servant which theretofore existed between the general employer and employee has been suspended, that a new relationship of master and servant has been created between the borrowing employer and that employee and that this new relationship was in existence at the time the accident occurred.
A test which has been applied consistently in determining whether a person is a borrowed servant is to ascertain who controls him in that employment, and who has the power and right to control. and direct him in the performance of his work. In order to establish that the employee is the borrowed servant of another, we think it is essential for the general employer to establish, among other necessary elements of proof, that the borrowing employer exercises control over the employee and has the right to control him, that the general employer has relinquished the right to control him, and that the employee is performing work for the borrowing employer and in the latter’s business.”

At the hearing on the motion for summary judgment, Duke introduced into the record one document, the affidavit of Douglas D. Wilson, general manager of Duke. Hicks introduced the affidavit of Ron Carriere, its general manager, and also six depositions, including those of the crane operator, Donald Guillory, Cliffs foreman and toolpushers, and roughnecks on the job. The district judge gave no written reasons, but he was apparently convinced by this evidence that either Duke, the general employer, retained control over Guillory, or that Cliffs had the right of control and actually exercised control, through its foreman and toolpusher, over Guillory, during the dismantling of the rig.

On appeal, Duke argues persuasively that the affidavit of its general manager, Doug Wilson, alone shows there is a genuine issue of material fact. Wilson states in his affidavit:

“During the time from December 4th-6th, Hicks Construction Company leased a Link Belt Crane from Duke Equipment Company. This crane was rented by Hicks Construction Company at an hourly rate of $100.00 per hour. An operator, Donald Guillory, was provided with the crane at no extra hourly charge.

The verbal lease -agreement between Hicks Construction and Duke contained no instructions, restrictions or qualifications as to the work which the crane would be performing. The crane was to be used in what ever manner and to perform what ever work Hicks, in its discretion, decided to do. The crane operator, Donald Guillo-ry, had, at the time of the leasing of the crane, “no other supervisor other than Hicks. Hicks could instruct Donald Guillo-ry when to come to work and when to leave; where to locate his crane, when to move it and when to stop it; what loads to lift, when to lift them and what manner and procedure to use in lifting them; what loads to lower, when to lower the loads and what manner or procedure to use in lowering the loads, and generally Hicks could give any other instructions or orders as to how to perform the work which Hicks instructed the crane and Donald Guillory to perform. The job of the crane operator was to follow the orders and instructions of Hicks and to use his knowledge and experience to operate the crane in order that the crane would make the lifts and perform the tasks which the Hicks representatives requested that the crane perform.

When Hicks no longer needed the crane, the crane was released. Hicks was billed for the use of the crane; the invoice has previously been produced at the request of the plaintiff and a copy of the invoice was marked for identification as Item # 8 and attached to the deposition of Doug Wilson dated October 14, 1982.”

The Wilson affidavit, quoted above, appears on its face to create a genuine issue of material fact. In its appellate brief, Hicks argues that Wilson’s affidavit should be given little weight because it is self-serving. Moreover, Hicks argues that the affidavit of its manager, Ron Carriere, and the depositions of Cliffs foreman and tool-pushers and roughnecks and the deposition of Guillot himself show that actually Hicks never did assume any control over Guillory. These documents do indeed appear to support Hicks’ argument that Cliff’s foreman and toolpushers instructed Guillory as to when to report to work, where to move his crane and what loads to pick up. Guillory’s deposition states generally that he followed instructions from Cliff’s foreman and tool-pushers as to the location of his crane and the loads to pick up, but he said that he retained the discretion to determine whether his crane was in the right position and whether he could lift the load, and furthermore he said that in the event of any trouble with the crane or with the job, he would have reported back to Duke for instructions. If the Carriere affidavit and the depositions were the only documents in evidence, the trial judge may have been correct in finding there was no genuine issue of material fact, and that Hicks had no right of control over the crane operator. However, we must also consider the affidavit of Wilson, Duke’s general manager, which on its face states that Duke relinquished complete control to Hicks.

Under the general rules applicable to summary judgment, as stated above, any doubt as to whether there is a genuine issue of material fact must be resolved against the mover and in favor of a trial on the merits. It is our opinion that in the present case the affidavit by Wilson creates such a doubt.

We hold that genuine issues of material fact exist as to the “borrowed employee” status of Donald Guillory. These disputed and material issues include, among others, the right of control by Hicks over the operator, and the existence of an agreement or lease between Hicks and Duke concerning the crane and operator.

Accordingly, the summary judgment in favor of Hicks is annulled and set aside. The matter is remanded for further proceedings; assessment of costs to await disposition on the merits.

REVERSED, SET ASIDE AND REMANDED.


author: GUIDRY, Judge.

text:
    CONCRETE POST-TENSIONING, INC., Plaintiff-Appellant, v. ARMCO, INC., et al., Defendants-Appellees.
    No. 83-584.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.

