27,358 La.App. 2 Cir. 9/29/95, Carter v. Exide Corp.
| Decision Date | 29 September 1995 |
| Citation | 661 So.2d 698 |
| Parties | 27,358 La.App. 2 Cir |
| Court | Court of Appeal of Louisiana — District of US |
Graves, Graves & Hanna by Robert M. Hanna, Shreveport, for Appellants.
Bordelon, Hamlin & Theriot by William J. Hamlin and William C. Ellison, New Orleans, for Appellees, Bridgestone/Firestone.
Rountree, Cox, Guin & Achee by Billy J. Guin, Jr., Shreveport, for Appellees, Allstate Insurance Co. and Seborn Samuels.
Before MARVIN, SEXTON and BROWN, JJ.
the mechanic, Carter, appeals the trial court's dismissal of the action against Samuels by granting his motion for summary judgment and against Firestone by sustaining its exception of no cause of action based on its worker's compensation statutory immunity in tort under LRS 23:1032.
The summary judgment was rendered before Celestine v. Union Oil Co., 94-1868 (La. 4/10/95), 652 So.2d 1299, which squarely held that an owner of a defective thing that poses an unreasonable risk of harm to a repairman of the thing may be strictly liable under some circumstances to the repairman for injury caused by the defective thing. The inquiry into whether a risk is unreasonable is "context specific" or "fact intensive," Entrevia v. Hood, 427 So.2d 1146 (La.1983). See Celestine, supra, No. 94-1868, at pp. 2, 7-9; 652 So.2d at 1300, 1303-04. Moreover, Carter has effectively asserted that Samuels was actively participating in the test of the battery and negligently contributed to the cause of the explosion.
The judgment in favor of Firestone on the exception of no cause of action was based on the immunity in tort statutorily given employers for a work-related injury sustained by an employee. Here, however, the record suggests that after the battery exploded, one or more of Carter's superior employees at Firestone told or promised him that the remains of the battery would be preserved for his inspection and that Firestone failed to preserve the battery remains. The asserted negligence of the employer is not founded on any conduct that caused Carter's work-related injury from the explosion, but on the employer's breach of the post-explosion "promise" to preserve the remains of the battery.
On this record, we conclude that Carter's factual allegations against his employer may be amended to state a cause of action against Firestone. CCP Art. 934. We also conclude that Carter's factual allegations against Samuels are sufficient to state a cause of action under the CC Art. 2317 strict liability and to allow evidence of Samuels' alleged negligence because of his asserted participation in the testing of the battery.
Discussing these issues and more specifically stating the peculiar facts apparent at this juncture from the affidavits and depositions offered on the motion for summary judgment, we amend to reverse in part and remand on all issues except the sustaining of the no cause of action exception upholding the employer's statutory immunity in tort for the work-related injury to Carter caused by the explosion. We allow Carter to amend his petition to more fully allege his tort claim against Firestone arising from its asserted post-explosion promise to preserve the remains of the battery for him. We reverse the summary judgment and allow Carter to proceed against Samuels under CC Arts. 2315 and 2317.
Samuels' affidavit and deposition, and the depositions of Carter and of Firestone's assistant store manager, Simmons, hereafter summarized, support our above stated conclusions.
Samuels bought a used 1976 Ford pickup from a third person in the mid-1980's. In the summer of 1989, after being unable to "crank" or start the truck's engine, Samuels bought a new battery from the Firestone service center on Fairfield Avenue in Shreveport. This battery apparently carried a 50-month, or four year, warranty. Carter was not employed at the service center in 1989.
About a year later, in early August 1990, Samuels again experienced problems starting the engine. He brought the truck back to the Firestone store, where the one-year-old battery was replaced with another new Exide 50-month battery, again by a Firestone employee other than Carter.
