Fonseca v. Marlin Marine Corp.

• Court: Court of Appeal of Louisiana
• Writing for the Court: WATKINS
• Citation: Fonseca v. Marlin Marine Corp., 385 So.2d 341 (La. App. 1980)
• Decision Date: 31 March 1980
• Docket Number: No. 13158,13158
• Parties: Claude A. FONSECA v. MARLIN MARINE CORPORATION, Alfred Cenac, Jr., and The Home Indemnity Company.

Page 341

385 So.2d 341

Claude A. FONSECA v. MARLIN MARINE CORPORATION, Alfred Cenac, Jr., and The Home Indemnity Company.

No. 13158.

Court of Appeal of Louisiana, First Circuit.

March 31, 1980.

Rehearing Denied June 9, 1980.

J. Nelson Mayer, III, New Orleans, for plaintiff and appellant.

Philip McMahon, Houma, for defendant and appellee.

Before EDWARDS, LEAR and WATKINS, JJ.

WATKINS, Judge.

This is an action to recover damages in tort, or in the alternative, workmen's compensation benefits. The trial court rendered judgment for defendants-appellees, dismissing both causes of action. We affirm.

Although other defendants were at first named, the only parties defendant at the time the case was brought to trial were Marlin Marine Corporation, its workmen's compensation insurer Home Indemnity Company, and Alfred Cenac, Jr.

The testimony reveals that Cenac and some of his friends started building a barn to stable horses. The construction was rather defective; most notably, the pilings leaned. Finally, Cenac, who was president of Marlin Marine, either in his individual capacity or as president of Marlin Marine, hired Claude A. Fonseca, a carpenter, and two of his men, Roger D. Songe and Sidney Bouquet, to finish building the barn. Joists for the ceiling had been nailed in place by the first set of builders. Laid across the joists were cypress planks, which were not nailed down. The weight of the testimony indicates that these planks were put in place by the first set of builders, although the testimony at one place seems to indicate that Fonseca's set of builders put them in place. In any event, while Fonseca was standing on the platform or scaffold composed of the unnailed planks, he stepped on the loose end of one that did not extend to the next joist. The plank seesawed, and Fonseca fell to the platform, apparently injuring his back. The present suit is based upon this alleged injury.

Appellant Fonseca's brief on appeal appears to be restricted solely to the cause of action in tort. However, we will also consider the cause of action for workmen's compensation benefits.

Plaintiff contends that defendants (whoever are the defendants liable) are held strictly liable for defects in the barn, under the authority of LSA-C.C. art. 2322, which reads as follows:

"The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction."

Strict liability, without the necessity of showing negligence, was found to be imposed upon the owner of a defective structure in Olsen v. Shell Oil Co., 365 So.2d 1285 (La.Sup.Ct. 1979) and Green v. Billa, 86 So.2d 578 (La.App.Orl. 1965).

However, art. 2322 does not apply, and strict liability is not imposed, if a building is in the process of being constructed. In Temple v. Gen. Ins. Co. of America, 306 So.2d 915 (La.App. 1st Cir. 1975), writ refused 310 So.2d 643 (La. 1975), a brickmason's helper employed by a subcontractor who was reconstructing a brick wall on an apartment owned by defendant French Provinces Corporation, which had insurance with defendant insurer, was struck by bricks when the wall collapsed. The Court held that liability under C.C. art. 2322 does not exist if the building is in the process of being constructed or repaired. In the present factual situation, construction of the barn was being completed,...