Pisciotta v. Allstate Ins. Co.

• Decision Date: 21 November 1979
• Docket Number: No. 64915,64915
• Citation: 385 So.2d 1176
• Parties: Brenda PISCIOTTA, wife of/and Joseph Pisciotta v. ALLSTATE INSURANCE COMPANY and R. B. Coleman.
• Court: Louisiana Supreme Court

Page 1176

385 So.2d 1176

Brenda PISCIOTTA, wife of/and Joseph Pisciotta v. ALLSTATE INSURANCE COMPANY and R. B. Coleman.

No. 64915.

Supreme Court of Louisiana.

Nov. 21, 1979.

Dissenting Opinion Dec. 14, 1979.

On Rehearing June 3, 1980.

James A. Babst, Chaffe, McCall, Phillips, Toler & Sarpy, Russell M. Cornelius, Normann & Normann, New Orleans, for defendants-respondents.

Marvin C. Grodsky, New Orleans, for plaintiffs-applicants.

DENNIS, Justice. ^*

This personal injury suit was brought by plaintiff, Brenda Pisciotta, who was injured when suspended ceiling panels fell on her during her part-time employment at a Sears store. The trial court rendered judgment against a renovation contractor, its insurer and three Sears executive employees, awarding her $35,000 in general damages, essentially for a herniated disc, and $44,441.00 for a 20% diminution of her earning capacity. The court of appeal vacated the judgment against the Sears executives and reduced the award to $15,000 without specifying the injuries for which it compensated. We reverse in part and affirm in part. After reviewing the evidence, we conclude that the trial judge did not commit reversible error by finding that (1) Brenda Pisciotta sustained a herniated disc caused by the falling ceiling panels; (2) The Sears executives were guilty of negligence proximately causing the accident; (3) The plaintiffs were entitled to an award of $35,000 in general damages, primarily for her herniated disc. However, we further conclude that the trial judge erred manifestly in awarding damages of $44,441.00 on the basis of a finding that Brenda Pisciotta had suffered a 20% diminution in her earning capacity as a result of the accident.

The accident occurred at a Sears store in Jefferson Parish where Brenda Pisciotta was working part-time in the catalog sales department, on October 1, 1975. An employee of a renovation contractor, Gulf Best, caused some ceiling panels to fall on Pisciotta. Three of Sears' local managerial employees, R. B. Coleman, William Laughmiller and Lang Eddins, had approved Gulf Best's pursuit of its contract work during working hours and in close proximity to the catalog department. Pisciotta was seen immediately by the company doctor, to whom she complained only of an injured finger. She continued to work regularly on a part-time basis, but complained of back pains to a fellow employee. Six weeks after the accident she returned to the company doctor complaining of back pains. He treated her with conservative measures at irregular intervals until February 25, 1976, at which time he referred her to an orthopedist because of the persistence of her pain. During the next few months, Pisciotta was seen and treated by two orthopedic surgeons and a neurological surgeon.

Upon trial of the case the district judge found that the Gulf Best employees and the Sears executives were guilty of negligence which proximately caused Pisciotta's injuries. In his written reasons for judgment he made the following findings:

"The panels, of which one of the type is in evidence, were of plastic 'egg-crate' type that lie loose in a metal frame. This frame is itself attached to the surrounding walls, or, in this case, a wall and a valence constructed for that purpose. One of these walls or sections of valence had previously been removed to permit extending the length of the entire structure. At that end, the metal gridwork apparently hung free, temporarily unattached.

"Defendant Gulf Best's employee William A. Doyle testified, quite candidly, that he was himself actively working in the area wherein the new valence, ceiling and counter were being installed immediately adjacent to the older structures to which these would be connected, that his activities consisted of hammering, aligning the new, contiguous valence which had been 'shimmed' to a tight fit against the old, installing 2' by 4' boards between the valence and the rear wall, that approximately ten Sears employees worked in the pre-existing section immediately adjacent, that the loose panels could have been removed prior to construction but were not. Any of his above-described activities were sufficient to cause the mere 1/2 to 3/4 inch dislodgement of the tract holding the ceiling panels that would suffice, according to his testimony, to cause the panels to fall out.

"In fact, the accident did occur during his above-described labor and in his full view, Mr. Doyle describing four to six such panels falling upon plaintiff.

