Fonseca v. Marlin Marine Corp.

• Court: Louisiana Supreme Court
• Writing for the Court: DIXON; MARCUS; BLANCHE, J., dissents for reasons assigned by LEMMON; LEMMON; LEMMON; LEMMON; DENNIS; MARCUS; BLANCHE
• Citation: Fonseca v. Marlin Marine Corp., 410 So.2d 674 (La. 1981)
• Decision Date: 02 March 1981
• Docket Number: No. 80-C-1522,80-C-1522
• Parties: Claude A. FONSECA v. MARLIN MARINE CORPORATION, Alfred Cenac, Jr. and the Home Indemnity Company.

Page 674

410 So.2d 674

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

No. 80-C-1522.

Supreme Court of Louisiana.

March 2, 1981.

On Rehearing Sept. 8, 1981.

J. Nelson Mayer, III, Heisler, Wysocki & DeLaup, New Orleans, for plaintiff-applicant.

Rudolph D. Hargis, Jr., Philip J. McMahon, McMahon & McCollam, Houma, for defendants-respondents.

DIXON, Chief Justice.

The plaintiff in this suit seeks damages in tort, or, alternatively, workmen's compensation benefits, for injuries he incurred when he fell from the partially completed second floor of a barn.

A carpenter with about twenty-six years experience, plaintiff was hired by defendant Cenac to complete the construction of a barn which Cenac and some friends had begun. Cenac planned to use the barn to house some horses that he raised and sometimes showed as a hobby. At the time plaintiff undertook the job, the barn was approximately forty to sixty per cent complete. (Estimates varied from twenty-five to seventy-five per cent). Cenac agreed to pay the plaintiff and his two co-workers a set hourly wage at the end of each week of work; he also agreed to pay for the necessary materials. Plaintiff and his co-workers were paid with Marlin Marine checks; however, the checks were drawn on Cenac's personal account with the corporation, rather than on Marlin Marine's payroll or general checking account. No payroll deductions were withheld. Cenac was the president and majority stockholder of Marlin Marine and the corporation was indebted to him for funds he had loaned it in the past. The corporation established the personal account for Cenac so that he could draw against it for personal projects and thus reduce the corporation's debt to him.

On September 14, 1971, two or three days after starting the job, Fonseca was standing on some boards in the barn hoisting up lumber which he planned to use to complete the upper section of the barn. The boards were actually the floor boards of the upper level of the barn; they were cypress planks, about an inch thick, six to twelve inches wide, and about eight feet long. They were not nailed down, but rested on the ceiling joists to form a kind of scaffold. The boards and joists were in place when Fonseca undertook the job. While he was walking on one of the planks with a piece of lumber, plaintiff stepped on the unsupported end of a board which fell slightly short of the joist. The plank flipped up and he fell, injuring his back and legs. Plaintiff completed the barn, but suffered increasing pain in his back and had to stop working in December, 1971.

Plaintiff filed his original suit on September 12, 1972 and named numerous defendants. By the day of trial, February 14, 1977, the only defendants remaining were Marlin Marine Corporation, its workmen's compensation insurer, The Home Indemnity Company, and Alfred Cenac, Jr. In his petition plaintiff prayed for tort damages; alternatively, he sought workmen's compensation benefits for total and permanent disability. The trial court rendered judgment for the defendants and dismissed both causes of action. The Court of Appeal affirmed. 385 So.2d 341 (La.App. 1st Cir. 1980).

Plaintiff does not argue his workmen's compensation claim before this court. Nevertheless, ¹ we have examined the record to determine if he is entitled to recover any benefits under our workmen's compensation law. We agree with the lower courts that he is not covered.

The facts in this case support the conclusion that Fonseca had no employment relationship with Marlin Marine Corporation, either as employee or independent contractor. Therefore, he is not entitled to recover any workmen's compensation benefits from the corporation. The record supports the conclusion that Fonseca was engaged by Cenac, acting as an individual rather than as a corporate officer, to complete the construction of the barn. Fonseca's right to obtain workmen's compensation benefits from Cenac requires a determination that the barn was in some way connected with Mr. Cenac's trade, business or occupation. We recognize that an individual may have several different businesses, and we look to the facts of each particular case to determine whether or not construction, renovation or repair work is connected with the trade, business or occupation of the employer. Doss v. American Ventures, Inc., 261 La. 920, 261 So.2d 615 (1972). Generally, we have held that where the building being repaired or constructed houses the business or business equipment of the employer, or is leased by an employer engaged in the business of leasing or renting, the employee injured while working thereon is entitled to workmen's compensation benefits. ² On the other hand, where the employee is injured while working on property of the employer which has no connection with the employer's business, he is not covered by the workmen's compensation law. ³

The uncontradicted testimony in this case indicates that the barn was not connected with Cenac's business. Cenac did not plan to use the barn to store business equipment. He did not intend to lease the barn. He was building the barn simply to house some horses he raised as a personal hobby. Given these facts, Fonseca does not come within the coverage of the workmen's compensation act.