      Porteus R. Burke, New Iberia, for plaintiff-appellant.
    Sessions, Fishman, Rosenson, Boisfon-taine & Nathan, Louis L. Galvis and Stephen Doody, New Orleans, Kenneth W. Cole, Lafayette, for defendants-appellees.
    Before GUIDRY, FORET and CULPEP-PER, JJ.

       Judge William A. Culpepper, Retired, Judge Ad Hoc.

   GUIDRY, Judge.

On April 27,1982, Concrete Post-Tension-ing, Inc. (hereafter CPT) filed this suit asserting a claim for payment due and recognition of a laborer’s lien and privilege under the Louisiana Private Works Act against Big D Contractors, Inc. (hereafter Big D) and Armco, Inc., Building Systems Division, (hereafter Armco). Armco answered by general denial, alternatively asserting a written waiver and release as a bar to plaintiff’s claim against Armco and the enforcement of its lien and privilege. On the basis of this waiver and release, Armco filed a motion for summary judgment. After hearing, the trial judge granted the motion for summary judgment and dismissed Armco from the action. Plaintiff appeals.

The facts, as reflected by the record, are as follows. Armco was the general contractor on a construction project in New Iberia, Louisiana, known as the National Supply Company, New Iberia Center. As part of this project, Armco entered into a sub-contract with Big D to furnish all labor and materials to construct a foundation slab for a fabrication shop building which was to be erected. Big D thereafter entered into an oral agreement with CPT whereby CPT was to perform some of the construction work on this slab. Armco was not a party to this agreement. After completion of the work on the slab by Big D and CPT, Armco alleged that there were certain defects in the work which required correction. A dispute thereafter arose between Big D and CPT as to who was responsible for correcting the defects and the amount of money due by Big D to CPT for its services and materials. As a result of the dispute, Big D refused to pay CPT and CPT filed a lien against the aforesaid project. Thereafter, in accordance with the terms and conditions of the subcontract between Armco and Big D, Armco refused to make final payment to Big D until the dispute between Big D and CPT was settled and the lien was cancelled.

A series of meetings were then held in the offices of Armco, attended by L.J. Bish-off representing Armco; Dave Hall representing Big D; Leon Minvielle, III, counsel for Big D; and, Porteus R. Burke, counsel for CPT. On the basis of these negotiations, CPT and Big D entered into a written agreement. Under the terms of that agreement, the signatories, CPT and Big D, acknowledged their dispute and agreed to mutually waive and release any and all liens against the project in consideration of the payment by Armco of the sum of $35,-544.00 to Big D; payment by Big D of the sum of $26,071.00 to CPT; and, the deposit by Big D of the sum of $9,473.93 in a joint escrow account under the names of both appearers for corrective work. In the agreement, both appearers acknowledged and receipted for the payment by Armco. A copy of the agreement is annexed as Appendix I.

This agreement was executed on April 20, 1982 by CPT and Big D in return for which Big D delivered two checks to CPT’s attorney, one in the amount of $26,071.00, and one in the amount of $9,473.93, the latter amount to be placed in escrow as aforestated. Receipt of payment in these amounts was acknowledged by CPT in the written agreement. On the same day, a representative of Big D then delivered to Armco the written agreement and obtained from Armco a check in the amount of $70,-027.73, of which $35,544.00 was for the work on the slab. Big D negotiated Arm-co’s check and actually received the sum of $70,027.73. On April 22, 1982, Big D issued a stop payment order on the two checks issued and delivered to CPT. Big D has not since made payment to CPT of the sums due CPT under the agreement. As a result, CPT refused to cancel its lien and filed this lawsuit.

The issue on appeal is whether the trial judge erred in granting defendant’s motion for summary judgment. The trial judge granted the motion for summary judgment stating that there was no genuine issue of material fact and that Armco was entitled to judgment as a matter of law under the doctrine of equitable estoppel. We affirm.

In Industrial Sand and Abrasives, Inc. v. Louisville and Nashville Railroad Company, 427 So.2d 1152 at 1153 (La. 1983), the Supreme Court reiterated the following standards for reviewing a summary judgment:

“The sole purpose for the motion for summary judgment is to determine in advance of trial whether a genuine issue of material fact exists between the litigants. Miller v. East Ascension Tel. Co., 263 So.2d 360 (La.App. 1st Cir.), writs denied, 262 La. 1121, 266 So.2d 430 (1972); cf. Albatross Shipping Corp. v. Stewart, 326 F.2d 208 (5th Cir.1964); see also Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963); Comment, Development of Jurisprudence in Louisiana Relative to Summary Judgment Since 1960, 12 Loyola L.Rev. 128 (1965-66). The summary judgment procedure in Louisiana is set out, in La.C.C.P. art. 966 et seq. These provisions are based upon the Federal Rules of Civil Procedure and even though there has developed a substantial body of jurisprudence in the courts of this state regarding the motion for summary judgment, the prior jurisprudence of the federal courts pertaining to the proper use of this device remains helpful and persuasive. Roy & Roy v. Riddle, 187 So.2d 492 (La.App. 3rd Cir.), writs denied, 249 La. 724, 190 So.2d 236 (1966).
[1] La.C.C.P. art. 966 provides that any party may move for a summary judgment at any time, and the mover is entitled to summary judgment in his favor “if the pleadings, depositions, answers to interrogatories, and admissions of file, together with the affidavits, if any, show that there is no genuine issue as to a material fact, and that the mover is entitled to judgment as a matter of law.” Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980); cf. Fed. Rule Civ.Pro. 56. The burden is on the mover to show clearly that there is not a genuine issue of material fact in dispute, and any reasonable doubt as to the existence of a genuine issue of material fact must be resolved against the mover and in favor of trial on the merits. Thornhill v. Black, Sivalls & Bryson, 394 So.2d 1189 (La.1981); White v. Baker Manor Nursing Home, 400 So.2d 1168 (La.App. 1st Cir.), writs denied, 403 So.2d 68 (La.1982); cf. Erco Industries, Ltd. v. Seaboard Coast Line Railroad Co., 644 F.2d 424 (5th Cir.1981); Joplin v. Bias, 631 F.2d 1235 (5th Cir.1980).
[2] To satisfy this burden, the mover must meet a strict standard of showing that it is quite clear as to what is the truth and that there has been excluded any real doubt as to the existence of a genuine issue of material fact. The pleadings, affidavits, and documents of the mover must be scrutinized closely, while those of the opponent to the motion are to be indulgently treated. Vermilion Corp. v. Vaughn, 397 So.2d 490 (La.1981); Mashburn v. Collin, 355 So.2d 879 (La.1977); cf. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).”

Armco does not contend that CPT does not have a valid right under the Private Works Act to assert its lien or privilege against the project, rather Armco relies on the contractual release and waiver of such rights by CPT or equitable estoppel as a bar to recognition of CPT’s claim. Armco asserts the written agreement of April 20, 1982 as the basis for waiver, release or estoppel. The three theories by which defendant asserts that the written agreement serves as a matter of law as a bar to plaintiffs claims are as follows:

1. The written agreement between Big D and CPT constitutes a valid compromise and release agreement that is res judicata insofar as all claims brought against Armco and the project are concerned.

2. The written agreement between Big D and CPT contains a stipulation pour autrui in favor of Armco that cannot be revoked.

3. Under the doctrine of equitable es-toppel, CPT is barred by its own conduct from bringing this action to enforce the lien and privilege.

We conclude that Armco is entitled to judgment as a matter of law under the doctrine of equitable estoppel. It is therefore unnecessary for us to consider the other theories relied upon by Armco.

CPT’S CONDUCT AS A BAR TO ACTION ON BASIS OF EQUITABLE ESTOPPEL

In American Bank & Trust Company v. Trinity Universal Insurance Company, 251 La. 445, 205 So.2d 35 at 40 (La.1967), the Supreme Court set forth the following considerations for application of the doctrine of equitable estoppel:

“Equitable estoppel may be defined as the effect of the voluntary conduct of a party whereby he is precluded from asserting rights against another who has justifiably relied upon such conduct and changed his position so that he will suffer injury if the former is allowed to repudiate the conduct. Founded upon good faith, the doctrine is designed to prevent injustice by barring a party, under special circumstances, from taking a position contrary to his prior acts, admissions, representations, or silence.
Since estoppel bars the normal assertion of rights, courts apply the doctrine cautiously.
To raise an equitable estoppel, the record must establish not only that the pleader relied upon a representation or other conduct, but also that he was justified in so doing. Justifiable reliance is fundamental.” (citations omitted)

The trial court properly identified the three elements necessary to the plea of estoppel as: (1) the party sought to be estopped must be guilty of such conduct as was intended to lead the other party to act thereon; (2) the party seeking to invoke estoppel must show its good faith and diligence; and, (3) the party pleading estoppel must have been misled to its prejudice.

The conduct of CPT which was intended to lead Armco to act was the execution and delivery of a document to Armco stating that, upon payment by Armco to Big D, all liens against the project would be released. The record makes abundantly clear that the dispute over the slab work was solely a matter between Big D and CPT. Armco’s only interest in the dispute was its desire to have the lien against the project cancelled. To this end, Armco refused to make final payment to Big D until the dispute between Big D and CPT was resolved and the lien against the project cancelled.

The written agreement was drafted by the attorney representing CPT, and was executed by representatives of CPT and Big D. It was then delivered to Armco’s representative by Dave Hall, representing Big D. As aforestated, the agreement stated that each appearer (CPT and Big D) agreed to waive all liens against the project in consideration of payment by Armco of $35,544.00 to Big D. Upon receipt of the agreement, and in reliance on the waiver contained therein, Armco paid Big D as directed by the agreement.

The foregoing sequence of events, regarding which there are no factual disputes, clearly show that CPT drafted and executed the written agreement to induce Armco to pay the balance it owed to Big D, out of which funds CPT expected to receive payment from Big D in accordance with the terms of the contract. The record further shows that, without delivery of the written agreement and waiver, Armco would not have made the aforementioned payment to Big D. Thus, the first necessary element of the plea of estoppel is present.

