Morgan v. Liberty Mut. Ins. Co., 7045

• Decision Date: 11 November 1975
• Docket Number: No. 7045,7045
• Citation: 323 So.2d 855
• Parties: Mrs. Mary Cavanaugh MORGAN et al. v. LIBERTY MUTUAL INSURANCE COMPANY et al.
• Court: Court of Appeal of Louisiana — District of US

Page 855

323 So.2d 855

Mrs. Mary Cavanaugh MORGAN et al. v. LIBERTY MUTUAL INSURANCE COMPANY et al.

No. 7045.

Court of Appeal of Louisiana, Fourth Circuit.

Nov. 11, 1975.

Concurring Opinion Nov. 14, 1975.

On Denial of Rehearing and Amendment of Decree Dec. 19, 1975.

Wiedemann & Fransen, Lawrence D. Wiedemann, New Orleans, for Mrs. Mary Cavanaugh Morgan, plaintiffs-appellees.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John V. Baus, New Orleans, and Timothy T. Roniger, for Liberty Mutual Ins. Co., and others, defendants-appellants.

Bienvenu, Foster, Ryan & O'Bannon, Hugh M. Glenn, Jr., New Orleans, for Peter Kiewit Sons' Co. and the Home Indemnity Co., intervenors-appellees.

Before REDMANN, STOULIG and GULOTTA, JJ.

STOULIG, Judge.

John Morgan, ¹ rendered paraplegic and mentally incompetent in an industrial accident, won a $2,481,000 jury verdict against defendants, Riley Stoker Corporation (Stoker), and its liability insurers, Liberty Mutual Insurance Company (Liberty Mutual) ($1 million limits) and American Home Assurance Company (American) (the excess carrier). Defendants ² have appealed.

We affirm on liability and amend quantum to $1,427,365.72.

On October 4, 1973, while working as a pipefitter foreman for Peter Kiewit Sons' Company (Kiewit) at a generator plant construction site at Kilona, Louisiana, John Morgan was critically injured when two corrugated metal sheets ³ fell from a height of 160 feet, caromed off the building, struck the ground and fell on Morgan.

It is not disputed this accident occurred through the negligence of employees of defendant Stoker, who, like Kiewit, was one of many subcontractors working on this job.

Originally, William Baldwin, Sr., foreman of the Stoker crew engaged in moving the metal, told Alfred Giavotelia, his 'rigger,' to move the sheets with the 'tugger.' ⁴ Giavotelia informed Baldwin that the tugger could not do the job safely and requested the use of a crane, ⁵ which was denied, and Giavotelia then refused to rig the sheets of metal because it was too dangerous. Baldwin had no experience as a rigger and despite this fact he took another equally inexperienced employee to the top level of the building to do this job. These two inexperienced Stoker employees tried to rig the sheets of metal with a sling attached to the cable of the tugger to lower them 120 feet for use at a 40-foot level. Encountering difficulty when they tried to lift the long corrugated sheets over the surrounding 4-foot railing because the bridle on the tie was too long to permit the tugger to raise the load over this barrier, they manually lifted and pushed the sheets over the railing. As the load dangled in the air, it became apparent it was improperly rigged; but before the mistake could be remedied, the sheets slid from the sling and fell to the ground below, striking Morgan, who was engaged in reading a blue-print near the base of the structure.

Defendants contend Morgan was guilty of contributory negligence in violating a basic safety rule known to all experienced construction workers, i.e. never stand beneath a load of material being moved. They argue Morgan with many years of experience in the construction field voluntarily exposed himself to an industrial hazard of which he is or should have been aware and that his negligence in doing so in a contributing proximate cause of the injury he sustained. In this connection they rely on this language in Romano v. Bonstaff: ⁶

'The primary factor to be considered in determining whether a person was negligent is that person's own experience in the field of work he was performing at the time he was injured. * * * ' 198 So.2d at 501.

While acknowledging that the issue of contributory negligence is a question of fact for the jury, nevertheless the defendants in their brief contend '* * * (1) undisputed facts established contributory negligence; (2) the jury's failure to return a verdict of contributory negligence was undoubtedly the result of the inadequate and erroneous charge on the subject by the trial court.'