About two months later, Samuels again began having trouble starting the truck's engine. He checked the water level in the battery by removing the plastic caps or plates on the top of the battery. After noting that the water level was "low but not too low," Samuels brought the truck back to the Firestone store. Samuels said he told "the service department" that the truck "was hesitating to crank" and that "water was boiling out of the battery and ... the water in the battery was low." An unidentified employee at the front desk prepared a service ticket directing a "battery and electrical check" on the truck.
Carter, an experienced mechanic, ran a "battery load" test on the truck's electrical system by use of a diagnostic machine that measures the respective electrical charge of the battery, the "draw" of the starter, and the output of the alternator. Carter said he repeated the test about a dozen times, suspecting that the battery might have an "internal short," a problem that shows up only rarely, or not at all, during the diagnostic test. Each time the system was tested, all readings were within normal limits except for the alternator output, which was about one volt higher than the maximum recommended level.
Carter wrote on Samuels' service ticket, "overcharging, 1.2 volts, boiling water out of battery." Samuels agreed to Carter's recommendation that the truck's voltage regulator be replaced. Samuels waited at the Firestone center while the regulator was replaced by an employee other than Carter.
After the voltage regulator was replaced, Carter again ran the diagnostic test on the truck's electrical system. All readings were within normal limits. Carter then removed one of the two caps or plates from the top of the battery without incident, and saw that the water level on that side of the battery was adequate. The explosion occurred as Carter tried to remove the second cap or plate from the battery to check the water level on the other side.
Samuels, who said he was standing a few feet off to the side of the truck when the explosion occurred, testified that the truck's engine was running while Carter was checking the water level in the battery. Samuels said he turned the engine off after the explosion.
According to Carter, the engine must be running to make the diagnostic test of the electrical system but should not be running during the water level check because "you could have sulphuric gas in there and a spark can cause one [the battery] to go [explode]." Our brackets. Carter said he told someone sitting in or standing near the truck, whom he believed to be Samuels, to turn "the vehicle" or "the ignition" off before he took any steps to check the battery water level. Carter said he was "sure" the engine had stopped running before he began the water level check.
Carter testified that a co-worker, Lee Johnson, who witnessed the explosion, later told him that the key to the truck was found turned to an intermediate "on" or "accessory" position immediately after the accident. Carter admitted he did not look at the key position inside the vehicle while he was working on it, but said he was sure the engine was not running when he began checking the battery water level. The conflict in the testimony in this area should be resolved at a trial on the merits.
The assistant store manager, Simmons, had "some background as a mechanic years ago," but was not tendered or deposed as an expert witness. Simmons testified that when a voltage regulator "goes bad," it may overcharge and "burn up" the battery, or "cook it inside."
Q. When that happens is the battery more likely to explode?
A. There's a possibility.
Q. And anybody working on batteries and voltage regulators would know that, wouldn't they?
A. Yes.
Q. Okay. So you would want to be somewhat careful when you are working on a battery like that.
A. Definite[ly]....
Q. After the voltage regulator is replaced, how long will it take for the battery not to be at a risk of explosion?
A. I couldn't answer that question.
Q. Does it remain that way permanently, or will it eventually go back to normal?
A. On an overcharged battery we have had them overcharge, and didn't have to replace them[.]
Q. Okay. Does it vary per battery?
A. It varies.
Carter admittedly knew that the voltage regulator in Samuels' truck was overcharging the battery by one volt, which Carter said was "nothing to speak of." Carter also knew that an overcharged battery will lose water through evaporation, and that it is "possibly" more likely to explode than a normally charged battery,
because you build up sulphuric gas ... [which has] a rotten egg sulphur smell when you have got it.... This [battery] didn't have [any] ... smell ... that day.
In more than 20 years of working as a mechanic, Carter had seen only two batteries explode: one that was "hooked up in a 24-volt series" and one that was being charged with the jumper cables attached incorrectly to the battery posts. He knew, before the accident, that these things can cause a battery to explode:
A spark like if you are hooking up cables [to charge] one, you let it spark or if you are jumping and hooking up jumper cables and there is a...
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