94 1246 La.App. 1 Cir. 4/7/95, Haydel v. Hercules Transport, Inc.

Decision Date07 April 1995
Citation654 So.2d 418
Parties94 1246 La.App. 1 Cir
CourtCourt of Appeal of Louisiana — District of US

Carolyn A. McNabb, Houma, for plaintiff-appellant Kathy C. Haydel, Individually and on behalf of the Minor Children, Nikki Richard and Michelle Haydel.

Steven B. Rabalais, Lafayette, for defendant-appellee Hercules Transport, Inc.

Joseph Reilly, Houma, for defendant-appellee Tri-State Delta Chemicals, Inc. d/b/a Cropmate Co.

Before LOTTINGER, C.J., and SHORTESS and CARTER, JJ.

[94 1246 La.App. 1 Cir. 2] CARTER, Judge.

This is an appeal from a trial court judgment in an action for damages.

FACTS

On October 18, 1990, Ronald Day, an employee of Hercules Transport, Inc., was attempting to offload his tanker truck containing anhydrous ammonia at Cropmate Company, an anhydrous ammonia storage facility in Shriever, Louisiana. His attempt was unsuccessful, however, because the pump on the tank truck malfunctioned. Day contacted the dispatcher at Hercules who informed Day that a second truck was en route to the storage facility and that he should use the pump on the second truck to offload the chemical. When the second truck arrived, its driver offloaded her load of anhydrous ammonia. Day then connected a twenty-foot hose from his truck to the pump on the second truck. However, Day attached the hose to the discharge side of the pump, rather than to the suction side of the pump. Consequently, the chemical was not drawn into the pump and could not be pumped out of Day's truck. Because the anhydrous ammonia was in a pressurized state, it was necessary for Day to remove the pressure within the line before he could disconnect the hose and reconnect it properly. After an unsuccessful attempt to bleed the line into a drum of water at the storage facility, Day decided to bleed the line by utilizing a special "bleeder valve" located on the tank truck, and approximately three gallons of anhydrous ammonia were vented into the air through the bleeder valve.

Shortly after this release, Kathy Haydel walked out of her house, which was located approximately four hundred feet from the storage facility, to put out the garbage. As she walked down the driveway, she noticed the smell of ammonia and then noticed a white cloud. Upon reentering her house, she evacuated her two daughters, Nikki and Michelle.

On March 19, 1991, Kathy Haydel, individually and on behalf of her minor daughters, Nikki Richard and Michelle Haydel, [94 1246 La.App. 1 Cir. 3] filed the instant action for damages. 1 Named as defendants in the action were: Hercules Transport, Inc. (Hercules) and its insurer, LPG Risk Retention Group Insurance Company (LPG); Tri-State Delta Chemicals, Inc. d/b/a Cropmate Company (Cropmate) and its insurer, Reliance Insurance Company (Reliance); and O'Neal Gas, Inc. (O'Neal).

Shortly before trial of this matter, the trial court granted a motion for summary judgment filed by Cropmate and dismissed plaintiffs' claims against it. Plaintiffs have appealed that judgment, which is the subject of a companion appeal entitled Haydel v. Hercules Transport, Inc., Liquified Petroleum Gas Insurance Company, LPG Risk & Retention Group, The Cropmate Company, and Conagra Fertilizer Company, 94-0016, (La.App. 1st Cir. 4/7/95); 654 So.2d 408.

The case proceeded to trial by jury on the merits against Hercules and LPG from September 20, 1993, to September 29, 1993. On October 29, 1993, the trial judge rendered judgment on the jury verdict, assessing Hercules with 90% of the fault and Kathy Haydel with 10% of the fault. Kathy Haydel was awarded $19,694.61 for past medical expenses, $2,400.00 for past lost wages, and $25,000.00 for past general damages. 2 Nikki Richard was awarded $2,500.00 for the loss of service, society, and support of her mother. 3 Michelle Haydel was awarded $5,000.00 for the loss of service, society, and support of her mother. 4 Punitive damages were not awarded.

[94 1246 La.App. 1 Cir. 4] From this judgment, plaintiffs appealed, assigning the following specifications of error:

1. Plaintiffs are entitled to explore in voir dire any prejudice that potential jurors may harbor regarding large damage verdicts, and it was error for the trial court to preclude plaintiffs from so questioning potential jurors.