"After this accident, but not before, some additional panels were removed to prevent a repetition of the occurrence.

"The motion of the pre-existing valence as Mr. Doyle was manipulating the contiguous and touching new section of valence is also described as simultaneous with the sound of the fall of the panels by the Sears employee-manager of the catalog department, Andrew Pederson, an eye-witness.

"The preponderance of evidence, then, clearly establishes Gulf Best's poor and unnecessarily hazardous operating practices as negligence, and this negligence as the cause of the ceiling panel fall.

"Next, the Court turns to plaintiff's allegations of negligence on the part of certain Sears supervisory employees.

" * * *

"The circumstances described do not comport with the statute's and the Court's notion of 'a safe place to work.'

"Mr. R. B. Coleman personally knew or should have known of this non-performance or mal-performance (of the obligation to furnish a safe place to work) so as to bring him within the ambit of culpable persons delineated in Canter. He admitted having overall responsibility for safety, visiting the catalog department during the construction 'three or four times a week,' during which time the catalog department employees were working there, that he ordered no changes but, in retrospect now feels he would, if the same situation were to occur, see that the ceiling panels were removed before permitting the work to take place. He participated in the formulation of the plan to do the work, the manner in which it was to be done, its being done during store working hours, and its being done without temporary relocation of the catalog department and its employees.

"The latter (Mr. Coleman's participation) was attested to by William Laughmiller and, in part, by Lang Eddins who testified that only Mr. Coleman would have authority to close the area or relocate the department, and directed this not be done.

"Mr. Laughmiller's testimony further revealed that he visited the work site at which the conditions described prevailed every day. He knew that employees of Sears were working in an area adjacent to the new construction. He knew that the new valence was being attached to the old valence and that catalog department employees were working directly under the egg crate ceiling panels which were in the track system connected to the old valence. Even though he claimed that he had delegated his responsibilities for enforcing OSHA requirements to Messrs. Eddins and Menne for this particular renovation project, he admitted he was not rid of his overall responsibility for the safety of Sears employees in the catalog department. In fact, he states that he visited the renovation site daily to make sure that the work was being done in a proper fashion. He admitted being a participant in the initial planning conference with Coleman and Eddins at which the decision resulting in the employees working in the hazardous circumstances were made.

"Lang Eddins considered himself in charge of this project although he reported to Laughmiller and Coleman. He admits that he had the authority to stop unsafe practices but did not do so because he did not consider the situation to be an unsafe one. The Court disagrees.

"Accordingly the Court finds each of these three defendants, R. B. Coleman, William Laughmiller and Lang Eddins, in violation of the duties owed plaintiff, Brenda Pisciotta, by them and further finds these violations to have proximately caused her accident."

Accordingly, the district judge rendered judgment for the plaintiffs, Pisciotta and her husband, against Gulf Best, its insurer The Fidelity and Casualty Company of New York, and the three Sears executives. Pisciotta was awarded $35,000 in general damages and $44,441.00 because of a 20% diminution in her earning capacity.

On appeal, the court of appeal modified the judgment by reducing the total award to $15,000 and releasing the Sears executives from liability. The intermediate court found "that there is support in the record for the conclusion that Gulf Best's employees knew or should have known that their work . . . could cause one or more of the panels to shake loose . . . ;" but that, since there had been no similar previous incidents, "there was no reason (for the Sears executives) to believe that this incident would occur." The court of appeal concluded that the district judge abused his discretion in awarding the plaintiffs $35,000 for general damages and $44,441.00 for loss of earning capacity, finding that the plaintiffs had failed to carry their burden of proving either that Pisciotta sustained a herniated disc in the accident or that her earning capacity had been substantially diminished.

The rules of law governing a court of appeal's review of a trier of fact's determination of causation and assessment of damages were stated and discussed exhaustively in Canter v. Koehring, 283 So.2d 716 (La.1973); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977); and Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Without setting forth the rules at length, we will consider whether they were properly applied in this case.

The issues are: (1) Did the accident cause Pisciotta to have a herniated disc? (2) Has her earning capacity been diminished by 20%? (3) Were the Sears executives guilty of negligence which proximately caused the accident?

1. Cause of Plaintiff's Herniated Disc

In his written reasons the...