Lopez v. Chicago Bridge and Iron Co.

• Decision Date: 28 June 1989
• Docket Number: No. 88-305,88-305
• Citation: 546 So.2d 291
• Parties: Randall Keith LOPEZ, Plaintiff-Appellee, v. CHICAGO BRIDGE AND IRON COMPANY, et al., Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 291

546 So.2d 291

Randall Keith LOPEZ, Plaintiff-Appellee, v. CHICAGO BRIDGE AND IRON COMPANY, et al., Defendant-Appellant.

No. 88-305.

Court of Appeal of Louisiana,

Third Circuit.

June 28, 1989.

Rehearing Denied Aug. 1, 1989.

Jones, Jones & Alexander, J.B. Jones, Cameron, for plaintiff-appellee.

Carmouche, Gray, David R. Frohn, and Leithead, Scott, Preston Savoy, Lake Charles, for defendant-appellant.

Jones, Tete, Edward J. Fonti, Lake Charles, for defendant-appellee.

Before STOKER, YELVERTON and KNOLL, JJ.

KNOLL, Judge.

This products liability case focuses on the propriety of a judgment notwithstanding the verdict (JNOV) and whether the trial court erred by not applying LSA-R.S. 9:2772, Louisiana's ten year peremption statute for actions involving deficiencies in the design of improvements to immovables.

Chicago Bridge and Iron Company (CBI) appeals the granting of a JNOV which found it liable for a back injury Randall Lopez received when a 2,700 pound header atop an 85 foot high urea autoclave was removed during a turnaround at Olin Corporation's Lake Charles plant. The trial court, overruling the jury's verdict which exonerated CBI and Lopez, and assigned 100% fault to Olin, found in a JNOV that CBI was 100% at fault because of a defective design in the header, and awarded Lopez $1,122,777.84, subject to Olin's credit for worker's compensation benefits.

CBI contends that the trial court erred: (1) in granting the JNOV; (2) in failing to apply LSA-R.S. 9:2772; (3) by imputing the defective design of Arthur G. McKee & Co. (McKee), the engineering firm, to CBI, the fabricator; and, (4) in making an excessive quantum award ($200,000) for pain and suffering. We affirm.

FACTS

On August 8, 1984, Lopez, who was 30 years of age, and two other Olin employees were doing turnaround work at Olin's Lake Charles facility. At the time of the accident, they were assigned to remove the header from the top of an autoclave.

McKee made the design specifications. CBI fabricated the autoclave in late 1964 and early 1965, and shipped it to Olin. Only CBI's name was affixed to the nameplate as manufacturer.

The autoclave is a cylindrical pressure vessel approximately 6 feet in diameter which stands almost 85 feet high. Several insulated pipes enter and exit the vessel at the top through a header, a large, circular metal flange, 3 feet in diameter and 10 inches thick, which weighs 2,700 pounds. A work platform encircles the top of the autoclave so that the header can be serviced. The header is attached to the autoclave by 16 threaded studs which pass through 3 inch holes equally spaced along the outer circumference of the header. An aluminum gasket is inserted between the header and the autoclave, and a seal is formed when the studs are bolted down with large nuts, marrying the gasket to concentric serrations on the header and autoclave.

After Lopez and his co-workers first removed the large nuts with impact wrenches, their supervisor, Harvey LaFosso, then signaled an 80 ton crane to boom down over the header. Two choker slings with shackles were attached to the crane and hooked to two lifting lugs on the header. When initial attempts to remove the header by use of just the crane failed, Lopez and his co-workers, under orders from their supervisor, positioned brass wedges where the header mated with the top of the autoclave and then beat the wedges with 16 pound sledge hammers as the crane pulled up on the header. After some effort was expended by the men, the seal finally broke. Under the influence of the crane's upward pull, the header was propelled 20 to 30 feet into the air and struck the boom of the crane. Lopez jumped back on the platform as the header was jerked upward. He struck his back and elbow on either a chain fall or come-along left on the work platform by an earlier crew which had removed the insulation from the header. Lopez was treated with heat at the first aid station for bruises on his back and remained on light duty for two weeks.

Ultimately, Lopez underwent a spinal fusion and at the time of trial was still unable to work.

Lopez sued Mike Queenan Equipment Company, Mike Queenan Rigging, Inc., and their insurers, as well as CBI.

Just prior to trial, the trial court denied CBI's motion for summary judgment in which it sought dismissal from the litigation pursuant to the peremption statute, and its motion to file a third-party demand against McKee for contribution or indemnity.

At the close of Lopez's case-in-chief, the Queenan defendants and their insurers were dismissed on motions for directed verdict.

