Dunaway v. Rester Refrigeration Service, Inc.

• Decision Date: 22 February 1983
• Docket Number: No. 82,82
• Citation: 428 So.2d 1064
• Parties: Lige DUNAWAY, Jr. v. RESTER REFRIGERATION SERVICE, INC., et al. CA 0405.
• Court: Court of Appeal of Louisiana — District of US

Page 1064

428 So.2d 1064

Lige DUNAWAY, Jr. v. RESTER REFRIGERATION SERVICE, INC., et al.

No. 82 CA 0405.

Court of Appeal of Louisiana First Circuit.

Feb. 22, 1983.

Rehearing Denied April 6, 1983.

John M. O'Quinn, Houston, Tex., Vincent J. DeSalvo, George & George, Baton Rouge, for plaintiff-appellee Lige Dunaway, Jr.

Peter T. Dazzio, Watson, Blanche, Wilson & Posner, Baton Rouge, for defendant Rester Refrigeration Service, Inc.

John S. White, Jr., Kennon, White & Odom, Baton Rouge, for defendant-appellant Hearn Const. Co., Inc.

Before COVINGTON, LANIER and ALFORD, JJ.

LANIER, Judge.

This is a suit for damages in tort pursuant to La.C.C. art. 2315 by Lige Dunaway, Jr. against Rester Refrigeration Service, Inc. (Rester) and Hearn Construction Co., Inc. (Hearn). When Dunaway completed presenting his case at the trial, Rester and Hearn moved for directed verdicts. The trial judge granted Rester's motion, but denied Hearn's. The jury rendered special verdicts finding that Hearn was negligent, that Dunaway was not contributorily negligent, that Dunaway "was acting under circumstances of emergency or peril to himself or others such as would render his conduct reasonable under the circumstances", that Dunaway did not assume the risk, and gave a lump sum award for damages of $650,000. The trial court rendered judgment in accordance with the jury's verdicts. This suspensive appeal followed.

I. FACTS

On September 20, 1978, Hearn entered into a contract with the U.S. Department of Health, Education and Welfare for the repair and renovation of three buildings at the U.S. Public Health Service Hospital (Hospital) at Carville in Iberville Parish, Louisiana. In October of 1978, Hearn subcontracted with Rester to do plumbing work in connection with the removal of an old boiler and the installation of a new boiler in building No. 1 on the Hospital premises. Access to the boiler in building No. 1 was through double doors. On either side of the doors were concrete walls approximately three feet wide. The boiler to be removed by Rester was too large to fit through the double doors. Hearn retained the obligation to provide ingress and egress for the old and new boilers. On April 23, 1979, Hearn removed the door jams, transoms and windows at the double doors of building No. 1 to provide the ingress and egress. When Hearn made this opening in the building, it left the steel reinforcing bars (rebars) in the floor and side wall because the building was to be reconstructed when the boiler work was completed. ¹

Dunaway was employed by the Hospital as an operating engineer responsible for supervision of the water, power and sewerage disposal plants and did shift work. On April 24, 1979, Dunaway was walking from the inside of building No. 1 to the outside through the opening made by Hearn when he tripped on one of the rebars in the floor, fell and injured his left elbow and arm.

II. LIABILITY OF HEARN

It is the duty of one doing construction work to properly label, mark or barricade places in the construction site that present an unreasonable risk of harm to persons using the area. Sullivan v. Gulf States Utilities Company, 382 So.2d 184 (La.App. 1st Cir.1980), writ denied 384 So.2d 447 (La.1980).

William Smith, the foreman for Hearn at this construction site, specifically testified that "... anytime that you have rebars protruding up, you always put up some kind of barricade ..." or a colored ribbon. He further testified that this was done for safety purposes because someone might not see the rebars. The warning barricade or ribbon should be placed after the rebars are exposed. Smith did not recall what type of warning devices were utilized at this construction site, but that some should have been present.

Earnest Swillie, the general superintendent for Hearn at the construction site, testified that Smith's statement about the Hearn policy on tapes and barricades was correct, and that there should have been and were warning devices at the accident site. Swillie observed a two strand black and yellow safety ribbon tape around the construction area on April 23, 1979. There were no barricades or ribbons at the specific site of the accident.

Dunaway testified that there were no barriers, ropes or warning signs around the area or place where the accident occurred. Mitchell Magee testified that he was a Rester employee working in the vicinity of the accident site and that there were no warning devices in place. Magee also testified, without objection, that a "horse" and ribbon were put up after the Dunaway accident. John E. Anderson testified that he also was a Rester employee working in the construction area on the day of the accident and that he observed no warning ribbons.

