93-852 La.App. 3 Cir. 6/22/94, Mayo v. Nissan Motor Corp. in U.S.A.

• Decision Date: 22 June 1994
• Citation: 639 So.2d 773
• Parties: 93-852 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 773

639 So.2d 773

93-852 La.App. 3 Cir. 6/22/94

Louella MAYO, Plaintiff-Appellant, v. NISSAN MOTOR CORPORATION IN U.S.A., Fisher Marine, and Red River Marine, Inc., Defendants-Appellants.

No. 93-852.

Court of Appeal of Louisiana Third Circuit.

June 22, 1994.

John Taylor Bennett, Marksville, Charles Shelby Norris, Jr., Monroe, for Lou Mayo.

Michael Thomas Pulaski, Keith W. McDaniel, New Orleans, for Nissan Motor Corp.

Renee Yvette Roy, Mansura, for Everette Mayo, Sr.

Howard N. Nugent, Jr., Alexandria, for Red River Marine.

William H. deLaunay, Jr., Alexandria, for Fischer Marine.

Before LABORDE, KNOLL, THIBODEAUX and COOKS, JJ., and CULPEPPER ^*, J. Pro Tem.

[93-852 La.App. 3 Cir. 1] KNOLL, Judge.

This is a maritime tort suit. Plaintiff, Louella Mayo, sustained personal injuries while a passenger in the "Fisher Marine" aluminum "john" boat owned by her and her husband, Everette Mayo, and operated by her husband, when the boat struck a tree in the Ouachita River. Plaintiff filed suit in state court under the "savings to suitors" clause, naming several defendants, including Fisher Marine, Nissan Industrial Equipment Company, and Red River Marine. The Fisher Marine boat was console-steered and powered by a 40 horsepower motor when Mayo bought it in 1976 or 1977, but it was rated for a 55 horsepower motor. During 1989 Mayo removed the console and converted the boat to a tiller-steered boat. This reconfiguration of the boat reduced the motor rating to 30 to 35 horsepower. However, Red River Marine sold and installed on the boat a 55 horsepower tiller-steered Nissan motor. Plaintiff's [93-852 La.App. 3 Cir. 2] theory of recovery, in part, was that the boat was overpowered by the 55 horsepower motor, which caused the boat/motor to go out of control. Fisher Marine filed a third-party demand against Everette Mayo and his insurer, and Nissan and Red River Marine filed third-party demands against Everette and Louella Mayo.

The third-party demands against Mayo's insurer were dismissed by summary judgment. The trial court overruled a peremptory exception to maritime jurisdiction prior to trial, and we denied a writ on the issue ¹. Fisher Marine ultimately settled with plaintiff. A bench trial was held as to the claims against Nissan and Red River Marine and the third-party demands. The court found that the "overpowered" boat/motor combination was a cause of the accident and found Nissan, Red River Marine, and Fisher Marine each 11% at fault. The court also found Everette Mayo 67% at fault. The court fixed Louella Mayo's damages at $838,993. The court held that Nissan and Red River Marine were not solidarily liable for Louella Mayo's damages, but held Nissan and Red River Marine each responsible for their virile share of 11%, or $92,289.23 plus interest from the date of judicial demand. Having found Nissan and Red River Marine liable only for their virile shares, the court dismissed their third-party demands against Everette Mayo. The court also dismissed the third-party demands against Louella Mayo. The parties appeal as follows.

LOUELLA MAYO'S APPEAL

Louella Mayo contends: 1.) the trial court erred in failing to apply general maritime law to the issue of solidarity to cast each defendant liable, in solido, for the entire amount of the judgment; 2.) in the alternative, if Louisiana law applies, the court erred in failing to cast Nissan in judgment for 50% of the damages under LSA-C.C. art. 2324; 3.) the trial court erred in reducing Louella Mayo's recovery by the fault attributable to Everette Mayo; 4.) the trial court erred in awarding interest only from the date of judicial demand and not from the date of the accident; and, 5.) the trial court erred in failing to find that [93-852 La.App. 3 Cir. 3] Red River Marine was the agent of Nissan and in failing to hold Nissan liable for the fault of Red River Marine.

EVERETTE MAYO'S APPEAL

Although Everette Mayo was not cast in judgment, he appeals the apportionment of fault to him in light of Louella's appeal on the issue of solidary liability.

Red River Marine filed a motion in our court asking that Everette Mayo's appeal be dismissed. Red River Marine points out that Everette Mayo only appears in this law suit as a third-party defendant to claims filed by third-party plaintiffs, Nissan and Red River Marine. Accordingly, it argues that he lacks standing to appeal since the third-party demands were dismissed and he was not cast in judgment in his wife's main demand against Nissan and Red River Marine.

We referred Red River Marine's dismissal motion to the merits and for reasons assigned infra, we dismiss Everette Mayo's appeal.