Since Fonseca is not covered by the provisions of our workmen's compensation law, he is entitled to bring an action against the defendants under general tort law. He presents three different grounds for recovery. First, he contends that the defendants breached their duty to provide him with a safe place to work. R.S. 23:13; C.C. 2315, 2316. ⁴ Secondly, he argues that they failed to construct a safe scaffold, as required by R.S. 40:1672. ⁵ Finally, he contends that the owner of the barn is liable to him in damages under C.C. 660 and 2322. ⁶ The Court of Appeal held that the plaintiff failed to prove any negligence on the part of the defendants. It added that, at any rate, plaintiff was contributorily negligent in working on a scaffold of unnailed planks and hence was precluded from recovering damages. Citing Temple v. General Insurance Co. of America, 306 So.2d 915 (La.App. 1st Cir. 1974), writ refused 310 So.2d 643 (La.1975), for the proposition that C.C. 2322 does not apply to buildings under construction, the court also held that the plaintiff could not recover under that article.

In Temple, the injured plaintiff was a brickmason's helper who was repairing the brick wall of a partially constructed apartment building. A storm had blown the bricks down and the subcontractor's workmen relaid them in rainy weather. The next day, while plaintiff was working on a scaffold, the wall collapsed and knocked him down. The trial court noted that the wall's collapse might have been attributable to the fact that the bricks had been laid in rainy weather. The Court of Appeal noted that control of the wall during the reconstruction process was with the subcontractor, rather than with the owner. It absolved the owner of liability because it thought that the plaintiff failed to prove that the wall's fall was due to a vice in construction or failure to repair.

The case at hand is distinguishable from Temple because the plaintiff's injury was clearly caused by a defect in the original construction of the floor or scaffold. Fonseca took the work over directly from Cenac, and neither Fonseca nor his helpers had anything to do with the placing of the planks. The record indicates that the planks were in place when Fonseca began working on the barn, and were not moved by him. Moreover, the record reveals that Cenac assured Mr. Fonseca that the work would be easy because the planks were already in place and had already been used by him and his friends.

Cenac is liable for Fonseca's injuries in two capacities-as owner of the barn and as custodian of the barn when the defective scaffolding was erected. An examination of cases and commentators indicates that there is disagreement as to whether C.C. 2317 ⁷ or C.C. 2322 should govern the imposition of liability in situations where a building or component falls and causes injury in the course of construction. Some French commentators believe that article 1384 of the Code Civil (the counterpart to our article 2317) should govern accidents occurring in the course of construction, and that the party having control or custody of the injuring thing should be held liable. Savatier, TraitEe de la responsabilitEe civile en droit fran cais, I,N. 419. Others, such as Mazeaud and Tunc, define a building as any construction, any assembly of material destined by man to make a work above the ground, and thus bring a building under construction within the purview of C.C. 2322 (French code article 1386). Stone, Tort Doctrine, 12 La.Civil Law Treatise, § 345 (1977). Belgium apparently allows an action against the owner of a partially constructed building on the theory that the "proprietaire" acquires the building as it is constructed from day to day, from level to level. Stone, supra.

Both C.C. 2317 and 2322 impose strict liability, or liability without fault, on certain individuals. Article 2317 holds an individual responsible for the damage caused by things in his custody. Loescher v. Parr, 324 So.2d 441 (La.1975). Article 2322 makes the owner of a building answerable in damages to any person who is injured-while rightfully inside or outside the building-in an accident caused by the owner's neglect to repair the building or from a vice (defect) in its original construction. Olsen v. Shell Oil Co., 365 So.2d 1285 (La.1978). Both articles base liability on status-ownership or custody-rather than on personal fault. The owner or custodian cannot escape liability by claiming that he was ignorant of the defect or that the defect was difficult to discover. He is absolved of liability only if he can prove that the harm was caused by the fault of the victim, the fault of a third...