The second necessary element, good faith and diligence on the part of the party invoking the doctrine, is likewise present. The record is completely devoid of any evidence of bad faith on the part of Armco, and appellant points to no act on the part of Armco which is remotely suggestive of bad faith.

The appellants strongly urge a lack of due diligence on the part of Armco. Specifically, they assert that, as reflected by the pleadings and documents on file, particularly, the affidavit of CPT filed in opposition to Armco’s motion, Armco actively participated in the discussions between the parties, and all parties understood that no lien rights would be waived by CPT until it received payment from Big D. Because payment was subsequently stopped on Big D’s check issued to CPT, appellant urges that Armco lacked due diligence by failing to take measures to insure that Big D actually made the payments to CPT.

Even affording indulgent treatment to CPT’s affidavits, etc., as we must, no lack of diligence is shown on the part of Armco. When Armco’s representative delivered payment to the representative of Big D, he relied on a written agreement between Big D and CPT wherein CPT acknowledged receipt of payment from Big D. These checks, totalling $35,544.00, had in fact been delivered by Big D to CPT in accordance with the agreement when such agreement was presented to Armco. Armco’s representative thereafter made payment to Big D, as directed by the agreement.

Appellant would have us require Armco to foresee that the checks issued by Big D would be dishonored, and thereafter insure that payment was made by Big D to CPT. To do so would be to require far more of Armco than due diligence in the protection of its rights. To the contrary, such a requirement would impose upon Armco a burden to protect the rights of CPT, who acknowledged in writing receipt of the payment from Big D.

The record makes clear that, if due diligence was lacking by a party to this suit, it was a lack of diligence on the part of CPT. The rights of CPT clearly could have been protected by establishing some mode of payment which would insure that CPT was in fact paid. However, rather than avail itself of any of a number of methods available to accomplish this purpose, CPT chose to acknowledge receipt of payment from Big D in exchange for two checks. The record clearly shows that the party in the superior position to prevent the breach by Big D was CPT, who itself devised the method of payment. CPT now would have us find a lack of due diligence on the part of Armco, which carefully protected its rights and paid Big D in precisely the manner directed by CPT. We find that Armco was in good faith and exercised due diligence.

The third element necessary to invoke the doctrine of equitable estoppel is also present. Armco has shown that it has been misled to its prejudice. In particular, the record shows that, in the preliminary negotiations between the three parties, Armco’s only objective was to pay Big D the balance owed under the contract, but only upon an agreement by Big D and CPT to waive all liens against the jobsite. Big D and CPT provided Armco with such an agreement waiving all liens. In reliance on the waiver, Armco paid according to the direction of the agreement. Despite the fact that Armco lived up to its end of the arrangement, CPT refused to comply with its waiver agreement and now seeks enforcement of its lien against the jobsite. The existence of the lien worked to the prejudice of Armco, which had bargained and paid for its waiver. Thus, the third element necessary to invoke the doctrine of equitable estoppel is also present.

The instant case is closely analogous to that of Baton Rouge Lumber Company v. Gurney, 173 So.2d 251 (La.App. 1st Cir. 1965). In that case, the defendant, Gurney, entered into a contract with a contractor, Clegg, for the performance of remodeling work on a home. Clegg purchased materials for the job from the plaintiff, Baton Rouge Lumber Company. After completing the work, Clegg obtained from Baton Rouge Lumber Company a statement of account for the Gurney job marked PAID. Gurney, relying on the receipted statement showing that all materials had been paid for, paid Clegg the balance due on the contract.

The check given by Clegg to Baton Rouge Lumber, in return for which the receipted statement was given, was subsequently returned by the bank on which it was drawn. Baton Rouge Lumber was unable to collect from Clegg, who was eventually adjudged a bankrupt. Thereafter, Baton Rouge Lumber filed a lien on the Gurney property, and filed suit seeking recognition of the lien and payment in full of the balance owed for materials used on the job. Gurney interposed a plea of estop-pel, which the trial court maintained, rejecting the demands of Baton Rouge Lumber.

On appeal, the court found that all three elements necessary to a plea of equitable estoppel were present. In particular, the court found: (1) that Gurney was misled to his prejudice by the action of Baton Rouge Lumber in receipting the statement of account; (2) that Gurney was in good faith and exercised due diligence. In this regard, the court found that the plaintiffs burden of proving due diligence did not require that he withhold payment to Clegg until the lien period elapsed; and, (3) that Baton Rouge Lumber’s action in receipting the statement of account was intended to lead Gurney to act thereon, or at the very least, it was reasonable for Baton Rouge Lumber to anticipate that Clegg would use the statement to prove to Gurney that all materials had been paid for, in order to compel Gurney to pay the balance due under the contract.

The court cited the following rule which has equal application to the instant case:

“It is well settled by the jurisprudence of this state that when one of two innocent persons must suffer by the act of a third person the loss must fall upon the one of them who has furnished the third person with the means of doing the injury. Henderson v. Louisville & N.R.R., 3 Orleans App. 43; Lawrence v. Sunrise Petroleum Co., La.App., 163 So. 742.”

