Bell v. Jet Wheel Blast, Div. of Ervin Industries

• Decision Date: 14 January 1985
• Docket Number: No. 83-CQ-2158,83-CQ-2158
• Citation: 462 So.2d 166
• Parties: Sam BELL v. JET WHEEL BLAST, DIVISION OF ERVIN INDUSTRIES. 462 So.2d 166, 1985 A.M.C. 1581
• Court: Louisiana Supreme Court

Page 166

462 So.2d 166

Sam BELL v. JET WHEEL BLAST, DIVISION OF ERVIN INDUSTRIES.

No. 83-CQ-2158.

462 So.2d 166, 1985 A.M.C. 1581

Supreme Court of Louisiana.

Jan. 14, 1985.

Rehearing Denied Feb. 21, 1985.

Orlando G. Bendana, Wayne H. Carlton, Jr., Bendana & Carlton, New Orleans, for plaintiff-appellee.

Kirstyne H. McCullough, Donald O. Collins, Jones, Walker, Waechter, Poitevent, Carrier & Denegre, New Orleans, for defendant-appellant.

Harriet R. Campbell Young, New Orleans, for intervenor-appellee.

DENNIS, Justice.

We are called upon to decide whether contributory negligence or comparative fault applies in strict products liability cases. This question of law was certified to us by the United States Court of Appeals for the Fifth Circuit, 717 F.2d 181 (1983), granting rehearing 709 F.2d 6 (1983), pursuant to La.R.S. 13:72.1 (1972) and Rule 12, Rules of the Supreme Court of Louisiana (1973). We accepted certification, 448 So.2d 109 (La.1984). After considering the oral and written arguments of the parties, we hold that contributory negligence does not apply in strict products liability cases, and that the principle of comparative fault may be applied in some products cases according to precepts formulated by analogy from the principle of Civil Code article 2323 and former article 2323, and other relevant social values, ethical principles and empirical data.

The court of appeals' statement of the facts of the case is as follows:

Sam Bell, the appellee, brought suit to recover injuries occasioned while employed at Vulcan Foundry. He was injured while working on a large shot blast machine used to clear large metal casings. This machine was manufactured and installed by appellant Jet Wheel Blast. Bell's injury occurred when his hand got caught in the chain and sprocket drive of the conveyor system of the machine.

The case was submitted to the jury on separate theories of strict liability and negligence on the part of appellant manufacturer-installer, Jet Wheel Blast. In response to interrogatories, the jury found that the product, the shot blast machine, was defective, that the defect was a proximate cause of the injury, and that Bell did not assume the risk of the injury. Under the negligence theory the jury found that Jet Wheel Blast was negligent, that the negligence was a proximate cause of the injury, but that Bell was guilty of contributory negligence.

Jet Wheel Blast contended that the finding of contributory negligence exonerated it from liability because the finding constituted "victim-fault" under Louisiana law. The district court, however, awarded the full $150,000 damages to Bell on the strict liability claim. This panel in its original decision on appeal affirmed the judgment of the district court. 709 F.2d 6 (5th Cir.1983).

717 F.2d at 182 (5th Cir.1983).

The court of appeals vacated its original decision and certified this question:

"Does the Louisiana Civil Code permit the defense known as contributory negligence to be advanced to defeat or mitigate a claim of strict liability based upon a defective product, the theory of liability commonly known as 'product liability?' "

I. Strict Products Liability Under Civil Code Article 2315

Articles 2315-24 of the Louisiana Civil Code compromise the code's entire chapter of legal principles regulating offenses and quasi-offenses.

The underlying principle is provided by Article 2315: "Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. * * * " The remaining article describe some of the circumstances under which a person may be held liable for his act or that of a person or thing for which he is responsible. DeBattista v. Argonaut-Southwest Ins. Co., 403 So.2d 26 (La.1981); Loescher v. Parr, 324 So.2d 441 (La.1975). For the most part, however, because of the difficulty in finding fault for all times and purposes, the Code has left the function of defining fault in the hands of the courts. DeBattista v. Argonaut-Southwest Ins. Co., supra; Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133 (1971); See 2 Colin et Capitant, Cours elementaire de droit civil francois (8c Ed.1935) Sec. 190.

In Weber v. Fidelity & Casualty Insurance Company of New York, 259 La. 599, 250 So.2d 754 (1971) this court recognized a form of fault giving rise to a cause of action under civil code article 2315 based on strict products liability. In defining fault for this purpose we held:

A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in design, composition, or manufacture of the article, if the injury might reasonably have been anticipated. However, the plaintiff claiming injury has the burden of proving that the product was defective, i.e., unreasonably dangerous to normal use, and that the plaintiff's injuries were caused by reason of the defect.

