Kasperski v. Patterson Services, Inc.

• Decision Date: 23 May 1979
• Docket Number: No. 6971,6971
• Citation: 371 So.2d 1254
• Parties: Rita Baltruks KASPERSKI et al., Plaintiffs-Appellees, v. PATTERSON SERVICES, INC. et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 1254

371 So.2d 1254

Rita Baltruks KASPERSKI et al., Plaintiffs-Appellees, v. PATTERSON SERVICES, INC. et al., Defendants-Appellants.

No. 6971.

Court of Appeal of Louisiana, Third Circuit.

May 23, 1979.

Writ Refused July 2, 1979.

Allen, Gooch & Bourgeois, Arthur I. Robison, Lafayette, for defendants-appellants.

Robert S. Cooper, Jr., Baton Rouge, Sue Fontenot, Abbeville, for plaintiff-appellee.

Harmon F. Roy, Lafayette, for third-party, defendant-appellee.

Before FORET, CUTRER and SWIFT, JJ.

FORET, Judge.

This is a suit for wrongful death brought by Rita Baltruks Kasperski, the widow of the decedent, Franciszek Kasperski, individually and on behalf of her minor daughter, Elizabeth Kasperski, and by the decedent's four major children, Robert, Henry, Stanislaus and Helen Kasperski. The only issue presented on appeal is whether the trial court erred in concluding that the record did not support defendants' assertion that this accident was caused solely by the fault of a third party and not through any negligence or fault of the defendants.

On the morning of June 7, 1977, the decedent was driving a 1974 pickup truck in a westerly direction on Louisiana State Highway 338 northeast of Abbeville, Louisiana. Proceeding in the opposite direction was a 1975 tractor-trailer rig driven by defendant, Ronald P. Romero, and owned by defendant, Patterson Services, Inc. Located on the bed of the trailer was a large piece of equipment known as a "spacer spool" weighing approximately 10,000 pounds and secured by two chains wrapped over the front and rear of this device. As these two vehicles were passing each other in a curve on the highway, the spool became dislodged from the trailer and struck the Kasperski vehicle, mashing the pickup truck and resulting in the instant death of the decedent.

Plaintiffs thereafter filed this action to recover for the decedent's wrongful death based upon the negligence of the defendants in loading, binding and securing the spool and under theories of strict liability provided by Louisiana law. Defendants denied any negligence on their part and asserted that the accident was solely the fault of a third party in producing a defective chain and that this defect was in no manner attributable to the defendant.

The trial court concluded that the accident and resulting death occurred because of one of two reasons ". . . first, defects in the chain, or secondly, an improper binding of the load." (Tr. 400-01) The court applied LSA-C.C. Art. 2317 ¹ to affix strict liability to the defendants for the damage caused by the defective item (the chain) within the custody and control of the defendants. The court found that the defendants failed to sustain their burden of proof to absolve them of liability in this instance. From this judgment, defendants now appeal.

In the leading case of Loescher v. Parr, 324 So.2d 441 (La.1975), Justice Tate, writing for the Louisiana Supreme Court, held that Art. 2317 provides for strict liability resulting from any damage caused by the defect existing in a thing under the custody of any individual. Justice Tate summarized the applicable principles of legal fault as follows:

"When harm results from the conduct or defect of a person or thing which creates an unreasonable risk of harm to others, a person legally responsible under these code articles for the supervision, care, or guardianship of the person or thing may be held liable for the damage thus caused, despite the fact that no personal part is proved. The liability arises from his legal relationship to the person or thing whose conduct or defect creates an unreasonable risk of injuries to others.

"The Fault of the person thus liable is based upon his failure to prevent the person or thing for whom he is responsible from causing such unreasonable risk of injury to others. Thus, the person to whom society allots the supervision, care, or guardianship (custody) of the risk-creating person or thing bears the loss resulting from creation of the risk, rather than some innocent third person harmed as a consequence of his failure to prevent the risk. His fault rests upon his failure to prevent the risk-creating harm and upon his obligation to guard against the condition or activity (by the person or thing for which he is responsible) which creates the unreasonable risk of harm to others." Id. at 446.

The court then specified the requirements for recovery and the defenses available under Article 2317:

"This jurisprudence recognizes that the injured person must prove the vice (i. e., unreasonable risk of injury to another) in the person or thing whose act causes the damage, and that the damage resulted from this vice. Once this is proved, the owner or guardian responsible for the person or thing can escape liability only if he shows the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force." Id. at 446-447. (Emphasis applied)

Thus, under this decision, delictual responsibility does not necessarily depend upon the commission of negligent acts, but upon fault, and the owner or custodian of an instrumentality which causes unreasonable risk of injury to others is at fault. ²

As evident from Loescher, the liability afforded by Article 2317 can only be avoided where it is established that the damage was caused by (1) the fault of the victim; (2) the fault of some third person; or (3) some irresistible force. ³ Since the Loescher decision, the most often raised defense to the application of Article 2317 is that the fault of a third party was the cause of the accident. This trend is exemplified by the case of Panek v. Gulf Insurance Co., 341 So.2d 46 (La.App. 3rd Cir. 1976), wherein the court found that the cause of an accident in which a wheel on a truck had become dislodged, thus striking another vehicle, was due to the prior owner's failure to properly tighten the bolts located on the wheel. Because the damage resulted from the fault of a third person, and not merely a defect in the wheel, the owner of the truck was not liable under Article 2317.

Initially, the jurisprudence held that in order to be relieved of liability under this defense, the defendant had to prove that the accident was caused Solely by the fault of a third person. Tiger Well Service v. Kimball Production Co., 343 So.2d 1153 (La.App. 3rd Cir. 1977). However, the First Circuit has recently relaxed this standard to require that the fault of the third party be merely a substantial factor of the accident, not necessarily the sole cause. American Road Insurance Co. v. Montgomery, 354 So.2d 656 (La.App. 1st Cir. 1977), writ denied, 356 So.2d 430 (La.1978). ⁴ Proof of less than substantial causation would not invoke the application of this defense.

The defendants in this action seek to exculpate themselves from liability under Article 2317 by alleging that the sole cause of this accident was due to the existence of a defect in the chain encasing the spool and thus the fault of the third person. This defense does not seek to establish the fault of a third party through his actions or failure to act, but rather seeks to impute his fault by the mere existence of a latent defect in the chain.

In order for a latent defect to constitute a valid defense, the proof must be so strong that it excludes any other reasonable hypothesis with reference to the cause of the accident except that it resulted solely from the alleged defect. Sentry Insurance Co. v. Thomas, 360 So.2d 268 (La.App. 4th Cir. 1978). Thus, the defendants must establish by convincing evidence that the accident resulted from the defect itself and not from any activity for which the defendants are responsible. A review of the record in this case indicates that the defendants have failed to meet this burden of proof.

Although the trial court found that a defect in the chain did exist, it was also the court's opinion that the accident was in part due to the improper binding of the spool on the truck bed. (Tr. 400) Thomas M. Grubbs, qualified as an expert in mechanical engineering, testified that this accident was caused when the rear chain fastening the spool became loose, allowing the load to shift on the truck. (Tr. 501) This movement produced an overload on the front chain, increasing the stress imposed on the faulty link causing it to give way. (Tr. 503-504) Mr. Grubbs' testimony indicated that the accident could have easily been prevented by fastening a third chain...