Nichols v. U.S. Rentals, Inc.
| Decision Date | 17 January 1990 |
| Docket Number | No. 89-CA-525,89-CA-525 |
| Citation | 556 So.2d 600 |
| Parties | Thomas Ed NICHOLS, et al. v. U.S. RENTALS, INC., et al. 556 So.2d 600 |
| Court | Court of Appeal of Louisiana — District of US |
Wayne C. Giordano, Belle Chasse, for plaintiffs/appellants.
Carolyn Pratt Perry, Funderburk & Andrews, Baton Rouge, for defendant/appellee, U.S. Rentals, Inc., Transcontinental Ins. Co., Columbia Cas. Co. and Protective Nat. Ins. Co.
C. Scott Carter, Metairie, for defendants/appellees, Pro Comm Corp. and Cotton States Ins. Co.
Before KLIEBERT, BOWES and GOTHARD, JJ.
This appeal arises from a suit filed by Thomas E. Nichols and his wife, Jane F. Nichols, for damages for injuries sustained by Thomas Nichols after the cage of a Mark Pal man lift flipped and Nichols fell onto a concrete floor. Named as defendants in the suit were U.S. Rentals, owners of the lift, Mark Industries, manufacturer, Pro Comm Corporation and Telecom Plus, both of whom had rented the lift, and the respective insurance carriers of each named defendant. Mark Industries and Telecom Plus settled prior to trial.
The case was tried before a jury on February 14, 1989. When plaintiffs had finished the presentation of their case, Pro Comm Corporation and Cotton States Insurance Company moved for and were granted a directed verdict. At the conclusion of the trial, the jury returned a verdict in favor of U.S. Rentals and its insurers and against plaintiffs. The jury verdict consisted of answers to twelve interrogatories, as follows:
Q1) Do you find that the plaintiff, Thomas Ed Nichols, was injured as a
result of the events that occurred on June 11, 1984
Yes x No
INSTRUCTION: If your answer is yes, proceed to question number 2. If your
answer is no, proceed to the end of this form, sign and date it
Q2) Do you find that the defendant, U.S. Rentals, Inc. was negligent in their
modification and renting of the piece of equipment from which the
plaintiff fell
Yes No x
INSTRUCTION: If your answer is yes, proceed to question 3. If your answer is
no, skip number 3 and proceed to number 4
Q3) Do you find that the negligence of U.S. Rentals, Inc. was a cause in fact
of the plaintiff's injuries?
Yes No
Q4) Do you find that the manufacturer failed to warn of those dangers outside
the knowledge of the ordinary user?
Yes No x
INSTRUCTION: Proceed to question number 5.
Q5) Did this failure to warn contribute to the cause in fact of the accident?
Yes No x
INSTRUCTION: Proceed to question number 6.
Q6) Do you find that the plaintiff, Thomas Ed Nichols, was negligent in his
use of the equipment?
Yes x No
INSTRUCTION: If your answer is yes, proceed to question number 7. If your
answer is no, skip numbers 7 and 9 and proceed to question number 9.
Q7) Do you find that the negligence of the plaintiff was a contributing cause
of his injuries?
Yes x No
INSTRUCTION: If your answer is yes, proceed to question number 8. If your
answer is no, skip number 8 and proceed to question number 9.
Q8) What percentage if any do you attribute to the following parties:
Mark Industries 0%
U.S. Rentals 0%
Thomas Ed Nichols 100%
Q9) What amount do you find would fully compensate the plaintiff, Thomas Ed
Nichols, for his injuries? (Make no reduction for the negligence of the
plaintiff, if any was found. Any reduction will be made by the Court.)
a. Past and present mental and physical pain $ 0
and suffering
b. Future mental and physical pain and $ 0
suffering
c. Present and future medical expenses $ 0
d. Loss of earning capacity $ 0
e. Permanent disability $ 0
INSTRUCTION: Proceed to question number 10.
Q10) Do you find that the plaintiff, Jane F. Nichols, suffered a loss of
consortium as a result of the injury to her husband?
Yes No x
INSTRUCTION; If your answer is yes, proceed to question 11. If your answer is
no, proceed to the end of this form and sign and date it.
Q11) What amount would fully compensate Jane F. Nichols for her loss of
consortium?