As in Baton Rouge Lumber Company v. Gurney, supra, the plaintiff provided the means by which the third party, in our case Big D, was able to inflict the injury. CPT now seeks to recover from another innocent party who, unlike CPT, exercised due diligence in the protection of its rights. We find that the plea of equitable estoppel is well founded and that the loss, if any, as between Armco and CPT must be absorbed by CPT.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs are assessed to plaintiff-appellant.

AFFIRMED.

      . We have considered that under LSA-C.C.P. Art. 1005, the plea of estoppel is a special defense which must be set forth affirmatively in the answer which was not done in this case. Nonetheless we deem the answer amended to conform to the proof offered by the affidavits and depositions. Vermilion Corp. v. Vaughn, 397 So.2d 490 (La.1981).


author: CULPEPPER, Judge.

text:
    Lewis BABIN, et al., Plaintiffs-Appellants, v. TEXACO, INC., et al., Defendants-Appellees.
    No. 82-396.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.
    Rehearing Denied May 7, 1984.
    Haik, Haik & Minvielle, Theodore M. Haik, Jr., New Iberia, for plaintiffs-appellants.
    Voorhies & Labbe, Amos H. Davis, Lafayette, Caffery, Oubre & Dugas, Patrick T. Caffery, New Iberia, for defendants-appel-lees.
    Before CULPEPPER, DOUCET and YELVERTON, JJ.
   CULPEPPER, Judge.

This is a tort action instituted by Lewis Babin, et al., filed as a class action action Texaco, Inc. and Wilson Brothers Corporation alleging that they are joint tort-fea-sors. Plaintiffs are employees of the Diamond Crystal Salt Company. The Diamond Crystal Salt mine was flooded when an oil drilling rig, owned by and operated by the defendants, pierced the salt dome allowing the waters of Lake Peigneur to pour into the mine. This catastrophe resulted in the closing of the mine and the laying off of approximately 250 Diamond Crystal employees. As a result of losing their jobs, the miners lost their retirement benefits, future wages, life and health insurance, and other fringe benefits. Those miners in the mine at the time of the accident also allege that they suffered mental and emotional anguish which resulted in loss of salary.

Texaco filed and was granted an Exception of Lis Pendens as there are some similar suits pending in Federal Court. Hence, the claims against Texaco are not before this court.

The stay of proceedings in Federal Court did not affect defendant Wilson Brothers who is not a party to the federal action, inasmuch as they lack complete diversity with the miners. Wilson Brothers filed a Motion for Summary Judgment, which the district court granted, dismissing the claims of the miners for their loss of salary, loss of retirement benefits, and loss of fringe benefits. The Summary Judgment did not dismiss the claims of the miners for damages caused by physical injury, personal property losses, and/or mental anguish. The plaintiff-miners have appealed the Summary Judgment.

The only issue presented in this appeal is whether or not the plaintiff-miners have a cause of action against the defendant Wilson Brothers for loss of salary, loss of retirement benefits and loss of fringe benefits.

In Forcum-James Co., Inc. v. Duke Transportation Co., 231 La. 953, 93 So.2d 228 (1957), plaintiff had a contract with the state to build a new bridge and to maintain a temporary bridge during construction. Defendant’s overloaded truck negligently damaged the temporary bridge, which was owned by the state. Plaintiff sought damages on the theory that defendant’s tort had caused plaintiff to become contractually obligated to repair the bridge. The Louisiana Supreme Court applied the rule of Robin’s Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927) and stated:

“It is a basic principle of the law that a tortfeasor is responsible only for the direct and proximate result of his acts and that, where a third person suffers damage by reason of a contractual obligation to the injured party, such damage is too remote and indirect to become the subject of a direct action ex delicto, in the absence of subrogation .... ”
“Even the broad language used in Article 2315 of our Code does not justify a departure from the above stated doctrine. Indeed, to permit a person to proceed against a wrongdoer in every instance where such person has sustained damage by reason of his contractual obligation to the injured party would open the door to the prosecution of claims for damages indirectly and remotely connected with the tortious act and encourage a multiplicity of suits from which numerous conflicts of interest might ensue. Parties situated in plaintiff’s position can readily protect themselves by obtaining from the injured person a conventional subrogation of the latter’s rights and, thus, the tortfeasor can be made to respond for the direct and foreseeable consequences of his act in a single suit.”

This Court was recently asked to re-examine the Forcum-James doctrine in PPG Industries, Inc. v. Bean Dredging Corp., 419 So.2d 23 (La.App. 3rd Cir.1982) in which Texaco had a contract to furnish natural gas to PPG. Defendant’s dredging operations in the Calcasieu River negligently damaged Texaco’s pipeline, as a result of which Texaco was unable to fulfill its contract to supply gas to PPG, who had to obtain gas from another source at a higher cost. PPG sued the dredging company for the increased cost of the gas. We affirmed the district court judgment sustaining defendant’s exception of no cause of action and dismissed its suit, citing Forcum-James and Robin’s Dry Dock, supra.

