92 1498 La.App. 1 Cir. 1/6/95, Hoyt v. Wood/Chuck Chipper Corp.

• Decision Date: 06 January 1995
• Citation: 651 So.2d 1344
• Court: Court of Appeal of Louisiana — District of US
• Parties: 92 1498 La.App. 1 Cir

Page 1344

651 So.2d 1344

92 1498 La.App. 1 Cir. 1/6/95

Mike Wayne HOYT, et al. v. WOOD/CHUCK CHIPPER CORP., et al.

No. CA 92 1498R.

Court of Appeal of Louisiana First Circuit.

Jan. 6, 1995.

Dissenting Opinion Feb. 2, 1995.

Rehearing Denied Feb. 23, 1995.

John P. Wolff, III, Baton Rouge, for defendant/first appellant, Margot, Inc.

J. Peyton Parker, Jr., Baton Rouge, for plaintiff/second appellant, Mike Wayne Hoyt.

Deborah P. Gibbs, Baton Rouge, for plaintiffs Mike and Leona Hoyt.

Jeffery F. Speer, Frank Flynn, Lafayette, for intervenors/3rd appellants, Intern. Tree Co. and Houston General Ins. Co.

David T. Butler, Jr., Baton Rouge, for defendant/appellee, Goforth Industries.

William Schuette, Baton Rouge, for defendant/appellee, Wood/Chuck Chipper.

Felix Weill, Baton Rouge, for defendant/appellee, Perkins Engine, Inc.

Before CARTER, GONZALES, WHIPPLE, FOGG and PARRO, JJ.

[92 1498 La.App. 1 Cir. 2] WHIPPLE, Judge.

This case is before us on remand from the Supreme Court. For the following reasons, we reverse the trial court's granting of judgment notwithstanding the verdict on the issue of liability and affirm the jury's verdict on the issue of damages.

FACTS AND PROCEDURAL HISTORY

On January 26, 1989, plaintiff, Mike Wayne Hoyt, was seriously injured while changing the blades on a woodchipper owned by his employer, Myron J. "Jim" Luck, d/b/a International Tree Company (International). The woodchipper was purchased by International from the distributor, Goforth Industries, Inc. (Goforth Industries), and was manufactured by Wood/Chuck Chipper Corp. The diesel engine of the machine was manufactured by Perkins Engines, Inc.

Three weeks prior to Mr. Hoyt's accident, International had taken the woodchipper to Margot, Inc. for repairs to the ignition system. Margot, Inc. installed a new ignition flip switch (or "toggle" switch) to turn the machine on and off in place of the ignition key which had been installed by the manufacturer.

Mr. Hoyt was the first person to change the blades of the chipper after the keyed switch was replaced with a toggle switch. As Mr. Hoyt was changing the blades, he accidently hit the toggle switch, turning the chipper on and seriously injuring his hands on the moving blades.

Mr. Hoyt and his wife, Leona Hoyt, sued Wood/Chuck Chipper Corp.; Goforth Industries, Inc. and its insurer, National Union Fire Insurance Co. of Pittsburgh, PA; Margot, Inc. and its insurer, Continental Casualty Company; and Perkins Engines, Inc. International and its insurer, Houston General Insurance Company, filed a petition of intervention to recover medical expenses and weekly compensation benefits paid to Mr. Hoyt. The defendants filed various cross-claims. Prior to trial, plaintiffs dismissed their suit against Goforth Industries, Inc., with prejudice.

After trial on the merits, the jury found International to be 65 percent at fault and Mr. Hoyt to be 35 percent at fault, and [92 1498 La.App. 1 Cir. 3] assessed damages at $1,302,285.43 for Mr. Hoyt and $100,000.00 for Mrs. Hoyt. Because International was Mr. Hoyt's employer, International was statutorily immune from tort liability under LSA-R.S. 23:1032 (and thus not a named defendant), with the result that although the jury assessed substantial damages, none would be paid to the Hoyts.

International and plaintiffs filed motions for judgment notwithstanding the verdict or, in the alternative, for new trial. The trial court granted the motion for judgment notwithstanding the verdict and denied the motion for new trial. The trial court, by amended judgment notwithstanding the verdict, reapportioned fault as follows: International--55.25%; Mr. Hoyt--29.75%; Margot, Inc.--15%; Wood/Chuck Chipper Corp.--0%; and Perkins Engines, Inc.--0%. Plaintiffs, Margot, Inc. and its insurer, and International and its insurer appealed. Numerous assignments of error were raised by the appellants.

In our original opinion, we reversed the granting of the judgment notwithstanding the verdict and remanded the case to the trial court for a new trial. Hoyt v. Wood/Chuck Chipper Corp., 625 So.2d 504 (La.App. 1st Cir.1993). Writs were sought by Mr. Hoyt, Perkins Engines, Inc., Wood/Chuck Chipper Corp., and Margot, Inc. The Louisiana Supreme Court granted writs, vacated our judgment and remanded the case to this court "to decide the case." Hoyt v. Wood/Chuck Chipper Corp., 630 So.2d 783, 784 (La.1994).