NISSAN'S APPEAL

Nissan contends: 1.) the trial court erred in assigning any fault to Nissan because the accident was caused solely by Everette Mayo's negligence; 2.) the trial court was clearly erroneous in finding that Nissan breached a duty to warn; and 3.) the general damage award of $600,000 is excessive and should be reduced.

RED RIVER MARINE'S APPEAL

Red River Marine contends: 1.) the trial court erred when it recognized as a source of duty Red River Marine's alleged position as a seller; 2.) the trial court erred when it held that Red River Marine had breached a duty of care as per their installation of the Nissan motor; and, 3.) the trial court erred in not finding the negligent operation and ownership of the boat by Everette Mayo to be the sole cause of Louella Mayo's injuries.

TRIAL COURT'S REASONS FOR JUDGMENT

We quote in part the trial court's excellent reasons for judgment.

"In 1976 or 1977 Rev. Everette Mayo, Sr., purchased a 15 and 1/2 foot Fisher Marine flat bottomed 'john' boat. The boat was a console steered boat with pedestal seats and was [93-852 La.App. 3 Cir. 4] powered by a 40 horsepower motor. During 1987, the 40 horsepower motor became inoperable and was unable to be repaired. Thereafter, Rev. Mayo decided to purchase another motor for his boat. The boat's rating plate authorized the use of a 55 horsepower motor. It was Rev. Mayo's intention to purchase such a motor. He shopped the various boating and marine supply stores from Jonesville to Alexandria. He located a 55 horsepower motor at Red River Marine, Inc. in Pineville, Louisiana. The motor he decided on was a 55 horsepower motor manufactured in Japan by Tohatusu and marketed in the United States under the Nissan named brand by Nissan Industrial Equipment Co. (hereafter referred to as 'Nissan'.) Rev. Mayo eventually purchased the motor on January 12, 1989, and on that date Red River Marine installed it on his boat.

"Prior to having the motor installed on his boat Rev. Mayo made significant modifications to the vessel. He removed the two fixed pedestal seats and the steering console. He added plywood flooring and modified the seats so that they would be movable and not attached to the vessel in any manner. When the motor was added to the boat it became a tiller-steered outboard motor boat. As a result of such modification, the boat's horsepower rating was reduced from 55 horsepower to 30 or 35 horsepower.

"After purchasing the motor and having it installed on his boat, Rev. Mayo refused an offer from Red River Marine employees to test the boat on nearby Buhlow Lake. Subsequently, Rev. Mayo changed his mind after leaving Red River Marine with his boat in tow and decided to try the motor on the lake. With the help of his two sons he put his boat in and drove it around the lake for a short while. At this time he noticed the boat pulled to the right.

"A week later, on January 19th, Rev. Mayo's son, Kirk Mayo, (hereinafter referred to as Kirk) was involved in an accident while operating the boat. Later that year, in May, another of Rev. Mayo's sons, Tony Mayo, was involved in an accident while operating the boat. And on July 15, 1989, Rev. Mayo and his wife, Louella, together with two friends, Rev. and Mrs. Bingham, were involved in yet another accident while Rev. Mayo was operating the boat. From the time Rev. Mayo purchased the boat until the last accident on July 15, 1989, he made at least two trips back to Red River Marine in Pineville. On these occasions he did not bring the boat back for an inspection or repairs. However, Rev. Mayo did complain about the problems he was having with the boat to the employees of Red River Marine.

* * *

"LOUELLA MAYO'S ACCIDENT

"Mrs. Mayo's theory of recovery is based on the fact that when the accident occurred, the boat [93-852 La.App. 3 Cir. 5] was making a gradual or sweeping turn in the Ouachita River. While making that turn, the boat turned hard to the right, an event caused by 'catching a chine', thereby causing momentary loss of control of the boat sending it crashing into a tree. She surmises the over-powering of the boat caused the 'chine trip', and the subsequent accident.

"Robert Taylor, a defense witness with expertise in the field of naval architecture, marine engineering and accident reconstruction, testified at length regarding tests he performed with the Mayo boat as well as an exemplar boat. He testifies that 'catching a chine' is a 'memorable event'. The occupants of the boat would be thrown to the left and the boat would make a significant change in direction. He thereafter disputes the Mayo boat "caught a" chine prior to impact. He bases this on the testimony of Rev. and Mrs. Bingham, and the fact that he was unable to duplicate the event in either the Mayo boat or the exemplar boat.

"Commander Deck did, however, 'catch a chine' in the Mayo boat with the 55 horsepower motor attached. (Albeit it was accomplished on the Mississippi River the day before the trial began.) While it was conspicuous by it's late forthcoming, the 'chine trip' theory does explain the events which Rev. Mayo testified occurred immediately prior to impact with the partially submerged tree.

"Rev. Mayo testified as follows:

" 'BENNETT: If you could show the Judge where you were coming from and as you're drawing that...