Lewis v. Timco, Inc.

• Decision Date: 14 February 1983
• Docket Number: No. 81-3022,81-3022
• Citation: 697 F.2d 1252
• Parties: Alfred LEWIS, Plaintiff-Appellant Cross-Appellee, v. TIMCO, INC., et al., Defendants-Appellees, v. JOY MANUFACTURING, Defendant-Appellee Cross-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1252

697 F.2d 1252

Alfred LEWIS, Plaintiff-Appellant Cross-Appellee, v. TIMCO, INC., et al., Defendants-Appellees, v. JOY MANUFACTURING, Defendant-Appellee Cross-Appellant.

No. 81-3022.

United States Court of Appeals Fifth Circuit.

Feb. 14, 1983.

Opinion on Granting of Rehearing En Banc April 18, 1983.

Robert K. Guillory, Cornelius Dupre, II, Eunice, La., for plaintiff-appellant, cross-appellee.

Patrick A. Juneau, Jr., Lafayette, La., for Home Petroleum.

Robert M. Contois, Jr., Edith Brown Clement, New Orleans, La., for Atwood Oceanic, Inc.

James E. Diaz, Lafayette, La., for Rebel Rentals.

John A. Jeansonne, Jr., Lafayette, La., for Joy Mfg.

Hal Broussard, Lafayette, La., for Timco.

Appeals from the United States District Court for the Western District of Louisiana.

Before GARZA, POLITZ and WILLIAMS, Circuit Judges.

POLITZ, Circuit Judge:

Alfred Lewis was injured while working on a jackup drilling barge in the coastal waters of Louisiana. Lewis sued Joy Manufacturing Company (manufacturer of the power tong unit involved in his injury), Home Petroleum Corporation (the offshore mineral lessee), Atwood Oceanics, Inc. (owner and operator of the VICKSBURG, the barge on which the injury occurred), Edwards Rental and Fishing Tools, Inc. (engaged in retrieving an obstruction from the drilling hole), and Rebel Rentals, Inc. (owner of the power tong unit involved in the accident). After a bench trial, the district court assessed financial responsibility 40% each to Joy Manufacturing and Rebel Rentals and 20% to Edwards Rental. ¹ Lewis was found 50% at fault in a comparative negligence analysis and his damages were accordingly reduced, resulting in a net recovery of $343,027.22.

Lewis appeals contending that insofar as Joy Manufacturing is concerned, his claim sounds in strict products liability and, therefore, comparative negligence should not operate to reduce his recovery. We agree. Joy Manufacturing cross-appeals, contending that Timco and Atwood Oceanics should not have been dismissed as defendants. We disagree. Accordingly, the judgment of the trial court is affirmed in part and reversed in part.

Facts

Lewis, part of a crew furnished by Timco to the VICKSBURG, operated hydraulic tongs used in the "make-up" of tubing joints being placed in a well. ² A computerized control unit was supplied by Rebel Rentals to monitor the torsional force applied to the tubing joints. Encountering difficulty using the original tongs with the control unit, Rebel Rentals sent the vessel a set of Hillman-Kelley Model 500C tubing tongs manufactured by Joy Manufacturing. ³ These were involved in the accident.

Lewis was relatively inexperienced in the operation of the tongs. On the day before his accident, a piece of equipment used to test the tubing was accidentally dropped in the drilling hole. An employee of Edwards Rental was dispatched to retrieve the equipment with a special "fishing tool." While Lewis and other Timco workers were assisting in the "fishing" operation, the power tong device failed to shut off automatically upon release of the throttle, as it should have done, and Lewis was seriously injured. As the trial court found, the "tongs had a design defect in that a control setting could be imposed which would cause them to continue operating even when the throttle was released." ⁴ The district court considered Lewis to be negligent for "attempting to make up the fishing tool joint without adjusting the length of the snubbing line."

The findings that the power tongs were defective and unreasonably dangerous and that Lewis' negligence contributed to his injuries squarely present the question whether the general maritime law rule of comparative negligence is applicable in a products liability case by a longshoreman. ⁵ We conclude that it is not.

Strict Liability and Comparative Negligence

Although Joy Manufacturing challenges on appeal the trial court's conclusion that the tongs were defective, we are convinced that the district court's findings are legally and factually correct. That precipitates our consideration of the question of comparative negligence in a strict products liability suit, heard in federal court by virtue of the general maritime law. We start with the premise that comparative fault has long been the generally accepted doctrine in maritime torts. See, e.g., United States v. Reliable Transfer Co., 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975); Pope & Talbot Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953). But this sapient rule that when "all share in fault for the loss, all should share in bearing the economic burden," Houston-New Orleans, Inc. v. Page Engineering Co., 353 F.Supp. 890, 900 (E.D.La.1972), is not absolute. We are persuaded that the principle should yield to accommodate the realities of a products liability action.

