Joseph v. Broussard Rice Mill, Inc.

• Decision Date: 30 October 2000
• Docket Number: No. 00-C-0628.,00-C-0628.
• Citation: 772 So.2d 94
• Parties: Floyd JOSEPH v. BROUSSARD RICE MILL, INC., et al.
• Court: Louisiana Supreme Court

772 So.2d 94

Floyd JOSEPH v. BROUSSARD RICE MILL, INC., et al.

No. 00-C-0628.

Supreme Court of Louisiana.

October 30, 2000.

Andrew R. Johnson, IV, Plauche, Smith & Nieset, Lake Charles, Counsel for Applicant.

Raleigh Newman, Samuel Bryan Gabb, Lake Charles, Counsel for Respondent.

KNOLL, J.

At issue before us in this personal injury case is whether the lower courts properly applied the law of judgment notwithstanding the verdict (JNOV) to the jury's finding of fault, its apportionment of that fault, and award of damages.

FACTS

Floyd Joseph (Joseph), an employee of Lake Charles Stevedores (Stevedores), worked as a longshoreman at the Port of Lake Charles (Port). Joseph was injured on November 3, 1994, working as a utility man port-side when numerous 110 pound sacks of rice fell on him in a warehouse. The sacks of rice came from the Broussard Rice Mill (Broussard) in Mermentau, Louisiana.

It is undisputed that Broussard originally filled the polyweave sacks with 110 pounds of rice and stacked them on pallets; there were 36 to 42 sacks of rice on each pallet, six sacks to a layer. To lessen the chance of having rice sacks fall, Broussard utilized a longstanding method of crosstying the rice sacks on each pallet¹ and employed an automatic gluing mechanism to inject glue between the layers of rice sacks.

Broussard shipped the stacked rice sacks on pallets from Mermentau to Lake Charles on flatbed trucks. When the rice left Mermentau it was stacked one pallet high, and, as additional security, the pallets were strapped to the bed of the truck. As the rice arrived at the Port, Stevedores hired warehousemen to off-load the rice pallets from the trucks and stack the pallets three-high in the warehouse.

On the day of the accident, rice sacks had fallen in the warehouse as longshoremen were bringing the rice pallets on forklifts to a waiting cargo ship. Stevedores hired Joseph to pick up the rice sacks that had fallen from the stacked pallets in the warehouse. As Joseph was picking up these fallen sacks, two pallets of rice suddenly collapsed, completely covering him as he stood with his back to the stacked pallets. Curtis Shuff, Jr. (Shuff) was in the warehouse at the same time moving stacked pallets of rice by forklift from the warehouse to a loading area alongside a cargo ship. Shuff came to Joseph's aid, quickly removing the sacks of rice from atop Joseph. As described by Shuff, Joseph was lying face down on the concrete floor; he was pale and, except for moans, was unresponsive. Joseph was taken to the hospital where he was treated and released. Within days of the accident, Joseph felt worse and began treatment with various orthopedic specialists. Subsequently, Joseph underwent two surgeries, one to repair a hernia and another to repair several cervical discs at two levels. Later, it was determined that Joseph's bilevel cervical fusions had failed and he was further diagnosed as having thoracic outlet syndrome which may ultimately require surgical intervention. At the time of trial, Joseph had not returned to work and was suffering lower back pain as well as pain in the right knee.

Joseph filed suit against Broussard.² After Broussard was placed into bankruptcy, its insurer, Mutual Service Insurance Co. (MSI), was substituted as a party defendant. MSI specifically alleged Joseph's comparative fault, as well as fault on the part of the Stevedores, an unnamed defendant.³ Stevedores and its Longshore/Harborworker's insurer, Signal Mutual Indemnity Associated, Ltd. (Signal Mutual), intervened to recover medical and indemnity payments made to and on behalf of Joseph.

A jury returned a verdict finding Joseph, Broussard, and the Stevedores at fault and awarding damages totaling $482,760.⁴ It allocated fault 13.6% to Broussard, 72.4% to Stevedores, and 14% to Joseph. In accordance with the allocation of fault, judgment was rendered in Joseph's favor against MSI for $65,655.36. The trial court also recognized the intervention of the Stevedores and Signal Mutual and awarded reimbursement of $112,136.32.