Subsequent to our decision, the Supreme Court granted writs in PPG Industries, Inc. v. Bean Dredging Corp., 422 So.2d 151 (La.1982). Upon the request of appellant, we delayed deciding the present appeal pending the Supreme Court’s decision in PPG.

On February 27, 1984, the Supreme Court affirmed the decision of this Court in PPG Industries, Inc. v. Bean Dredging Corp., 447 So.2d 1058 (1984). The Supreme Court stated:

“For the policy reasons hereinafter stated in a duty-risk analysis, we hold that the damages to the economic interest of the contract purchaser of natural gas, caused by a dredging contractor’s negligent injury to property which prevents the pipeline owner’s performance of the contract to supply natural gas to the purchaser, do not fall within the scope of the protection intended by the law’s imposition of a duty on dredging contractors not to damage pipelines negligently.
“... imposition of responsibility on the tortfeasor for such damages could create liability ‘in an indeterminate class’. Ultramares Corp. v. Touche, 255 N.Y. 170, 179, 174 N.E. 441, 444 (1931). If any of PPG’s employees were laid off while PPG sought to obtain another source of fuel for its plant, they arguably sustained damages which in all likelihood would not have occurred but for defendant’s negligence .... Because the list of possible victims and the extent of economic damages might be expanded indefinitely, the court necessarily makes a policy decision on the limitation of recovery of damages. See James, Limitations on Liability for Economic Loss Caused by Negligence: A Pragmatic Approach, 25 Vand.L.Rev. 43 (1972). id.” (footnote omitted).

On its face the PPG opinion appears to control any claims by the miners for damages for loss of salary, loss of retirement benefits and loss of fringe benefits. These are all losses which the miners suffered by reason of the contractual obligations between the miners and their employer.

Following the Supreme Court decision in PPG, plaintiffs filed in this Court a supplemental brief attempting to distinguish PPG from the present matter. Plaintiffs state there are three separate and distinct groups of miners within the class of plaintiffs, each of which has a distinct cause of action as a result of the collapse of the salt mine:

1. Those miners who were employees at the time of the accident should have a cause of action for damages based upon negligent interference with contractual rights.

2. Those miners who were in the mine at the time of the accident should have a cause of action for the loss of wages due to the mental anguish they experienced as a result of the accident.

3.Those miners who witnessed, either directly or indirectly, the loss of their property should have a cause of action -for emotional distress suffered by reason of witnessing the destruction of their property and/or property rights.

We will address each of the three listed groups separately. The first group is those miners seeking damages based upon negligent interference with contractual rights. Plaintiffs argue that under the duty-risk analysis used by the Supreme Court in PPG, “a reasonable man should have known of the existence of the salt mine in operation (with men working in it) located directly under the oil drilling operation being conducted by the defendants, thereby creating an unreasonable risk of harm. The duty violated in this instant cause does encompass the particular risk of injury or harm sustained by the miners. This was not true in the PPG case. The foreseeability of harm and the directness of consequence is easily within the ambit of risk created by the defendants in the miners’ case.”

We find no merit in this argument by plaintiffs. As we read the Supreme Court decision in PPG, it is based purely on the policy consideration under a duty-risk analysis that the damages to the economic interest of the contract purchaser of natural gas did not fall within the scope of the protection intended by the laws’ imposition of a duty on dredging contractors not to damage pipelines negligently. This same rationale applies to the present case. In giving examples of the types of damages which would not be recoverable in PPG, the court listed those suffered “if any of PPG’s employees were laid off while PPG sought to obtain another source of fuel for its plant.” This example squarely covers group 1 listed by plaintiffs in their supplemental brief.

As to groups 2 and 3 listed in plaintiff’s supplemental brief, both urge a cause of action for damages for mental anguish or emotional distress. We have pointed out above that the summary judgment appealed in the present matter dismissed the claims of the miners only for their loss of salary, loss of retirement benefits and loss of fringe benefits. The summary judgment did not dismiss the claims of the miners for damages caused by physical injury, personal property loss, and/or mental anguish. Thus, the issue of whether groups 2 or 3 have a cause of action for damages for mental anguish or emotional distress is not before us.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiffs-appellants.

AFFIRMED.

       Judge William A. Culpepper, Retired, assigned Pro Tempore


author: DOMENGEAUX, Judge.

text:
    Bernice YOUNG, Individually, and on Behalf of her Minor Children, Mark William Young, Kevin William Young, and Tina Marie Young, Plaintiff-Appellant, v. HERCULES, INC., Defendant-Appellee.
    No. 83-554.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.
    Writ Denied June 1, 1984.

      Baggett, McCall & Ranier, Drew Ranier, Cameron, for plaintiff-appellant.
    Jones, Tete, Nolen, Hanchey, Swift & Spears, Gregory P. Massey, Lake Charles, for defendant-appellee.
    Before DOMENGEAUX, STOKER and DOUCET, JJ.
   DOMENGEAUX, Judge.