JUDGMENT NOTWITHSTANDING THE VERDICT

CBI contends that the trial court should have denied Lopez's motion for JNOV. It argues that there was conflicting evidence about whether the header design was defective, and that the trial court substituted its evaluation of credibility for the jury's.

Although LSA-C.C.P. Art. 1811 sets forth the rules governing a motion for judgment notwithstanding the verdict, the standard for granting a JNOV has developed jurisprudentially. In Scott v. Hosp. Serv. Dist. No. 1, 496 So.2d 270 (La.1986), the Supreme Court, quoting from Boeing v. Shipman, 411 F.2d 365 (5th Cir.1969), stated:

"When 'the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions [directed verdict and judgment n.o.v.] is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied....' "

The standard for determining the propriety of granting a JNOV is the same as used to determine whether a directed verdict should be granted. Rougeau v. Commercial Union Ins. Co., 432 So.2d 1162 (La.App. 3rd Cir.1983), writ denied, 437 So.2d 1149 (La.1983). In applying this standard the court can not weigh the evidence, pass on the credibility of the witnesses, or substitute its judgment of the facts for that of the jury. Id. at page 1166. Although credibility determinations and evaluation of evidence are reserved to the jury, where virtually no factual dispute exists, no credibility determinations by the jury are required. In such a circumstance, question of existence of a duty, violation of that duty by the defendant, and assumption of the risk or contributory negligence by the plaintiff are legal questions, and certainly within the province of the judge. Id. at page 1166. Simply stated, when there is no factual dispute, the judge is within his province in applying whatever law is applicable.

In reviewing a JNOV we apply the manifest error rule to the judge's conclusions on liability and quantum. Robertson v. Penn, 472 So.2d 927 (La.App. 1st Cir.1985), writ denied, 476 So.2d 353 (La.1985).

The applicable law to the case at hand concerns a design defect in products liability. A product is unreasonably dangerous because of design if a feasible way existed to design the product with less harmful consequences, even though this product was not unreasonably dangerous per se. Halphen v. Johns-Manville Sales Corp., 484 So.2d 110 (La.1986). The standard of knowledge, skill, and care in regard to the failure to use alternative products or designs is that of an expert, including the duty to test, inspect, research, and experiment commensurate with the danger. For this purpose, evidence of whether the manufacturer, held to an expert's standard and skill, could know of and feasibly avoid the danger is admissible under a theory of recovery based on alleged alternative designs or alternative products. Id. at 115.

The first issue CBI raises is that it was the fabricator, not the designer of the autoclave; thus, it argues that it cannot be considered as the manufacturer of the header, one of the autoclave's component parts. This is CBI's main defense.

In Chastant v. SBS-Harolyn Park Venture, 510 So.2d 1341 (La.App. 3rd Cir.1987), writ denied, 513 So.2d 825 (La.1987), we stated:

"The actual manufacturer of a product is held to the higher standard of a manufacturer. Additionally qualifying for 'manufacturer' status is a vendor who holds out the product as his own. Penn v. Inferno Manufacturing Corp., 199 So.2d 210 (La.App. 1st Cir.1967), cert den., 251 La. 27, 202 So.2d 649 (La.1967). Holding out a product in any significant manner as one's own is likely to earn one the label 'manufacturer.' Media Production Consultants, Inc. v. Mercedes-Benz of North America, Inc., 262 La. 80, 262 So.2d 377 (1972); Chappuis v. Sears Roebuck & Co., 358 So.2d 926 (La.1978). Furthermore, the manufacturer of the completed product is treated as a manufacturer of the component parts. Spillers v. Montgomery Ward & Co., Inc., 294 So.2d 803, 807 (La.1974). Obviously, 'apparent manufacturers' may be held liable in redhibition, when a manufacturer's imputed knowledge of defects is assessed against them."

As explained in Penn, supra, citing Carney v. Sears, Roebuck and Co., 309 F.2d 300 (4th Cir.1962), the basis for this rule is that ' "where the vendor puts only its name upon the product without indicating that it is actually the product of another then the public is induced by its reasonable belief that it is the product of the vendor to rely upon the skill of the vendor and not upon the skill of any other." '

This issue was squarely addressed in Bacile v. Parish of Jefferson, 411 So.2d 1088 (La.App. 4th Cir.1981), writ denied, 415 So.2d 950 (La.1982), and disposed adverse to CBI's contention. There, our brethren of the Fourth Circuit disposed of the defendant's argument that a fabricator was not a manufacturer, saying:

"The manufacturer is also liable to plaintiff for its failure to manufacture the grate in a reasonably safe condition for its intended use. That the manufacturer fabricated the grate in...