* * *

If the product is proven defective by reason of its hazard to normal use, the plaintiff need not prove any particular negligence by the maker in its manufacture or processing; for the manufacturer is presumed to know the vices in the things he makes, whether or not he has actual knowledge of them. Id. 250 So.2d at 755-756.

Under the terms of this strict products liability theory, in order to recover from a manufacturer or supplier the plaintiff must prove (1) that the injury or damage resulted from the condition of the product; (2) that the condition made the product unreasonably dangerous to normal use; and (3) that the condition existed at the time the product left the control of the manufacturer or supplier. Hebert v. Brazzel, 403 So.2d 1242 (La.1981); DeBattista v. Argonaut-Southwest Ins. Co., 403 So.2d 26 (La.1981); Hunt v. City Stores, 387 So.2d 585 (La.1980); Chappuis v. Sears, Roebuck & Co., 358 So.2d 926 (La.1978); Weber v. Fidelity & Casualty Ins. Co. of New York, 259 La. 599, 250 So.2d 754 (1971).

Although a strict products liability action was recognized over thirteen years ago by this court, the question of whether contributory negligence or comparative fault is applicable in such a case has not been definitively answered by us. In the absence of any guidance from this court, our intermediate courts and panels of the federal court of appeals have reached varying conclusions. See Lovell v. Earl Grissmer Co., 422 So.2d 1344, 1352 (La.App. 1st Cir.1982), writ denied, 427 So.2d 871 (La.1983) (contributory negligence bars recovery in strict product liability cases); Tri-State Ins. Co. v. Fidelity & Casualty Ins. Co., 364 So.2d 657, 661 (La.App. 2d Cir.1978), writ denied, 365 So.2d 248 (La.1978) (victim fault, measured by elements of assumption of risk, bars recovery in a products liability case); Lewis v. Timco, Inc., 716 F.2d 1425 (5th Cir.1983) (on rehearing en banc) (recognition of comparative fault in maritime products liability will not "frustrate" a dedicated state policy); see also Lewis v. Timco, Inc., 697 F.2d 1252 (5th Cir.1983) and 736 F.2d 163 (5th Cir.1984); LeBouef v. Goodyear Tire & Rubber Co., 623 F.2d 985, 991 (5th Cir.1980) (contributory negligence is not a defense to a strict products liability claim under Louisiana law); Khoder v. AMF, Inc., 539 F.2d 1078, 1079-81 (5th Cir.1976) (a jury charge which included contributory negligence as a defense to product liability was improper under Louisiana law).

II. Statutes Pertaining to Contributory and Comparative Negligence

Article 2303 of the Civil of Code of 1825 was one of the first mandates in legal history establishing for general use what is now known as the doctrine of comparative negligence. Malone, Comparative Negligence--Louisiana's Forgotten Heritage, 6 La.L.Rev. 125, 129 (1945). It had no counterpart in the Code Napoleon or in the earlier Louisiana Civil Code of 1808. It read as follows:

"The damage caused is not always estimated at the exact value of the thing destroyed or injured; it may be reduced according to circumstances, if the owner of the thing has exposed it imprudently."

The provision was readopted as article 2323 of the present Civil Code of 1870 and persisted unmodified until its amendment by Act No. 431 of 1979.

Paradoxically, this court ignored the provision and let it fall into oblivion, while relying in negligence cases on common law precedents to apply the doctrine of contributory negligence, for which there was no codal authority. Fleytas v. Pontchartrain Railroad Co., 18 La. 339 (1841); Malone, supra; Comment, 11 Tul.L.Rev. 112 (1935). Professor Malone has noted many of the factors which probably were responsible for these developments: The first decision that clearly committed this court to contributory negligence was decided in 1841. Fleytas, supra. At that time there was no organized body of civilian doctrine on the issue of comparative fault. It was not until much later that comparative fault became openly acknowledged as the universal attitude in civil law jurisdictions. Since article 2323 had no counterpart in the Code Napoleon, it was not expounded by the French commentators. Moreover, because the article was elliptically couched in terms of damages rather than substantive principle, a sharp and arresting focus was not brought to bear upon it. In contrast to the absence of definitive French authority to uphold comparative fault, there was a comprehensive body of Anglo-American cases and texts supporting contributory negligence doctrine. Contributory negligence was perpetuated because it made the judging process seem simpler and more impersonal and at one time afforded a ready means for control of juries. At the same time it enabled the courts to assume the role of conservative policymakers without betraying even to themselves their role of judicial lawmaking. Malone, supra p. 133-140.

In 1979 the legislature reintroduced the concept of comparative negligence by rewriting article...