Landaiche v. Lou-Con

• Citation: 461 So.2d 1107
• Decision Date: 11 December 1984
• Docket Number: 84-CA-32,P,LOU-CO,Nos. 84-CA-31,s. 84-CA-31
• Court: Court of Appeal of Louisiana — District of US
• Parties: Richard B. LANDAICHE v.ayne & Keller of La., Inc., Payne & Keller, Inc., National Standard Insurance Co., KTM Industries and Goulds Pumps. 461 So.2d 1107

Page 1107

461 So.2d 1107

Richard B. LANDAICHE v. LOU-CON, Payne & Keller of La., Inc., Payne & Keller, Inc.,

National Standard Insurance Co., KTM Industries

and Goulds Pumps.

Nos. 84-CA-31, 84-CA-32.

461 So.2d 1107

Court of Appeal of Louisiana,

Fifth Circuit.

Dec. 11, 1984.

Rehearing Denied Jan. 17, 1985.

Milton E. Brener, Gary M. Pendergast, Herbert J. Garon, Garon, Brener & McNeely, New Orleans, for Richard B. Landaiche plaintiff-appellee.

Richard T. Regan, Philippi P. St. Pee', Francipane, Regan & St. Pee', Metairie, for

Payne & Keller of La., Inc. and Md. Cas. Co. defendants-appellants.

Avery T. Waterman, Jr., William F. Bologna, McGlinchey, Stafford, Mintz, Cellini & Lang, PLC, New Orleans, for American Cyanamid Co. intervenor-appellee.

Before KLIEBERT, BOWES and GAUDIN, JJ.

KLIEBERT, Judge.

This case arises from an accident at the American Cyanamid facility in Jefferson Parish. A supervisor in training in the melamine plant was severely burned over 85% of his body when a pump which was being dismantled suddenly discharged hot liquid. From a judgment in favor of the plaintiff and against a maintenance subcontractor and its insurer, the defendants appeal.

The accident occurred on August 24, 1977. On August 23, 1978, the plaintiff, Richard B. Landaiche, an employee of American Cyanamid Company (Cyanamid), filed suit against numerous defendants, including the subcontractor, Payne & Keller of Louisiana, Inc. (Payne & Keller) and its insurer, Maryland Casualty Company (Maryland Casualty). ¹ Cyanamid intervened in the suit for reimbursement of benefits paid to Landaiche under workers' compensation. Judgment was rendered on March 18, 1983, and an amending judgment was rendered on April 27, 1983. In the amending reasons for judgment the judge stated that the cause in fact of the accident was the negligence of Payne & Keller employees, Ted Martinez and Norris Buckhannon, and of Cyanamid employee, Joseph McKechnie. He found that Landaiche was free of contributory negligence. The amending judgment in favor of the plaintiff, Landaiche, and against the defendants, Payne & Keller and Maryland Casualty, awarded him $881,530.15 plus legal interest from date of judicial demand and costs. Also it held in favor of the intervenor, Cyanamid, and against Payne & Keller and Maryland Casualty in solido in the amount of $101,321.42 in reimbursement for workers' compensation benefits and medical expenses paid prior to trial. It further cast Payne & Keller and Maryland Casualty for all Cyanamid's post-trial compensation and medical payments and future obligations, and granted the intervenor a credit of the full amount of the judgment awarded to the plaintiff against its obligations.

All other defendants were dismissed prior to or during trial. Payne & Keller and Maryland Casualty have perfected this appeal, and Landaiche has answered the appeal.

Payne & Keller had entered into a contract with Cyanamid to provide maintenance services at the Westwego plant in April, 1975. The contract was amended from time to time as to hours and pay but was still in effect on the day of the accident. Two Payne & Keller millwrights, Ted Martinez and Norris Buckhannon, had been assigned by their employer to remove a recycle pump from a tank in the melamine plant at the request of Cyanamid. The tank contained melamine crystals in a water solution, a "slurry," at a temperature of about 230 degrees F. The pump had been installed several years after the plant was built, its purpose being to provide additional circulation and stop blockage or plugging in the tank and valves. The pump had reduced but not eliminated the problem of plugging.

Landaiche, twenty-seven years old when he was injured, is a high school graduate and was hired by Cyanamid as an hourly employee in May, 1976 but was shortly promoted to a panelboard operator in the urea plant. In May, 1977 he was offered an opportunity to train as a shift supervisor and to learn the melamine operation. During the next several months he continued to work in his previous position but was ordered to spend any available time observing in the melamine plant. On August 1, 1977, just three weeks before the accident, he signed a contract as a salaried supervisor in training and was assigned full time to the melamine unit.