As a policy matter, strict liability in tort in products cases deals with business or enterprise responsibility; "public policy demands that the burden of accidental injuries caused by products intended for consumption be placed on those who market them, and be treated as a cost of production against which liability insurance can be obtained." Restatement (Second) of Torts Sec. 402A, comment c (1965). This basic objective is impaired when a plaintiff's recovery in a products liability case is diminished by comparative negligence. Plant, Comparative Negligence and Strict Tort Liability, 40 La.L.Rev. 403 (1980); Hickey, Comparative Fault and Strict Products Liability: Are They Compatible?, 5 Pepperdine L.Rev. 501 (1978). Indeed, since the concept of "strict liability" involves holding a defendant--a manufacturer or a distributor in the products case--answerable without a demonstration of negligence, ⁶ it is considered by many commentators to be a separate ground for a tort suit. One writer has stated, "no comparison of conduct is possible, since the bases of imposition of strict and negligent liability are dissimilar." Note, Products Liability, Comparative Negligence, and the Allocation of Damages Among Multiple Defendants, 50 S.Cal.L.Rev. 73, 102 (1976). ⁷

Our colleagues in several of the other circuits have reached opposite results, either implicitly or explicitly applying or declining to apply the doctrine of comparative negligence in products liability cases in admiralty. The Eighth Circuit, in Lindsay v. McDonnell Douglas Aircraft Corporation, 460 F.2d 631 (8th Cir.1972), a products liability case in admiralty, applied the rules of strict liability, citing Restatement (Second) of Torts Sec. 402A (1965) as "the correct law to be applied." In Schaeffer v. Michigan-Ohio Navigation Co., 416 F.2d 217 (6th Cir.1969), a quorum decision, the Sixth Circuit recognized the viability of a products liability claim in admiralty and, without discussion but merely citing Pope & Talbot, applied the doctrine of comparative fault. The Ninth Circuit opinion in Pan-Alaska Fisheries, Inc. v. Marine Const. & Design Co., 565 F.2d 1129 (9th Cir.1977), contains a more detailed discussion. While acknowledging that the doctrine of strict products liability is compatible with admiralty and that comment "n" to section 402A of the Second Restatement of Torts rejects contributory negligence as a defense, the Pan-Alaska court wrote: "we find that any label in comment 'n' which ... allows plaintiff to recover full damages, even though he was partially at fault ... is not consistent with comparative fault principles and is therefore rejected." Id., at 1139 (citing Sun Valley Airlines v. Avco-Lycoming Corp., 411 F.Supp. 598 (D.Idaho 1976); Butaud v. Suburban Marine & Sporting Goods, Inc., 555 P.2d 42 (Alaska 1976)). We are not persuaded.

We conclude that if the user of a defective product acts in a reasonably foreseeable manner, his simple negligence, ineptness or inadvertence, while possibly contributing to his injuries, should not aid the manufacturer of an unreasonably dangerous item by effectively reducing the manufacturer's financial accountability. The Pan-Alaska court, while invoking the comparative negligence rule, noted that its sense of justice and fair play would be offended if a manufacturer were required to bear the entire loss in an instance where the product defect were slight and the user's conduct highly irresponsible. 565 F.2d 1139-40. This reasoning cuts both ways. In the case before us, the trial court found as a fact, protected by Rule 52(a) of the Federal Rules of Civil Procedure, that the power tongs were defective and dangerous. Lewis and others working aboard the VICKSBURG were placed in substantial peril by this defect. As contrasted with the risks to which Joy Manufacturing exposed many, Lewis' simple negligence in failing to properly adjust the "snub line" on the tongs wanes into insignificance. And the inadvertence of Lewis, working on only his second full-time job assignment as a power tong operator, endangered no one but himself.

If strict products liability seeks to impose enterprise responsibility upon the entity exposing others to the risks of its defective products, as we perceive the rationale, then the facts of the instant case dramatize the inappropriateness of applying comparative negligence principles. We therefore decline to apply the doctrine of comparative negligence in this strict products liability action in admiralty. To the extent Lewis' recovery against Joy Manufacturing was diminished by his negligence, we reverse the trial court.

The Dismissal of Atwood Oceanics

Both Lewis and Joy Manufacturing argue that the Supreme Court's decision in Scindia Steam Nav. Co. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), altered the law in this circuit regarding a vessel's duty to a longshoreman under 33 U.S.C. Sec. 905(b). Specifically, Lewis urges that the district court erred in failing to find Atwood Oceanics at fault although its employees had seen him experiencing difficulty in using the tongs. We cannot...