Plaintiff, Mrs. Bernice Young, wife of John W. Young, filed suit individually and on behalf of her three minor children on April 18, 1980, against Hercules, Inc., claiming entitlement to workers’ compensation benefits for the period commencing with the death of her husband on November 16, 1979. On October 25, 1978, John Young had suffered a compound fracture of his left leg while working for his employer, Hercules, Inc. More than one year later, Mr. Young suffered an acute myocardial infarction and died.

Mrs. Young alleged that the heart attack was caused or precipitated by the accident which had occurred thirteen months earlier. Hercules, Inc. denied any liability.

The matter was tried and taken under advisement. In written reasons for judgment, the trial judge held that the plaintiff had not sustained the burden of proving that the heart attack resulted from the on-the-job accident thirteen months before. Plaintiff has devolutively appealed.

ISSUE

Appellant contends that the trial court erred in holding that the chronic and cumulative stress of the decedent’s injury and the heart attack which occurred during the recuperative period were not compensa-ble under Louisiana’s Worker’s Compensation Laws.

FACTS

On October 25, 1978, John Young sustained a compound fracture of his left tibia. He was admitted to St. Patrick’s Hospital in Lake Charles, Louisiana, for surgery. The surgery involved an open reduction of the bone using plate fixation. After surgery and discharge, Mr. Young walked with the aid of crutches. The initial plating held the bone in place but the bone itself did not heal. Mr. Young’s treating physician, orthopedist Edward Phillips, M.D., observed that after a six month period the bone had failed to heal properly. On May 8, 1979, Doctor Phillips surgically implanted electrodes to facilitate healing. Mr. Young continued to use crutches.

After the second surgery, Doctor Phillips found that the fracture had healed properly. X-rays taken on September 18, 1979, confirmed that the fracture had healed. However, the wound remained open and draining and was not healing; Doctor Phillips determined that the plate and the screws which had been inserted to repair the fracture were probably causing the wound drainage. On October 12, 1979, Mr. Young underwent a third operation for removal of the plate and screws. He remained in the hospital until October 15, 1979. His discharge from the hospital was followed by weekly visits to Doctor Phillips’ office. On November 16, 1979, Mr. Young suffered a heart attack and died on arrival at the hospital.

The pathologist who performed the autopsy, Dr. Lehrue Stevens, determined the cause of death to be acute myocardial infarction due to or as the result of arteriosclerosis. Doctor Stevens determined that the coronary atherosclerotic condition (a stage of arteriosclerosis) was of long standing; the effects included a reduction of the oxygen supply to the heart by restricting the blood vessels, and a greater tendency of the blood to clot. The pathologist found that a thrombus, i.e., a blood clot had formed in a coronary artery which cut off all oxygen to a portion of the heart, producing an infarction and resultant death.

Plaintiff had several expert medical witnesses review the medical records of the decedent and the depositions of other medical experts in order to substantiate the claim that the stress involved, i.e., the failure of the injury to heal, the series of surgical operations, and the difficulty in walking, were factors which contributed to the underlying arteriosclerotic condition and precipitated the fatal myocardial infarction.

Shea Halle, M.D., a chest physician and specialist in internal medicine, concluded that the progress of Mr. Young’s coronary heart disease was hastened and aggravated by the stress associated with the 1978 accident, and the surgery and treatment in the year following. Doctor Halle stated that stress (both acute and chronic) significantly contributed to Mr. Young’s death, along with thirty years of cigarette smoking and the possibility of hypertension. In his opinion, the initial surgery damaged Mr. Young’s heart, as indicated by the contemporaneous hospital records and the autopsy results. However, Doctor Halle also admitted that Mr. Young would eventually have died from heart failure or vascular disease absent the stress factor.

During Mr. Young’s first hospitalization following the accident (some thirteen months before he died), he complained of severe pain in the chest and abdominal area. Charles Woodard, M.D., a cardiologist, conducted a complete physical and cardiac examination of Mr. Young and determined that he was suffering from an ileus (a paralysis of the bowel frequently occurring after anesthesia and surgery). Doctor Woodard found that there was no symptomatic evidence of heart disease in the patient, and both his EKG results and the blood pressure readings were in the normal range. After this diagnosis Mr. Young was treated for several days and the pain resolved.

Doctor Woodard did state however that it was possible that stress played a minor role in precipitating the decedent’s subsequent heart attack thirteen months later; but that in this particular patient there were more important major risk factors which contributed to his myocardial infarction.

John Phillips, Jr., M.D., a cardiologist and professor of medicine at Tulane University School of Medicine considered stress to be a major risk factor in both causing coronary artery diseases and aggravating pre-existing arteriosclerosis. Doctor Phillips, whose subspeciality is cardiovascular diseases, stated that the traumatic injury, the surgeries, the failure of healing, and the anxiety were all stress factors which caused Mr. Young’s heart attack.