The jury apparently concluded that the construction work done by Hearn created an unreasonable risk of harm to Dunaway and that Hearn failed to properly mark the construction site with appropriate warning devices. Based on the evidence above set forth, we cannot say that these findings of fact by the jury were clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

III. CONTRIBUTORY NEGLIGENCE OF DUNAWAY

A pedestrian has a duty to see that which should have been seen. He is not required to look for hidden dangers, but he is bound to observe his course to see if his pathway is clear. A pedestrian is held to have seen those obstructions in his pathway which would be discovered by a reasonably prudent person exercising ordinary care under the circumstances. Whether the obstruction is an obvious hazard which a pedestrian should observe and avoid, or whether the obstruction is a hazard which a pedestrian exercising due care would not see unless posted with proper warning devices, depends upon all the surrounding circumstances. Factors to consider include the time of day, the nature of the pathway, distractions to the attention, familiarity with the obstruction, and the size, situation and color of the obstruction. Soileau v. South Central Bell Telephone Company, 406 So.2d 182 (La.1981); Artigue v. South Central Bell Telephone Company, 390 So.2d 211 (La.App. 3rd Cir.1980), writ denied 396 So.2d 917 (La.1981).

Dunaway testified that he was working in the area of building No. 1 on April 23, 1979, when the opening in the wall was made by Hearn. On April 24, 1979, Dunaway went to work at 8:00 A.M. and again was in building No. 1. Each day at 10:00 A.M. and 2:00 P.M., the boilers in building No. 1 were "blown down" (steam was discharged) to get foreign matter out of the water and "keep chemicals down in your boiler." The hot steam was discharged in a steam pit on the outside of building No. 1. Dunaway testified that just prior to 10:00 A.M. on April 24, 1979, he saw two workmen in the area of the steam pit and felt compelled to warn them that a boiler "blown down" was about to occur so they could leave the area to avoid injury. He walked at a fast pace (at one point in his testimony he said he was running) to the opening in the wall to warn the workmen. A Rester truck was partially obstructing the opening. Dunaway's path to the opening was around a boiler which partially blocked his view of the opening for an undetermined distance. Dunaway tripped on a rebar protruding ten to twelve inches from the floor and fell and injured himself. He did not see the rebar before he tripped on it, he did not know it was there before the accident, and he only saw it after the accident. Dunaway further testified that he knew that the wall had been removed.

Mitchell Magee testified that he, Grant Haley, and John Anderson were working for Rester on April 24, 1979, taking bricks off of the old boiler in building No. 1 and putting them in a Rester truck which was parked at the opening in the building. The rebars protruding from the floor were six to eight inches high and were bent over. The Rester truck was located in the doorway approximately ten to twelve feet from the steam pit. Magee caught Dunaway as he was falling, but Dunaway's elbow hit the side of the wall. Dunaway called to the men and either said that there was about to be a "blow down" or that coffee was ready. Magee testified that he could see the rebars in the doorway from twenty feet away on the inside of the boiler room.

John E. Anderson testified that he was working with Haley and Magee taking bricks from the old boiler and putting them in the truck. Magee was located six to eight feet from the steam pit when Dunaway fell. The rebars were protruding six to eight inches from the floor. Dunaway was walking toward the group and said coffee was ready when he fell.

The jury verdict shows that it accepted the version of the accident espoused by Dunaway, that Dunaway reasonably believed that the workmen outside the building were in danger, that he was not contributorily negligent and he did not assume the risk of injury. The finder of fact, be it judge or jury, should assess the credibility of witnesses to determine the most credible and realistic evidence. Guidry v. Davis, 382 So.2d 250 (La.App. 3rd Cir.1980). In reaching conclusions, the finder of fact need not accept all of the testimony of any witness as being true or false and may believe and accept a part or parts of a witness' testimony and refuse to accept any part or parts thereof. Ewing and Salter, Inc. v. Gafner Automotive & Machine Inc., 392 So.2d 762 (La.App. 3rd Cir.1980), writ denied 396 So.2d 933 (La.1981); LeBlanc v. Cordaro, 378 So.2d 1027 (La.App. 2nd Cir.1979); Payne v. New Orleans Public Service, Inc., 374 So.2d 189 (La.App. 4th Cir.1979). Although we might have reached a different conclusion than the jury, based on all of the facts and circumstances, we cannot say that the jury's verdict was clearly wrong. Arceneaux v. Domingue, supra.

IV. QUANTUM

The jury in the instant case rendered a lump sum award for damages of $650,000. The proper method for analyzing the propriety of a trial court award of damages is set forth in Reck v. Stevens,...