Cosse v. Allen-Bradley Co.

• Citation: 601 So.2d 1349
• Decision Date: 26 May 1992
• Docket Number: 91-C-2832,ALLEN-BRADLEY,Nos. 91-C-2816,s. 91-C-2816
• Parties: Godfrey COSSE v.COMPANY, et al. 601 So.2d 1349, Prod.Liab.Rep.(CCH)P. 13,220
• Court: Supreme Court of Louisiana

Page 1349

601 So.2d 1349

Godfrey COSSE v. ALLEN-BRADLEY COMPANY, et al.

Nos. 91-C-2816, 91-C-2832.

601 So.2d 1349, Prod.Liab.Rep.(CCH)P. 13,220

Supreme Court of Louisiana.

May 26, 1992.

Rehearing Denied June 26, 1992.

Christopher James Bruno, Joseph Michael Bruno, Bruno & Bruno, for applicant.

Thomas Joseph Wyllie, Richard Bouligny Eason, II, Adams & Reese, John J. Weigel, Madeleine Fischer, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John A. Bivins, Roy, Carmouche, Bivins, Judice, Henke & Breaud, Daniel Aubry Ranson, Steven Dow Oliver, Windhorst, Gaudry, Ranson, Higgins & Gremillion, for respondents.

MARCUS, Justice.

In 1984 Godfrey Cosse, an employee of Celotex Corporation (Celotex), was injured when his leg was caught in a scrap conveyor at the Celotex Marrero plant. Cosse filed suit for damages, naming as defendants Link-Belt Corporation (Link-Belt) ¹ and Rust Engineering Company (Rust). ² Cosse alleged that his injuries were caused by the defective conveyor that was manufactured by Link-Belt and designed by Rust. Defendants filed answers generally denying the allegations of the petition. Rust also filed a peremptory exception on the ground that Cosse's suit was barred by La.R.S. 9:2772. Link-Belt filed a motion for summary judgment based in part on the same ground. The trial judge denied the exception and the motion for summary judgment. Celotex, a self-insured worker's compensation carrier, intervened for reimbursement of worker's compensation benefits and/or medical expenses paid or to be paid in the future.

After a jury trial, the jury returned a verdict in favor of Cosse and awarded him $444,612.00. The jury allocated fault for Cosse's damages: Rust 50%, Link-Belt 30%, Celotex and its employees 15%, and Cosse 5%. The trial judge entered judgment finding Link-Belt and Rust liable jointly, severally, and in solido for $422,343.40 together with legal interest from date of judicial demand and costs. ³ Celotex, as intervenor, was awarded $96,474.40 plus legal interest from the date of each payment and in preference to sums due Cosse. ⁴ The judge ordered Celotex to deduct from its intervention award fifty-two per cent of Cosse's attorney fees and costs. Any credit due to Celotex against its liability for future worker's compensation benefits or medical expenses was ordered to be reduced by Cosse's 5% fault. Celotex, Link-Belt, and Rust appealed.

The court of appeal reversed the judgment of the district court and rendered judgment in favor of Link-Belt and Rust and against Cosse. ⁵ Although the court found that there were degrees of negligence to be shared by all the parties, it concluded that

no reasonable juror could have found that there was any other cause for this accident other than the complete negligence and lack of credible testimony on behalf of the plaintiff, Mr. Cosse. Further, we must conclude that any possible combined negligence of Celotex/Rust/Link Belt simply did not contribute to the accident.

On the applications of Cosse and Celotex, we granted certiorari to review the correctness of that decision. ⁶ The applications were consolidated for hearing before this court.

The primary issue in this case is whether the court of appeal erred in reversing the jury's findings of fault.

Under Louisiana products liability law, ⁷ to recover from a manufacturer or supplier, a plaintiff must prove that the injury resulted from the condition of the product, the condition made the product unreasonably dangerous to normal use, and the condition existed at the time the product left the manufacturer's or supplier's control. Halphen v. Johns-Manville Sales Corp., 484 So.2d 110, 113 (La.1986); Bell v. Jet Wheel Blast, 462 So.2d 166, 168 (La.1985). A product may be unreasonably dangerous per se or unreasonably dangerous due to a construction defect, a defect in design, or a failure to warn adequately of a danger inherent to normal use that is not within the knowledge of or obvious to the ordinary user. See Halphen, 484 So.2d at 114-15. To recover for negligence, a plaintiff must prove that the injury or damages were caused by a breach of a duty owed by the defendant. There must be both a cause in fact and a legal cause of the damages. Sinitiere v. Lavergne, 391 So.2d 821, 825 (La.1980).