We agree with defendants' definition of contributory negligence and their comment as to the proper evaluation of the plea, which we quote from their brief:

'Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, which is that of a reasonable man under like circumstances. Smolinski v. Taulli, 276 So.2d 286 (La.App. (La.) 1973). Contributory negligence is also measured by the same standards as primary negligence. Stewart v. Gibson Products Co., 300 So.2d 870 (La.App.1974). * * *'

But these general statements of law, when applied to the facts before us, do not alter the defendants' liability. If we inquire whether Morgan's conduct was 'that of a reasonable man under like circumstances,' we must answer in the affirmative. No need exists to discuss the sufficiency or correctness of the jury charge on this point of law, because there is insufficient evidence in the record to support the plea of contributory negligence.

When Morgan was injured, he was in an area where his duties required him to be. He and Charles Brouillette were checking a blueprint because of a discrepancy in specifications of the fabricated pipe which had been previously connected and attached to the system. Brouillette testified at no time before the accident did he hear the tugger or know it was being operated, otherwise, he emphasized, he would not have been standing there. He explained there is always background noise on a construction job of this magnitude and oftentimes it would not be possible to hear the tugger.

This observation is verified by the fact that a safety committee, on which all subcontractors were represented, established a rule that anyone operating machinery to move materials overhead should first warn all workmen in the area that loads would be lifted or lowered. The minutes of the safety committee meeting of May 15, 1973 (some five months before the accident), state in part:

'3) The following procedure shall be followed when cranes are working in an area where other activities are being conducted. The contractor operating the crane shall assign a man to warn all craftsmen in the area when a load is about to pass overhead. After being warned, it is the responsibility of those in the danger area to move to a safe spot until the load has passed. There will be no exceptions to this procedure and neither party can shift his portion of the responsibility to the other party.'

The safety committee obviously felt the noise of a crane lifting material overhead would not always be sufficient to warn workmen in the area, otherwise, there would have been no reason to adopt this rule. The Stoker crew should have been using a crane, the equipment this regulation was designed to affect. Instead they utilized the tugger, normally used for light loads. Considering the fact they were using inadequate equipment to lower the materials, it became more imperative for the Stoker crew to warn Morgan of its use.

Thus Morgan could reasonably assume the safety rule would be obeyed on the construction site and that he could safely stand near the boiler where his crew worked. Absent a warning to the contrary, Morgan should have reasonably been able to assume he was not endangered by objects being moved through the air. In addition, in view of the testimony of Brouillette, Morgan could not be expected to anticipate danger from the tugger because the basket, usually attached to it when in operation, rested on the ground several feet from him. This indicated the tugger was not being used. We therefore conclude Morgan was not negligent. Having failed to prove their affirmative defense of contributory negligence by a preponderance of the evidence, ⁷ defendants cannot exculpate themselves from liability.

We next consider quantum. The award exceeds what we consider adequate damages by more than $1,000,000; therefore, a modification is warranted under the Gaspard ⁸ line of jurisprudence interpreting the 'much discretion' rule of C.C. art. 1934. We would also reach the same result if we take an alternate approach and decide the case on the record under C.C.P. art. 2164, because plaintiff's counsel was permitted to unduly prejudice the jury by improper voir dire examination and/or inflammatory closing argument.

C.C.P. art. 1763 ⁹ permits voir dire examination of jurors to ascertain their qualifications to serve. In this regard it is valid for counsel to determine whether a juror can act impartially or whether he should be disqualified because of some prejudice toward the litigants or the issues involved in the trial. But in the guise of determining whether any prospective juror had a reservation about awarding high damages, plaintiff's counsel in voir dire examination Repeatedly suggested the amount of the verdict to be reached. Over objection by defense counsel, he was permitted to ask if jurors had any reservations about awarding $4 million. In addition, counsel exceeded the bounds set in C.C.P. art. 1763 by including in voir dire examination what should have been reserved for argument.

The quoted excerpts illustrate the prejudicial material permitted in the voir dire examination:

(Dealing with quantum . . .)

'Mr. Wiedemann:

Assuming, gentlemen, that all of the elements of damages sustained by Mr. Morgan justify an award of Four Million Dollars in this case, do any of you personally have any reservations about making an award of that consequence, assuming that is required to fully compensate Mr. Morgan for all of the effects of the accident?'

(And . . .)

'MR. WIEDEMANN:

Gentlemen, you all have heard me describe, and Mr. Baus also, the severity of the injury sustained by Mr. Morgan in this case and the disabling nature of the injuries. And assuming that those injuries and the consequence of those injuries would justify an award in the vicinity of Four Million Dollars,...