93 1983 La.App. 1 Cir. 11/10/94, Randolph v. General Motors Corp.

Citation646 So.2d 1019
Parties93 1983 La.App. 1 Cir
Decision Date10 November 1994
CourtCourt of Appeal of Louisiana — District of US

Terrence J. Lestelle, New Orleans, Christopher B. Siegrist, Houma, for plaintiff/appellee Larry Randolph.

Robert P. Cuccia, Houma, for defendants/appellant Terrebonne Parish Consol. Government, Terrebonne Parish Police Jury and Terrebonne Parish.

Sidney C. Sundbery, C. Berwick Duval, II, Houma, for defendant/appellant Terrebonne Parish Consol. Government.

John J. Weigel, New Orleans, for defendant/appellee FMC Corp.

Michael S. Guillory, New Orleans, for intervenor/appellee American Cas. Co.

Camille A. Morvant, II, Thibodaux, for defendant/appellee Reco Crane Co.

Howard B. Kaplan, Metairie, for defendant/appellant General Motors Corp.

James P. Nader, Metairie, for third party defendant/appellees G & W Const. Co., Inc. & Indus. Indem. Ins. Co.

Before EDWARDS, LeBLANC and PITCHER, JJ. [93 1983 La.App. 1 Cir. 2] LeBLANC, Judge.

In this products liability case, defendants appeal from a judgment awarding plaintiff $475,860.20 for personal injuries.

FACTS

Plaintiff, Larry Randolph, was employed to operate a dragline owned by defendant, Terrebonne Parish Consolidated Government (Parish), pursuant to a contract with plaintiff's employer, G & W Construction, to furnish the Parish with a dragline operator. The dragline's diesel engine was manufactured by defendant, General Motors Corporation (GM) in 1978. The dragline was subsequently purchased used by the Parish in 1983.

On October 8, 1986, while checking the dragline preparatory to beginning work, plaintiff noticed that the gantry pin was displaced. While standing on the dragline's counterweight, attempting to re-insert the pin, plaintiff was startled by a loud noise from the dragline engine, which immediately went into "overspeed". Plaintiff fell off the dragline, striking his head and feet on the wooden mat on which the dragline was positioned.

Plaintiff was treated that day by Dr. Leslie Walker for complaints of pain in his heels and ankles. Dr. Walker treated plaintiff for contusions to both heels, discharging him to return to work on October 13, 1986. Thereafter, plaintiff worked for G & W, without interruption, through May 21, 1987.

Shortly after plaintiff's accident, a parish mechanic, Mr. Douglas Eskind, determined that the cause of the engine malfunction was the failure of the engine's governor. After removing the failed governor, Mr. Eskind attempted to have it fixed at a repair shop, but was told that it could not be repaired. He purchased a new governor and placed it in the dragline. He explained that he then took the old governor and placed it on the counter of the parish workshop. At trial he was unable to say what had happened to the governor, but indicated it may have been thrown away.

[93 1983 La.App. 1 Cir. 3] On May 16, 1987, plaintiff saw Dr. Walker for complaints of leg pain. Dr. Walker's diagnosis was intermittent claudication, which is an arteriosclerotic change of the blood vessels in the leg; he referred plaintiff to a surgeon for an angiogram and evaluation.

According to plaintiff's trial testimony, as he attempted to step up onto a motor grader on May 21, 1987, while working for G & W, his right leg locked up and he fell back a short distance to the ground. The following day was the last day plaintiff worked for G & W, and he has not worked since that time.

On May 25, 1987, plaintiff was hospitalized for problems totally unrelated to his legs and back. While hospitalized, he complained to his doctors for the first time of back pain. Plaintiff began treatment for back pain and ultimately underwent two disc surgeries.

The present suit was filed by plaintiff against GM, the Parish and several other parties not parties to this appeal.

ACTION OF THE TRIAL COURT

A bifurcated trial was held, with the jury deciding the case as to GM and the judge determining the Parish's liability.