$
Q12 Did U.S. Rentals, Inc. breach its lease or agreement with Pro Comm Corp.
by failing to pick up the manlift prior to the accident?
Yes No x
laintiffs filed for a devolutive appeal, assigning nineteen specifications of error. We find that all of plaintiffs' allegations of error lack merit. Consequently, we affirm the verdict of the jury and the judgment of the trial court.
The facts of the case are as follows:
In 1984, Thomas Nichols was employed by Associated Distributors, the parent company of West Building Materials, Inc. On May 10, 1984, Nichols arrived in Louisiana to supervise renovation and addition work being performed at the West Building Materials store in Gretna, Louisiana. Thereafter, Nichols was at the job site daily each Monday through Friday.
Telecom Plus was hired to install a telephone system at the West Building. In May, 1984, Telecom rented a portable scaffold, known as a "Mark Pal" man lift, from U.S. Rentals, Inc. After Telecom was finished with the lift, it was returned to U.S. Rentals.
The Mark Pal man lift has a platform which is raised by means of a hydraulic lift. The platform is surrounded by a metal cage. The cage is not permanently attached to the floor, but is secured by the use of wing nuts and bolts. In addition, there is a wing nut which secures the door of the cage. A spring-loaded rod is located on the side of the cage, which is a locking device to secure the cage. The man lift also has outriggers which are to be extended to stabilize the lift and to prevent it from tipping over. There are several decals on the lift, including two which state "CAUTION--CAGE SAFETY WING NUTS MUST BE SECURED BEFORE RAISING PLATFORM"; and "CAUTION--EXTEND OUT RIGGERS BEFORE USING."
After purchasing several of these lifts, U.S. Rentals discovered that the wing nuts would rust and break when someone was trying to disconnect the cage. U.S. Rentals changed the wing nuts to hexagon-shaped nuts, which could be removed without breaking. However, U.S. Rentals did not change the warning decal on the man lift.
Pro Comm Corporation was hired to install a security system in the West Building. On Monday, June 4, 1984, Pro Comm's sales and service representative, Morris Baden, contacted U.S. Rentals to rent the man lift and it was delivered on Tuesday of that week. The driver of the delivery truck, a U.S. Rentals employee, gave Baden instructions on how to use the lift. These instructions included how to turn the cage to its upright position, how to secure the platform of the cage by screwing the hexagon-shaped nuts into bolts sticking through holes in the floor, how to secure the spring-loaded safety latch, and how to extend the outriggers so the cage would not tip over.
Baden used the lift on Tuesday, Wednesday and part of Thursday. On Thursday, which was June 7, 1984, Baden called U.S. Rentals and told them he would be finished with the lift that day. Around noon, Baden brought the lift outside, dismantled the nuts, lowered the cage, and left the lift next to the fence so U.S. Rentals could retrieve the lift. Baden then told the manager of West Building Materials, Ed Knight, that he and his crew were leaving.
Because of delivery demands and personnel absences, U.S. Rentals scheduled pick up of the lift for Tuesday, June 12, 1984.
On Monday, June 11, 1984, when Nichols arrived at the store, he saw the lift inside the store, next to a side entrance; it was plugged into a socket for recharging. Some time during Monday afternoon, Nichols used the lift in order to ascertain whether some merchandise was on a shelf which was twelve-feet high. According to his testimony at trial, Nichols did not read the instructions or warning decals on the lift immediately prior to using the lift, nor did he secure the cage or extend the outriggers. Nichols testified that he believed the floor and the cage were made in a fixed position. He climbed up the ladder into the cage, raised the lift, but did not see what he was looking for. He lowered the lift and, as he climbed down the ladder, the cage tipped over and he fell onto the concrete floor.
Mr. Baden testified at trial that neither he nor anyone else associated with Pro Comm had given Nichols or any other West employee permission to use the man lift. Witnesses for U.S. Rentals testified that the company had never been contacted by Nichols or any other West representative for rental of the man lift, nor had any permission been given to Nichols or West to use the lift.
Nichols admitted at trial that he had never used this particular man lift before. While also admitting that he had not read the warning decals immediately prior to using the lift, he stated that he had read them on a previous occasion, and that he believed that the warning regarding the wing nuts applied to securing the door of the cage. However, the credibility of this testimony is questioned greatly, if not absolutely contradicted, by his admission at trial that, in his deposition taken in April, 1986, he was...
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