Roundtree v. Technical Welding and Fabrication Co., Inc.

• Decision Date: 08 November 1978
• Docket Number: No. 9491,9491
• Citation: 364 So.2d 1325
• Parties: Patricia Ann ROUNDTREE, widow of Elmo C. Burmaster, Jr. v. TECHNICAL WELDING AND FABRICATION COMPANY, INC. and Ed Ehrmann and Hunt-WessonFoods, Inc.
• Court: Court of Appeal of Louisiana — District of US

Page 1325

364 So.2d 1325

Patricia Ann ROUNDTREE, widow of Elmo C. Burmaster, Jr. v. TECHNICAL WELDING AND FABRICATION COMPANY, INC. and Ed

Ehrmann and Hunt-WessonFoods, Inc.

No. 9491.

Court of Appeal of Louisiana, Fourth Circuit.

Nov. 8, 1978.

Rehearing Denied Dec. 15, 1978.

A. Remy Fransen, Jr., Robert J. Neal, New Orleans, for plaintiff-appellee.

Leach, Paysse & Baldwin, Michael A. Britt, New Orleans, for intervenor-appellee.

James J. Morse, Jr., New Orleans, for defendants-appellants.

Before SAMUEL, GULOTTA and BEER, JJ.

GULOTTA, Judge.

In this wrongful death action, defendants appeal from a $668,157.32 trial judge award in favor of a childless surviving spouse of a thirty year old workman who died from injuries sustained on July 27, 1974, in a thirty foot fall from an oil storage tank. Plaintiff has not answered the appeal.

Plaintiff's claim against decedent's employer, Technical Welding and Fabrication Company, Inc., and its chief executive officer, Ed Ehrmann, is based on the failure to provide a safe place to work, proper supervision and proper safety devices. Judgment was rendered against the employer's liability insurer ¹ and the executive officer. ²

On appeal, defendants contend plaintiff's recovery is barred by decedent's contributory negligence and/or assumption of risk.

Alternatively, defendants claim the award is excessive. We amend and affirm.

LIABILITY

Decedent, Elmo C. Burmaster, Jr., was a member of a crew demolishing a metal oil storage tank approximately thirty feet in height and seventy-eight feet in diameter. The tank was constructed of 3/16 sheet steel plates measuring four to five feet in width and either ten or twenty feet in length which were riveted onto a "super-structure", a framework of beams. See photographs (Appendices I and II). These supportive beams in the roof area radiate from the center of the tank in a spoke-like fashion. All of the roof plates were supported by pieces of superstructure with the exception of two "critical" plates which were not firmly supported.

Burmaster was usually employed as a "ground man" who smoothed the jagged edges of the plate after they had been lowered to the ground. On the day of the accident, however, he was working on the roof and cutting plates with a fellow worker. As he walked toward his co-worker, Burmaster stepped on one of the "critical" sheets which gave way causing him to fall through the roof to the bottom of the tank, thirty feet below.

In support of their contention that decedent was contributorily negligent or assumed the risk, defendants point out that though unsafe conditions existed on the job site, Burmaster knew that certain parts of the roof were unsafe and chose to work under these conditions; and that his failure to work cautiously constitutes contributory negligence which was the proximate cause of his fall. We reject these contentions.

It is undisputed that no safety nets or belts were used on the job in accordance with federal safety requirements. ³ Though Ehrmann testified, in deposition, that he had warned Burmaster at lunch on the day of the accident that the critical sheet was "coming up", Michael Darbonne, decedent's co-worker on the roof, testified that Ehrmann had not given him (Darbonne) any warning that the two plates were not supported. He indicated further that "nobody knew" of the unsupported plates. Assuming that Ehrmann did give oral warning of the critical plates, it is undisputed that they were not identified or marked in any manner to distinguish them from the other plates on the roof.

E. J. Scardino, Jr., a Safety Engineer, testified that giving a warning without marking the hazardous plate was "ludicrous". Scardino stated there was no evidence of any type of a good safety program and the accident could have been prevented by clearly identifying the hazard, removing it, or putting bracing underneath it.

The evidence on liability is somewhat meager. Although no written reasons relating to liability were assigned, it is clear the trial judge believed the executive officer did not warn the decedent or his co-worker of the dangerous unsupported plates. Although a conflict existed on this factual question, (between Darbonne and Ehrmann) it is reasonable to conclude that the trial judge resolved the conflict in favor of plaintiff. We cannot say the trial judge, in this respect, erred.

In Chaney v. Brupbacher, 242 So.2d 627 (La.App. 4th Cir. 1970), we held that an employer and its supervisory personnel have the obligation to provide workmen with a reasonably safe working place. We stated in Chaney :

"(I)n our opinion a workman's superior cannot create or permit danger and send the workman into it with a warning and escape liability on a theory that the workman was contributorily negligent merely by going into the danger. The workman's only other alternatives are to try to tell his superior how to run the job, or to quit."