Following trial, the jury was provided with special interrogatories, which it answered as follows:

1. Was the GENERAL MOTORS CORPORATION engine defective at the time of LARRY RANDOLPH'S October 8, 1986 accident? Yes

2. Was the GENERAL MOTORS CORPORATION engine defective in 1978, when it left the custody and control of GENERAL MOTORS CORPORATION? No

3. Was a defect in the GENERAL MOTORS CORPORATION engine a legal cause of any injuries sustained by LARRY RANDOLPH? Doesn't apply

4. Was the fault of TERREBONNE PARISH a legal cause of any injuries sustained by LARRY RANDOLPH? Yes

5. Was the fault of LARRY RANDOLPH a legal cause of any injuries which he sustained? No [93 1983 La.App. 1 Cir. 4] 6. Express (in terms of a percentage) the degree of fault, if applicable, of each of the following persons for any injuries sustained by LARRY RANDOLPH:

                GENERAL MOTORS CORPORATION   20%
                TERREBONNE PARISH            80%
                LARRY RANDOLPH                0%
                                     TOTAL  100%
                

7. What amount of damages, if any, did LARRY RANDOLPH sustain for the following: (Do not deduct for percentages of fault of the parties, the Court shall do this.)

                    a.  Past and future physical and mental pain and suffering  $ 21,000.00
                    b.  Past medical expenses                                   $ 34,000.00
                    c.  Future medical expenses                                 $ 30,000.00
                    d.  Past lost wages                                         $100,000.00
                    e.  Future lost wages                                       $ 50,000.00
                    f.  Disability                                              $ 15,000.00
                

The trial court instructed the jury that its answers to interrogatories 2, 3, and 6 were inconsistent and sent the jury back for further deliberations regarding these questions. The jury returned with the same responses to interrogatories 2 and 6, but in response to interrogatory 3 indicated that a defect in the GM engine was a legal cause of plaintiff's injuries. The trial court instructed the jury that its answers to interrogatories 2 and 6 were still inconsistent and again sent the jury back for further deliberations. Thereafter, the jury returned, answering yes to interrogatory 2, indicating the engine was defective when it left GM. The jury assessed GM with 20% fault.

After taking the matter under advisement, the trial court rendered a judgment on August 18, 1992, finding the Parish's negligence was 50% at fault in causing plaintiff's injuries. The court found plaintiff free from fault and fixed his damages as follows:

[93 1983 La.App. 1 Cir. 5]Past and future physical & mental pain and suffering $105,000.00

                Past medical expenses                                 $ 34,092.75
                Future medical expenses                               $ 30,000.00
                Lost past wages                                       $118,621.45
                Future loss of wages                                  $143,146.00
                Disability                                            $ 45,000.00
                                                                      -----------
                Total                                                 $475,860.20
                

The final judgment rendered by the court made both the trial court's judgment and the jury's verdict the judgment of the court.

Thereafter, pursuant to plaintiff's motion, the trial court granted a judgment notwithstanding the verdict (JNOV), and held GM 50% at fault and the Parish 50% at fault. The JNOV also awarded plaintiff damages in accordance with the trial court's original assessment of damages. The trial court denied motions for new trial filed by plaintiff and the Parish. GM and the Parish have now appealed this judgment.

ISSUES

1. Whether the trial court erred in granting a JNOV to reconcile its judgment with the jury's verdict?

2. Whether the trial court erred in finding the governor was defective when it left GM's control?

3. Whether the trial court erred in applying the theory of spoliation of the evidence to impose liability on the Parish?

4. Whether the trial court erred in finding plaintiff's disc injury was caused by the accident of October 8, 1986?

5. Whether the trial court erred in awarding excessive costs against GM?

JNOV

GM argues the trial court erred in granting a JNOV in the present case. We disagree, concluding the JNOV was properly granted under the circumstances. 1

In the instant case, the trial court and the jury each found plaintiff to be free from fault. The jury additionally found GM to be 20% at fault. However, the trial court concluded the Parish was only 50% at fault, leaving the remaining 50% fault to be assessed against GM, contrary to the jury's assessment of 20% fault. [93 1983 La.App. 1 Cir. 6] Moreover, the amounts awarded in the jury verdict and the trial court judgment were inconsistent regarding several items of damages. Under these circumstances, the trial court did not err in granting a JNOV to reconcile its findings with those of the jury. In a bifurcated trial where the jury and the judge reach different findings as to the liability of private and public defendants, a JNOV is a proper means of reconciling the two verdicts. Dean v. Terrebonne Parish Police Jury, 510 So.2d 82, 86 (La.App. 1st Cir.1987); Ourso v. Grimm, 92-1274 (La.App. 3rd Cir. 1/5/94), 630 So.2d 963, 965, writs denied, 94-0346 (La. 3/25/94), 635 So.2d 230 and 94-0339 (La. 3/25/94), 635 So.2d 231. See also, Lemire v. New Orleans Public Service, Inc., 458 So.2d 1308, 1310 (La.1984).

DEFECT IN GOVERNOR

GM contends that the trial court erred in finding that the governor manufactured by GM was defective at the time it left GM's control...

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