Hovanec v. Harnischfeger Corp., 85-3651

• Citation: 807 F.2d 448
• Decision Date: 08 January 1987
• Docket Number: No. 85-3651,85-3651
• Parties: Prod.Liab.Rep.(CCH)P 11,266 Andrew HOVANEC, Plaintiff-Appellee, Liberty Mutual Insurance, Intervenor-Appellee, v. HARNISCHFEGER CORP., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 448

807 F.2d 448

Prod.Liab.Rep.(CCH)P 11,266

Andrew HOVANEC, Plaintiff-Appellee, Liberty Mutual Insurance, Intervenor-Appellee, v. HARNISCHFEGER CORP., Defendant-Appellant.

No. 85-3651.

United States Court of Appeals, Fifth Circuit.

Jan. 8, 1987.

Robert E. Couhig, Jr., Michael D. Carbo, Adams & Reese, New Orleans, La., for defendant-appellant.

Michael R. Guidry, H.M. Etheredge, Owen J. Bradley, New Orleans, La., for Hovanec.

Kristin H. White, Metairie, La., for intervenor, Liberty Mutual.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GOLDBERG, REAVLEY and GARWOOD, Circuit Judges.

GOLDBERG, Circuit Judge:

Andy Hovanec had four of his fingers cut off in a tragic industrial accident. He brought suit in Louisiana state court seeking recovery against Harnischfeger Corporation, the manufacturer of a crane that, because of a latent defect, indiscriminately left Hovanec with something more closely resembling a grisly and grotesque protuberance than a hand. Harnischfeger removed the case to federal district court, based on diversity of citizenship. Following a three day trial, the jury rendered its answers to special interrogatories submitted by the court and found that the defect in the crane was a proximate cause of Hovanec's harm.

Harnischfeger takes this appeal from an adverse ruling on its motion for a new trial, made pursuant to Fed.R.Civ.P. 59, asserting that the trial court erred in formulating the jury questions. Harnischfeger challenges the jury questions regarding assumption of risk and employer-negligence, and the court's failure to submit a question concerning contributory negligence. Although the district court's questions and its decision not to submit a question regarding contributory negligence may have been technically flawed, we find that the errors were harmless.

The record reveals that there was insufficient evidence for a reasonable jury to conclude that Hovanec was contributorily negligent or assumed the risk of his considerable harm. In addition, as a matter of Louisiana law, Hovanec's recovery may not be reduced in proportion to the degree of

contributory fault of his employer. We thus affirm the judgment below.

I. Factual Background

The facts of this case are largely uncontroverted. On January 25, 1982, Hovanec was working at the construction site of the University of New Orleans Sports Arena. As an ironworker, Hovanec's task on this eventful day was to construct a cat walk by connecting steel hangers from the bottom of roof trusses--while he worked on joists some 80 or 90 feet up in the air.

Having finished connecting one of the hangers, Hovanec began making his way across the joist to assist a co-worker, John Jacobson, in connecting the next hanger. While "walking the iron"--which was only four inches wide--Hovanec put his hand on the stationary wire cable of the Harnischfeger crane. The wire rope was only eight inches away from the beam he was walking on, and Hovanec touched the cable in order to maintain his balance while manuevering around it. Without any warning to Hovanec, the cable became taut and propelled Hovanec's hand into the unguarded sheave of the crane, severing four of his fingers. Miraculously, Hovanec was able to maintain his balance--holding his sanguine and mascerated hand while perched atop the four inch beam--until helped by his co-workers into a basket that lowered him to the ground.

Unbeknownst to Hovanec, his supervisor D.W. "Buster" Everett--who was working on the ground--had given the crane operator a command that caused the accident. Everett signaled the operator to hoist the next load of hangers, without first checking to ensure that there were no ironworkers in proximity to the dangerous cable. Everett was preoccupied with preparing the next load to go up, and thus tragically took his eye off the beam.

As a result of the defective, unguarded, in-running nip point where the crane cable connected with a pulley, and of Everett's misfortunate, momentary myopic inattention, Hovanec's normally uneventful journey across the iron turned into a precarious perambulation of profoundly tragic proportion. He was hospitalized for thirty days, has had numerous operations, and will never again be able to work in his trade of some 17 years.