On Joseph's motion for judgment notwithstanding the verdict,⁵ the trial judge absolved the Stevedores and Joseph of fault, and reallocated 100% fault to Broussard. The trial judge also increased the jury's damage award from $482,760 to $1,011,743.⁶

The Court of Appeal, Third Circuit, affirmed the trial judge's JNOV on the finding and allocation of fault, but reinstated the jury's damage award except for the awards for physical and mental pain and suffering, loss of enjoyment of life, and permanent disability. Joseph v. Broussard Rice Mill, 99-1210, slip op. at 6 (La. App. 3 Cir. 2/2/00). Utilizing the manifest error standard of review, the appellate court raised these latter awards from a total of $123,275 to $225,000, finding the jury award abusively low.

We granted the writ application of MSI to consider the propriety of the lower courts' use of the JNOV procedure. Joseph v. Broussard Rice Mill, Inc., 00-0628 (La.5/5/2000), 760 So.2d 1185. For reasons which follow, we affirm the JNOV as it pertains to Joseph's assessment of fault and as to the appellate court's treatment of the damage award; however, we reverse the JNOV as to Stevedores's fault.

JUDGMENT NOTWITHSTANDING THE VERDICT

LA.CODE CIV. PROC. art. 1811 controls the use of JNOV. Although the article does not specify the grounds on which a trial judge may grant a JNOV, in Scott v. Hospital Serv. Dist. No. 1, 496 So.2d 270 (La.1986), we set forth the criteria used in determining when a JNOV is proper. As enunciated in Scott, a JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. The motion should be denied if there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. Scott, 496 So.2d at 274. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. Anderson v. New Orleans Pub. Serv., Inc., 583 So.2d 829, 832 (La.1991). This rigorous standard is based upon the principle that "[w]hen there is a jury, the jury is the trier of fact." Scott, 496 So.2d at 273; Jinks v. Wright, 520 So.2d 792, 794 (La.App. 3 Cir. 1987).

In reviewing a JNOV, the appellate court must first determine if the trial judge erred in granting the JNOV. This is done by using the aforementioned criteria just as the trial judge does in deciding whether to grant the motion or not, i.e. do the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict? If the answer to that question is in the affirmative, then the trial judge was correct in granting the motion. If, however, reasonable persons in the exercise of impartial judgment might reach a different conclusion, then it was error to grant the motion and the jury verdict should be reinstated. Anderson, 583 So.2d at 832.

Joseph's comparative fault as an employee

Broussard contends that the lower courts erred in reversing the jury's allocation of 14% fault to Joseph. It argues that Joseph should have noticed the problem if it was obvious that the lot of rice shipped from Broussard was improperly crosstied. It further maintains that Joseph turned his back to these stacks of rice even though it presented an obvious danger and failed to notify the Stevedores that the rice sacks were falling.

This Court has clearly stated that the absolute defenses of assumption of the risk and contributory negligence are no longer viable as they have been subsumed by comparative fault principles. Murray v. Ramada Inns, Inc., 521 So.2d 1123 (La.1988); see also Pitre v. Louisiana Tech Univ., 95-1466, 95-1487 (La.5/10/96), 673 So.2d 585, cert. denied, 519 U.S. 1007, 117 S.Ct. 509, 136 L.Ed.2d 399 (1996). Rather, where an employee takes actions pursuant to the discharge of his employment duties in the face of a known risk, which actions are reasonable in relation to those duties, then the employee is not comparatively negligent. Feurtado v. Zapata Gulf Marine Corp., 99-1510 (La.App. 4 Cir. 1/12/00), 751 So.2d 379, 383; see also Bergeron v. Blake Drilling & Workover, 599 So.2d 827, 843-44 (La.App. 1 Cir.),

writ denied,

605 So.2d 1117, 1119 (La.1992). Factors considered in the determination of what is reasonable include the availability and practicability of other options. Richard v. St. Paul Fire & Marine Ins., 94-2112 (La.App. 1 Cir. 6/23/95), 657 So.2d 1087, 1091. Utilizing this jurisprudence in the present case, it was incumbent upon Broussard to establish by a preponderance of the evidence that Joseph was comparatively at fault. See Terro v. Casualty Reciprocal Exch., 93-593 (La.App. 3 Cir. 2/2/94), 631 So.2d 651, 654, writ denied, 94-522 (La.4/22/94), 637 So.2d 157; Smith v. Jack Dyer & Associates, 633 So.2d 694 (La.App. 1 Cir. 1993).

It is clear that Joseph was injured while he was performing the task that his employer assigned, namely picking up fallen rice sacks at the direction of Stevedores. In order to accomplish this task, the evidence was unrefuted that Joseph had to position himself between the stacked rice pallets and the fallen sacks. The record is equally clear that although Joseph may have known that his job duties were dangerous, his only option was to refuse to perform the task he was assigned. On the other hand, Broussard presented no evidence that shows that Joseph was performing his work assignment...