Jorge Martinez-Lopez, M.D., a cardiologist and professor of medicine at LSU Medical School, testified that trauma was not a factor in causing the heart attack. Doctor Martinez-Lopez, a specialist in car-dio-vascular diseases, concluded that the accident in October, 1978, and the fatal myocardial infarction in November, 1979, were two separate medical incidents. He further stated that the accident had no relationship to the heart attack.

John Buttross, J.D., another cardiologist, corroborated the conclusion reached by Doctor Martinez-Lopez. He testified that stress did not play any causative role in the myocardial infarction.

In reviewing the testimony the trial court found that Mr. Young was not under any undue or extraordinary stress at the time of his death. Both Mrs. Young and Doctor Phillips (Mr. Young’s treating physician) testified that Mr. Young remained optimistic about his leg and the healing process.

The trial court found that the plaintiff failed to establish by a preponderance of the evidence that there was a causal connection between the heart attack on November 16, 1979, and the accident of October 25, 1978. The suit was dismissed at plaintiff’s costs; the fee of each doctor were fixed at $150.00 and taxed as costs.

CAUSATION, HEART DISEASE, AND WORKER’S COMPENSATION

The doctrine of causation has been applied to determine entitlement to compensation. The employee’s disability is presumed to have been caused by the accident. Haughton v. Fireman’s Fund American Insurance Co., 355 So.2d 927 (La.1978).

“There is no presumption, however, that a vascular accident occurring on the job is caused by the employment. There must be a causal link between the employment, or the work, and the accident. And of course, the law imposes upon the plaintiff in compensation cases, as it does in other civil cases, the burden of proving that causal link by a preponderance of the evidence. Prim v. City of Shreveport, 297 So.2d 421 (La.1974).
This burden of plaintiff’s is to show by a preponderance of the evidence that the work effort, stress or strain in reasonable probability contributed in some degree to the heart accident. Anything less and it can hardly be said that the accident arose out of the employment or that the employment in any measure contributed to the accident.
If the physical exertion, stress, or strain on the job, and preceding the infarction, is no more than the worker would likely have experienced in a non-work situation, the attack may be the result of the natural progression of the pre-existing disease rather than the result of the employment activity.”

Guidry v. Sline Industrial Painters, Inc., 418 So.2d 626 (La.1982). The case sub ju-dice requires consideration of the causal connection not between the accident and the injury but rather between the job accident, the ensuing injury, and decedent’s fatal heart attack.

Under Louisiana Worker’s Compensation Law the accident need not either cause or aggravate the disease which is the cause of the disability, nor adversely change a particular organ of the body. Guillory v. U.S.F. & G. Ins. Co., 420 So.2d 119 (La.1982). The Louisiana Supreme Court has explained the legal requirements which must be established:

“The legal criterion in compensation cases involving heart disease should be whether the accident caused a change in the employee’s physical condition which is disabling, and not whether the accident changed the diseased organ of the employee. The residual condition from an accidental injury which substantially increases the possibility of recurrence of a disabling or death-dealing episode is legally disabling and is compensable under our Workmen’s Compensation law. Bertrand, supra [221 So.2d] at 828, quoted in Guillory [v. U.S.F. & G. Ins. Co.] 401 So.2d [543] at 550 [La.App.1981]. (Domengeaux, J. dissenting) (Emphasis supplied).”
Guillory, at 123.

In the instant case, the trial judge found that, based upon all the medical evidence presented, that Mr. Young’s fatal heart attack was not compensable under La.R.S. 23:1021 et seq. because the plaintiff failed to establish causal connection between the accident and the disability, i.e., the stress of the accident (a residual condition) did not produce a change or substantially increase the possibility of the deceased’s fatal episode. Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 (1968). The trial judge found that the expert medical testimony did not establish a reasonable possibility of such a connection. Adams v. New Orleans Public Service, Inc., 418 So.2d 485 (La.1982), on rehearing, 418 So.2d 490, citing Allor v. Belden Corporation, 393 So.2d 1233 (La.1981). The court did reach the ultimate determination that Hercules rebutted the presumption and came forward with sufficient contrary evidence to prove that Mr. Young’s heart attack was not work-stress related, but rather it was the result of progressive coronary artery disease.

The findings of the trial judge are entitled to great weight, and will not be disturbed except upon a showing of manifest error. Deville v. Port Pipe Terminal of Louisiana, Inc., 419 So.2d 16 (La.App. 3rd Cir.1982), writ denied, 422 So.2d 424 (La.1982). The trial judge had the opportunity to view and evaluate the conclusions of the medical specialists and make a factual finding that the evidence offered was inadequate in order to sustain the plaintiff’s burden of proving causation or change.

We have engaged in a thorough review of the record in this case, and the applicable statutes and jurisprudence. We find no manifest error in the trial judge’s careful consideration of the conflicting medical testimony; he analyzed all the expert evidence adduced at trial and concluded that plaintiff failed to establish with any reasonable certainty a causal connection between the accident and the heart attack. We cannot say that the trial judge abused his discretion in dismissing plaintiffs claim.

DECREE

For the above and foregoing reasons the judgment of the trial court is affirmed, with appellate costs assessed against the appellant.

AFFIRMED.