2. Hercules' opening statement contained an admission of liability contrary to the pretrial order, and the trial court erred in denying plaintiffs a supplemental opening statement to inform the jury that Hercules was admitting liability for the first time at trial.

3. Hercules admitted liability in the opening statement, and the trial court erred in denying plaintiffs a directed verdict on the issue of liability.

4. Hercules was engaged in an ultrahazardous activity at the time of plaintiffs' injuries, and the trial court erred in denying plaintiffs a directed verdict of absolute liability on the part of Hercules.

5. Persons who use or handle inherently dangerous substances are held to an extraordinary degree of care, and the trial court erred in refusing to so charge the jury.

6. Although Nikki Richard suffered no physical injury from the ammonia exposure, she was in the zone of danger, her fears were reasonable, and the jury erred in finding that Hercules' negligence did not cause her injury and in failing to award her damages for mental suffering.

7. There was uncontroverted testimony that Michelle Haydel suffered symptomology after the ammonia exposure that she did not suffer prior to the exposure, and the jury erred in finding that her condition was not caused by the ammonia exposure.

8. There was no testimony from which a reasonable person could conclude that Kathy Haydel purposely placed herself in a position of danger, and the jury erred in finding her 10% at fault for her injuries.

[94 1246 La.App. 1 Cir. 5] 9. The jury erred in arbitrarily refusing to award Kathy Haydel any sum for future medical expenses.

10. The jury erred in awarding Kathy Haydel the sum of $2,400.00 for past loss of income despite uncontroverted testimony that prior to the exposure she was capable of earning $18,000.00 per year.

11. The jury erred in failing to make an award to Kathy Haydel for future loss of income or impairment of earning capacity.

12. The jury's award of $25,000.00 for past general damages was so woefully inadequate as to shock the conscience and was an error of law.

13. The jury erred in failing to make an award for future general damages considering uncontroverted testimony that she was still under treatment at the time of trial.

14. Considering the admission by Hercules that it purposely released a toxic chemical into the air without prior warning to nearby residents, and considering the admission by Hercules that it was unaware of the various propensities of the toxic chemical it transported, it was an error of law for the jury to refuse to make an award of punitive damages.

15. The trial court should exercise reasonable control over the mode and order of interrogating witnesses, and the trial court erred in failing to control repeated interruptions and comments upon the evidence by defense counsel.

16. The trial court erred in denying plaintiffs' motion for JNOV.

Hercules and LPG answered the appeal, assigning as error the trial court's denial of its peremptory exception pleading the objection of no cause of action and/or no right of action.

PREEMPTION

Hercules and LPG contend that the provisions of the Hazardous Materials Transportation Act (HMTA), 49 U.S.C. § 5101 et seq., and specifically 49 U.S.C. § 5125(b) and 49 U.S.C. § 5123, expressly preempt plaintiffs' state law cause of action for exemplary damages under LSA-C.C. art. 2315.3.

[94 1246 La.App. 1 Cir. 6] The preemption doctrine has its roots in the Supremacy Clause of the United States Constitution (Article VI, clause 2), which invalidates state laws that "interfere with, or are contrary to" federal law. See Hillsborough County, Florida v. Automated Medical Laboratories, Inc., 471 U.S. 707, 712, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714 (1985); Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2129, 68 L.Ed.2d 576 (1981). Basic to this constitutional command is the notion that all state provisions which conflict with federal law are without effect. See Maryland v. Louisiana, 451 U.S. at 747, 101 S.Ct. at 2129, 68 L.Ed.2d 576.

Preemption may be either express or implied and is compelled whether Congress's command is explicitly stated in the statute's language or implicitly contained in its structure and purpose. Fidelity Federal Savings and Loan Association v. de la Cuesta, 458 U.S. 141, 152-53, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982); Jones v. Rath Packing Company, 430 U.S. 519, 525, 97 S.Ct 1305, 1309, 51 L.Ed.2d 604 (1977); Massachusetts Medical Society v. Dukakis, 815 F.2d 790, 791 (1st Cir.1987), cert. denied, 484 U.S. 896, 108 S.Ct. 229, 98 L.Ed.2d 188 (1987). Consideration under the Supremacy Clause begins with the basic assumption that Congress did not intend to displace state law. But, as the Supreme Court pointed out in Rice v. Santa Fe Elevator Corporation, 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947):

Such a purpose [to displace state law] may be evidenced in several ways. The scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it. Or the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject. Likewise, the object sought to be obtained by the federal law and the character of obligations...

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