In either a negligence or products liability case, the jury may also take into account any fault of the plaintiff that may have caused the damages. See Bell, 462 So.2d at 171. However, negligence or fault on the part of the plaintiff will not necessarily defeat the claim, but can reduce the amount to be awarded. ⁸ In allocating fault, "the court or jury should consider the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages." Ingram v. Caterpillar Mach. Corp., 535 So.2d 723, 730 (La.1988). The factors to be considered include: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. Watson v. State Farm Fire and Casualty Ins. Co., 469 So.2d 967, 974 (La.1985).

In Louisiana, the manifest error/clearly wrong standard applies to appellate review of a jury's findings of fact. In Rosell v. ESCO, 549 So.2d 840, 844 (La.1989), we stated:

[I]f the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. [citations omitted]

We must therefore determine whether the jury in this case was reasonable in finding that Link-Belt, Rust, Celotex, and Cosse were at fault in causing Cosse's injury and reasonable in apportioning fault among them.

Celotex is a producer of insulation boards made from bagasse, a by-product of sugar cane. Finishing room # 5 of the Marrero plant, in which the dried and processed slabs of bagasse were cut into boards, contained two conveyors. The north-south conveyor carried slabs to an edge-cut saw and an edge-trim saw. Any scraps cut from the slabs would fall onto an east-west scrap conveyor located beneath the finishing room floor. The scrap conveyor was built in 1947 as part of a contract between Celotex and Rust for the design and construction of additions to the Marrero facility. Rust in turn contracted with Link-Belt for the scrap conveyor. Rust assembled and installed the scrap conveyor sent by Link-Belt and was responsible for installation of the electrical power supply to the scrap conveyor. The scrap conveyor consisted of a frame made of two parallel chains connected by a series of wooden flights. The flights pushed the scraps along a metal plate to the "hog" at the head end of the conveyor, which ground the scraps for reprocessing into boards. The tail end of the conveyor, the "return," was approximately eighty feet from the hog and consisted of two sprockets connected by a shaft that allowed the wooden flights to move in a continuous motion. The opening to the return area, the "trench," was covered at floor level by a perforated metal plate that could be lifted to allow access for cleaning or maintenance. The entire trench was approximately four feet by four feet by four feet. The work area in the trench, however, was reduced due to the presence of the conveyor. Three switches controlled power to the scrap conveyor--a main switch on the wall by the hog that controlled electrical power to the entire building, a relay switch on the saws, and a disconnect switch in the trench. In order to do maintenance or cleaning work in the trench while the scrap conveyor was shut down, an employee could lift the metal grate, reach down and turn the trench switch off to prevent someone at another location from inadvertently turning on the conveyor. Neither Link-Belt nor Rust designed or provided the trench switch, it was installed by Celotex after completion of the plant additions.

Cosse, a lift machine operator in finishing room # 5, was required to help with clean-up whenever the production line was down. On June 7, 1984, while the finishing room machinery was down for repair and the scrap conveyor was not in operation, Cosse went down into the trench to clean out accumulated scraps. He did not turn the switch in the trench to "Off" and positioned his left foot on the conveyor. The conveyor was restarted from the wall switch, catching Cosse's leg between a wooden flight and the shaft and causing him severe injury.

The jury found that a cause of Cosse's injuries was the defective product, the scrap conveyor. Cosse offered testimony of three expert witnesses on the issue of the defects of the conveyor. An expert in the field of human factors engineering testified that the conveyor was unreasonably dangerous because it failed to include appropriate safety devices, such as an interlock device that would automatically render the conveyor inoperative whenever the metal grate was lifted. He believed that the existing trench switch was not adequate because there was no reminder to turn it off and no indication of its purpose. A mechanical engineering expert testified that the conveyor was defective because the trench switch was not an adequate response to the hazard of the machine inadvertently being restarted from another location while someone was working in the trench. He stated that the switch was easily overlooked and had to be operated manually, rather than automatically. A third plaintiff expert testified that the conveyor was defective for three reasons--the trench was too small, a worker in the...