REMAND

In granting writs and vacating this court's judgment, the Louisiana Supreme Court directed as follows: "Case remanded to the court of appeal to decide the case." We interpret this as an instruction to make a full determination of the merits. Gonzales v. Xerox Corporation, 320 So.2d 163, 165-166 (La.1975); Myers v. American Seating Company, 93-1350 (La.App. 1 Cir. 5/20/94), 637 So.2d 771, 778.

The Supreme Court in Gonzales held that when the trial court judgment must be disregarded and the entire record is before the appellate court, the appellate court should render judgment on the [92 1498 La.App. 1 Cir. 4] merits. Gonzales, 320 So.2d at 165. When a finding of fact is interdicted because of some legal error implicit in the fact finding process or when a mistake of law forecloses any finding of fact, the appellate court must review the record de novo and render a judgment. Ragas v. Argonaut Southwest Insurance Co., 388 So.2d 707, 708 (La.1980).

As this court stated in its previous decision, the jury's answers to the interrogatories resulted in a severely injured plaintiff being awarded a large damage award by the jury for which he was unable to recover any amount. Hoyt, 625 So.2d at 507. This court concluded that the trial court erred in granting judgment notwithstanding the verdict and in denying the motion for new trial, which this court deemed necessary, in the interests of justice. Thus, we ordered remand of the matter for a new trial. Hoyt, 625 So.2d at 507. However, considering the Supreme Court's dictate to us to "decide the case," as well as the jurisprudence cited above, we conclude that the proper action for this court to take is to decide the issues of fault and apportionment of fault de novo and render judgment accordingly.

FAULT OF THE PARTIES

Margot, Inc.

Plaintiffs contend that Margot, Inc. is at fault in causing Mr. Hoyt's accident because it was negligent in replacing the keyed ignition with a simple toggle switch. To establish liability in a negligence case, the plaintiff must show that: (1) the defendant had a duty to conform its conduct to a specific standard, (2) the defendant's conduct failed to conform to the appropriate standard, (3) the defendant's substandard conduct was a cause of the plaintiff's injuries, and (4) the risk of harm was within the scope of the breached duty. Fox v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, 576 So.2d 978, 981 (La.1991).

Three weeks prior to the accident in question, Mr. Luck brought the woodchipper to Margot, Inc. to have the ignition system repaired. Ronald LeBlanc, the service writer at Margot, Inc. who [92 1498 La.App. 1 Cir. 5] spoke with Mr. Luck, testified that he walked outside with Mr. Luck to look at the chipper, and Mr. Luck asked him to replace the keyed ignition switch with a toggle switch because his employees were going home with the keys and forgetting to bring them back to work the next day. The original repair order was written on a note pad which could not be located by Mr. LeBlanc.

Tommy Fitzsimmons, the mechanic at Margot, Inc., who replaced the keyed switch with a toggle switch, testified that he thought the repair was unsafe. Mr. Fitzsimmons questioned Mr. LeBlanc about the repair to be performed. He asked Mr. LeBlanc if he was sure this was what the owner wanted. Despite the mechanic's concerns, no one working for Margot, Inc. discussed the safety aspects of this repair with Mr. Luck.

Louis Margot, the owner of Margot, Inc., testified that it was company policy to replace machine parts with the same part, unless the customer requested that it be replaced with a different part. Mr. Margot also testified that it was company policy that a mechanic performing a repair he found to be unsafe should speak to the shop foreman and the shop foreman should then contact the equipment owner.

We find that Margot, Inc. is partially at fault in causing the accident for violating its internal policy when it failed to inform Mr. Luck that it believed the repair was unsafe and in negligently performing a repair, which constituted an unsafe alteration of the equipment. Margot's replacing of the keyed switch with the toggle switch made it easier for the engine to start accidentally, and increased the likelihood that, as happened here, the engine would be engaged accidentally, resulting in the injuries suffered by Mr. Hoyt. Moreover, Margot's duty to perform repairs in a safe manner encompassed the risk that an individual using a piece of equipment negligently repaired by Margot would be injured.

International

Any fault on the part of International, Mr. Hoyt's employer, must also be considered. See Gauthier v. O'Brien, 618 So.2d 825, 831 (La.1993). Myron J. "Jim" Luck, owner of International, [92 1498 La.App. 1 Cir. 6] testified that he did not ask Margot, Inc. to replace the keyed switch with a toggle switch. However, we find that Mr. Luck was also at fault, whether he specifically requested that the keyed switch be replaced with a toggle switch or simply failed to warn Mr. Hoyt of the danger of the toggle switch before allowing him to change the blades on the chipper.

Mr. Luck testified that he had been in the tree trimming business for thirty-two years and had been licensed for twenty-four years. Considering Mr. Luck's experience in the business, we conclude that he should have been aware of the danger of the toggle switch, should have informed his employees of the replacement of the keyed switch with the toggle switch and should have...