On the day of the accident Martinez and Buckhannon had begun disassembling the pump, having been given a safety work permit signed by the Cyanamid shift supervisor. A Cyanamid operations crew on the previous shift had prepared the pump for maintenance by isolating the suction and discharge lines of the pump, opening the low point drain and locking the pump breaker so that the motor would not start. When the Payne & Keller men arrived at the pump, the valves had been closed and tagged, "Do not open." As Landaiche walked into the area one of the mechanics called him over and asked him to check whether the tagged valves were truly closed. This he did, told the men to proceed with what they were doing, and stood nearby to watch the procedure. The mechanics had followed their usual procedure of gradually loosening the bolts holding the pump housing, but when the next to last bolt was loosened the pump opened, releasing a wall of hot liquid onto Landaiche. The two mechanics received minor injuries.

Landaiche received severe burns over his entire body with the exception of his face, head, hands, and feet and minute areas scattered over his body. During his hospitalization, from August 24, 1977 through October 22, 1977, he was in danger of death until early October. He experienced many complications, including respiratory distress requiring an endotracheal tube, a tracheotomy and a respirator, heart, kidney, and gastrointestinal problems. Part of the burn treatment entailed daily debridement, scrubbing off the top layer of skin prior to application of ointment. That procedure was so excruciatingly painful that Landaiche had to be restrained.

The accident has left Landaiche with hypertrophied and keloid scars (a thick, "elephant-like skin") over 45% of his body with 85/90% loss of skin function, with destroyed sebaceous glands rendering him extremely sensitive to heat, and with limited mobility (34%) of the knees, hips & shoulders. He must wear Jobst pressurized body suits during the day which further limit his mobility, crease uncomfortably when he sits, and retain any perspiration from the scattered unscarred areas of his body. He has been rendered infertile. He is repelled by the sight of his own body and wears long sleeves and long trousers at all times. The burns may become more pliable in time but cannot be corrected cosmetically. He suffers severe depression. The physical and emotional residuals have had a detrimental effect on his relationship with his wife and daughter, and on his recreational activities and employment. He previously preferred outdoor physical work and activities which are now intolerable in warm weather. Landaiche returned to the Cyanamid plant in February, 1978 in an indoors position created for him. However, he was unable to adjust to the work available and resigned in August, 1981. He has not been steadily employed since that date.

The issues raised by Payne & Keller are factual: whether the cause of the accident was the negligence of Payne & Keller's employees or that of Cyanamid's employees, and whether the plaintiff, Landaiche, was contributorily negligent. Landaiche asks us to consider whether the award to him is adequate.

Causation

In considering causation we first look to background facts regarding the melamine operation that were established at trial. Plugging or stoppage in the pipes in the melamine operation was common knowledge to both the Payne & Keller employees and the Cyanamid employees. While the plaintiff was newer to that area than the men dismantling the pump and less familiar with the operation, he acknowledged being aware of the problem.

Safety was the responsibility of both companies. The contract governing Payne & Keller's maintenance provided that it was responsible for the conduct of the work and for compliance with safety practices of the Associated General Contractors of America, Inc. and with Cyanamid's safety rules. ² Cyanamid checked for safety before allowing maintenance work to proceed. Payne & Keller was required by its contract to take all necessary precautions not to endanger Cyanamid's employees and members of the general public. The Payne & Keller supervisor at the Cyanamid plant testified that their employees had copies of safety rules and were aware of hazardous chemicals and extreme temperatures and pressures.

The work request for maintenance originated with Cyanamid's production foreman and outlined the type of work required. The Payne & Keller foreman then selected the workers and prepared a safety work permit, checking off safety equipment required. The mechanics then took the permit to the Cyanamid shift supervisor who reviewed the permit and inspected the job site to determine if the proper safety equipment was provided and if the equipment to be repaired was properly isolated. (In this instance Cyanamid operations personnel had set up the job by isolating the pump.) The Cyanamid supervisor then signed the permit if he found that the equipment was ready and it was safe for the maintenance crew to proceed. As noted above, both Cyanamid and Payne & Keller employees were required to observe safety rules. The Payne & Keller men both testified that if they had any questions or concern regarding safety they were to stop work and consult a Cyanamid supervisor or a Payne & Keller foreman.

The trial judge in his reasons for judgment stated that Joseph McKechnie of Cyanamid was negligent in signing the safety work permit and allowing maintenance to proceed when he felt there was a 20% chance there was a plug in the line. He found that Norris Buckhannon and Ted Martinez of Payne & Keller were negligent in failing...