At trial, the jury responded to the special interrogatories submitted by the court, determined that Harnischfeger had produced a defective product, and found that the defect was a proximate cause of Hovanec's considerable harm. Thus, the jury awarded Hovanec over $375,000 in damages. The district court denied Harnischfeger's motion for a new trial, and it appeals that denial.

II. Assumption of Risk

Harnischfeger first argues that the district court's jury interrogatory relating to assumption of risk was incorrect as a matter of law. ¹ Notwithstanding this contention, there simply is no evidence in the record to support a finding that Hovanec assumed the risk of the defect or of the employer's negligence that were the proximate causes of his injury. Therefore, we need not address Harnischfeger's legal assertion. See Bass v. United States Department of Agriculture, 737 F.2d 1408, 1414 (5th Cir.1984) ("We will not reverse for an alleged error in the jury instructions if we find, based upon the record, that the challenged instruction could not have affected the outcome of the case.").

As a matter of Louisiana law, to make out a case of assumption of risk that bars or reduces the plaintiff's recovery, ² the defendant must prove by a preponderance Harnischfeger asserts that Hovanec assumed the risk of his injury because when asked at trial whether he "recognized that if [the crane] started up, ... [he] would be in a dangerous predicament," Hovanec responded in the affirmative. Rec.Vol. V at 30. This testimony does not come close to establishing a case of assumption of risk. Indeed, it is largely immaterial.

                of the evidence that:  (1) The plaintiff had full knowledge of the risk;  (2) the plaintiff appreciated the risk;  and (3) the plaintiff voluntarily encountered or consented to the risk.   See, e.g., Howell v. Gould, 800 F.2d 482, 485-86 (5th Cir.1986);  Dorry v. Lafluer, 399 So.2d 559, 562-63 (La.1981);  Langlois v. Allied Chemical Corp., 249 So.2d 133, 140-41 (La.1971);  Lanclos v. Rockwell International Corp., 470 So.2d 924, 932 (La.App. 3d Cir.), writ denied, 477 So.2d 87 (La.1985).  The inquiry is subjective;  what counts for purposes of assumption of risk is not what a reasonable person should have known, appreciated or encountered, but what the plaintiff himself fully knew, appreciated, and actually encountered.  See, e.g., id.    In sum, to establish assumption of risk, the defendant must show the plaintiff's sentience, the plaintiff's certain knowledge that he or she would be endangered by his or her acts
                

Under Louisiana law, Hovanec's recovery can be reduced or barred by the doctrine of assumption of risk only if he had particularized knowledge of the "specific defective condition" that caused his harm. Carpenter v. State Farm, Fire & Casualty Co., 411 So.2d 1206, 1209 (La.App. 4th Cir.), writ denied, 415 So.2d 951 (La.1982) (emphasis added); see Dorry, 399 So.2d at 562. The record, however, is devoid of evidence that Hovanec had knowledge of the hazards that were a cause-in-fact, a substantial cause of his injury. See, e.g., Dixie Drive It Yourself System New Orleans Co. v. American Beverage Co., 242 La. 471, 137 So.2d 298, 302 (1962); Hayes v. Louisiana, 467 So.2d 604, 607-08 (La.App. 3rd Cir.), writ denied, 475 So.2d 354 (La.1985). There is no evidence that Hovanec was even remotely aware of the defective crane sheave that caused his injury. Additionally, one searches the record in vain to find any indication that Hovanec was aware of the possibility that his supervisor would improperly signal the crane operator to send up the load while his hand was on the cable.

Put simply, the particular risks that caused Hovanec's injury were not intrinsic to the defective crane cable. Rather the danger, which became all too real to Hovanec, could only have eventuated as a result of both the errant signal by Everett and the defect in the crane. No evidence in the record supports a conclusion that Hovanec had any knowledge, let alone full knowledge, of these risks.

"No one is required to foresee the negligence of his employer or any third person." Hall v. Safeco Ins. Co., 374 So.2d 715, 718 (La.App. 1st Cir.), writ denied, 378 So.2d 431 (La.1979); see Barrois v. Service Drayage Co., 250 So.2d 135, 141 (La.App. 4th Cir.), writ denied, 259 La. 806, 253 So.2d 66 (La.1971); Bailey v. Trinity Universal Ins. Co., 124 So.2d 575, 577, 578 (...