In the instant case, the decedent was performing his duties on the top of the tank without safeguards and without warning of the dangerous unsupported metal plates. Under the circumstances we find no error in the apparent conclusion reached by the trial judge that Burmaster was not guilty of contributory negligence or assumption of risk.

QUANTUM

Under LSA C.C. art. 2315, in a suit resulting from the death of a tort victim, two claims exist. The first is the "survival" action for the damages sustained by the tort victim. These damages, for which the tort victim could have recovered had he lived, is brought by his "survivor", i. e. his spouse or other persons named in LSA C.C. art. 2315. The second is the "wrongful death" action for damages to the survivor for the loss resulting from the victim's death. See Callais v. Allstate Insurance Company, 334 So.2d 692 (La.1976), on rehearing; King v. Cancienne, 316 So.2d 366 (La.1975); Wakefield v. Government Employees Insurance Company, 253 So.2d 667 (La.App. 4th Cir. 1971), writ denied, 260 La. 286, 255 So.2d 771 (1972). The survival action includes recovery for pain and suffering, loss of earnings, and other damages sustained by the victim up to date of death. King v. Cancienne, supra; Payne v. Georgetown Lumber Company, 117 La. 983, 42 So. 475 (1906); Dark v. Brinkman, 136 So.2d 463 (La.App. 3d Cir. 1962). The wrongful death action includes damages to the survivor for loss of love and affection, loss of services, and loss of support. Ayala v. Bailey Electric Company, Inc., 318 So.2d 645 (La.App. 4th Cir. 1975); Howard v. Hardware Mutual Casualty Company, 253 So.2d 555 (La.App. 1st Cir. 1971), writ denied, 260 La. 19, 254 So.2d 620 (1971). The loss in the wrongful death action includes loss of support from the date of death to the date of trial and loss of future support from the date of trial. Wakefield v. Government Employees Insurance Company, Supra.

The damage award to plaintiff by the trial judge consisted of the following amounts:

                $125,000.00  -  decedent's pain and suffering
                  39,285.00  -  past loss of income
                  75,000.00  -  plaintiff's loss of love and affection
                  40,000.00  -  plaintiff's loss of services
                 368,212.00  -  plaintiff's loss of support and future income
                  19,660.32  -  stipulated medical expenses
                   1,000.00  -  funeral expenses
                -----------
                $668,157.32  -  TOTAL 4
                

Though defendants do not dispute the medical and funeral expenses, they argue that the other aspects of the award constitute an abuse of the trial court's discretion. We agree, and reduce the award to $269,779.32 (including the undisputed medical and funeral expenses).

Survival Action Decedent's Pain and Suffering

The medical evidence is essentially undisputed. Immediately after the July 27, 1974 fall, Burmaster was taken to the Emergency Room of West Jefferson Hospital. He was seen at the hospital by Dr. Jack L. Winters, an orthopedic surgeon, who determined that he had sustained a fracture dislocation of the main joint of his left foot with laceration of the skin, multiple open tarsal fractures of the left foot, comminuted closed fractures of the right leg between the knee and the ankle, a closed fracture of the right ankle, a closed comminuted fracture of the right wrist and forearm, dislocation and disruption of the right distal radial ulna joint, a comminuted fracture of the fourth lumbar vertebrae involving the spinal cord, traumatic shock and a cerebral concussion. It was also ascertained that Burmaster had abdominal internal injuries and rupture of the joints on the left side of the breast bone. Casts were placed on both lower extremities and the fractures were aligned as well as possible. Dr. Winters described Burmaster's pain as "marked and severe".

Burmaster remained in Intensive Care until August 2, 1974. On August 13th the casts were changed and an attempt was made, without success, to set the leg fracture. The right wrist and forearm were also set.

Dr. Carl F. Culicchia, a neuro-surgeon, testified that the compression fracture of the lumbar vertebrae had lacerated and contused the nerves of the spinal canal. On August 16, Burmaster underwent a laminectomy and spinal fusion. Dr. Culicchia noted that the spinal injury was such that Burmaster, though partially paralyzed, could still feel pain. This physician described decedent's injuries as "extensive and painful" and stated that it was necessary to give him intravenous pain suppressants. Following surgery Burmaster experienced paralysis of the lower extremities.

On September 6, 1974, while under anesthesia for another operation, Burmaster underwent cardiac arrest due to a pulmonary embolism (a blood clot lodging in the lung) and was given cardiac massage. He regained consciousness, and according to Dr. Winters was aware of how seriously ill he was at that time. While Burmaster was still in the recovery room of the intensive care unit, he suffered another cardiac arrest and died on the operating table. Dr. Bert A. Glass, the attending surgeon, was of the opinion that...