Prather v. Caterpillar Tractor Co., Inc.

• Decision Date: 11 May 1988
• Docket Number: No. 87-314,87-314
• Citation: 526 So.2d 1325
• Parties: Prod.Liab.Rep.(CCH)P. 11,957 John Burley PRATHER, Plaintiff-Appellant, v. CATERPILLAR TRACTOR COMPANY, INC. and Boyce Machinery Corporation, Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 1325

526 So.2d 1325

Prod.Liab.Rep.(CCH)P. 11,957

John Burley PRATHER, Plaintiff-Appellant, v. CATERPILLAR TRACTOR COMPANY, INC. and Boyce Machinery Corporation, Defendants-Appellees.

No. 87-314.

Court of Appeal of Louisiana Third Circuit.

May 11, 1988.

Bruce A. Gaudin, Opelousas, plaintiff-appellant.

McGlinchey, Stafford & Mintz, C.G. Norwood, Jr., New Orleans, Mathews, Atkinson, Guglielmo, Marks & Day, Judith R. Atkinson, Baton Rouge, Raggio, Cappel, Chozen & Berniard, M. Keith Prudhomme, Lake Charles, defendants-appellees.

Before DOMENGEAUX and GUIDRY, JJ., and REGGIE, ^* J. Pro Tem.

GUIDRY, Judge.

This is a products liability case. John Burley Prather allegedly injured himself on December 3, 1982, when he slipped while attempting to climb into a Caterpillar Model 215 Excavator at the Clifton Ridge Terminal belonging to Conoco, Inc. The accident occurred in Calcasieu Parish, Louisiana. Prather brought this products liability suit against Caterpillar Tractor Company, Inc. (hereafter Caterpillar), the manufacturer of the excavator, and Boyce Machinery Corporation (hereafter Boyce), the owner/lessor of the excavator, alleging that the excavator's ingress/egress system was defective because of its design. Boyce filed a third party demand against Caterpillar for contribution and/or indemnity in the event it was held liable. Fireman's Fund Insurance Company (hereafter Fireman's) intervened to recover worker's compensation benefits and medical expenses paid to plaintiff. All parties stipulated that Fireman's was entitled to $41,616.00 for worker's compensation benefits and $37,528.42 in medical expenses to be paid in preference out of any award made to plaintiff. A jury unanimously found that the Caterpillar Model 215 Excavator was free of any defect when it left the custody and control of Caterpillar and no negligence on the part of Boyce. The jury also found on a vote of 11 to 1 that plaintiff was 100% at fault. The trial court rendered judgment pursuant to the verdict, dismissing plaintiff's suit. Plaintiff appealed. Firemen's the intervenor, has not appealed.

FACTS

Conoco, Inc. contracted with Tetra Enterprises, Inc. (hereafter Tetra) to do excavation work on a pipeline at its Clifton Ridge Terminal in the lower part of Calcasieu Parish, Louisiana. E.J. Naquin, the pipeline superintendent for Tetra, leased a Caterpillar Model 215 Excavator from Boyce Machinery in Lake Charles, Louisiana. On December 3, 1982, John Burley Prather was employed by Tetra to help strip certain pipelines at the Clifton Ridge facility. The job required Prather to operate a Caterpillar 215 Excavator and scoop up the dirt over and around the "live" pipelines while several laborers with shovels helped by clearing out the trench. Although plaintiff had been a heavy equipment operator for over 20 years, he had no prior experience operating the Caterpillar Model 215 Excavator.

The Model 215 Excavator being used by Prather was manufactured by Caterpillar in 1981 and was sold to Boyce on April 28, 1982. The Caterpillar Model 215 is the smallest excavator made by Caterpillar. It is designed to operate as a backhoe type machine with a bucket on the end of a boom located at the front end of the unit and is primarily used for scooping and clearing away dirt. The bucket and machine are mounted on treads or tracks similar to those commonly seen on military tanks. It is designed to operate in muddy or other adverse conditions where wheeled vehicles would be unable to function properly. The machine is controlled from a glass encased work station, located beside the engine, which contains the operator's seat and the controls for steering and operating the machine. The tracks on the Model 215 in question were 28 inches wide.

The recommended method of ingress and egress to the cab of the Model 215 is found in Caterpillar's Operator's Guide for the Model 215 and reads in pertinent part as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

According to the testimony at trial, the proper method to mount the excavator is for the operator to place both his hands on the grab irons marked 4 and 5 and then place his left or right foot on the step marked number 3, which is the top of the track roller frame guard. ¹ Next the operator is to pull himself up maintaining contact with both grab irons while swinging the free foot onto the top of the track. Once this is completed, the foot on the first step is brought up to the top of the track and the operator is free to enter the cab of the unit. To dismount the unit, the operator simply reverses the motions used to mount the unit.

Plaintiff began the Clifton Ridge job on Monday, November 29, 1982, and operated the Model 215 until the accident on Friday, December 3, 1982. A rain occurred on the night of December 2, 1982. The next day, December 3, 1982, dirt and mud accumulated on and between the tracks and the track roller frame guard. After a short work break to allow the laborers to clean out a trench with their shovels, plaintiff slipped while attempting to get back onto the excavator and allegedly sustained injuries to his back.

On appeal plaintiff urges trial court error as follows:

1. The trial court erred when it excluded evidence offered by plaintiff relating to state of the art in the design of access systems for track type vehicles.

2. The trial court erred when it determined that the Model 215 Excavator was not defective when it left the custody and control of the manufacturer.

3. The trial court erred when it determined that plaintiff was 100% at fault.

ISSUE NO. 1

Appellant first urges that the trial judge erred when he refused to allow him to question Caterpillar employees about alleged admissions made by a Mr. Donald Piepho, a Caterpillar employee, in the case of Caterpillar Tractor Co. v. Gonzales, 562 S.W.2d 573 (Tex.Civ.App.1977), reversed and remanded, 571 S.W.2d 867 (Tex.1978), on remand, 599 S.W.2d 633 (Tex.Civ.App.1980).

We find no error in the trial court's ruling. Piepho did not testify in the instant case. Admissions allegedly made by him in a case, totally unrelated to the instant case, involving different parties and a different product were clearly irrelevant and immaterial.

Appellant next urges that the trial court erred when it refused to permit plaintiff's safety expert, A.J. Scardino, to testify regarding "state of the art", specifically with regard to the designs for access systems employed by other manufacturers which incorporate the use of a protruding step. Outside the presence of the jury, plaintiff made a proffer of such evidence.

Plaintiff's expert was not prohibited from and did in fact testify regarding state of the art. Further, our examination of the proffered evidence reflects that the evidence offered, regarding specific designs, was irrelevant and that the trial court's ruling was correct.

In Arledge v. Bell, 463 So.2d 856, 859 (La.App. 2d Cir.1985), the court stated the following well-established jurisprudential rule:

"For evidence to be relevant, it must have some probative value and be reasonably connected to the transaction in question. State in the Interest of Miles, 441 So.2d 61 (La.App. 3rd Cir.1983); Associates Financial Services Company, Inc. v. Ryan, 382 So.2d 215 (La.App. 3rd Cir.1980); Vignes-Bombet Co., Inc. v. Rowe, 288 So.2d 889 (La.App. 1st Cir.1973). The trial court is, however, granted a great deal of discretion in assessing the probative value of evidence. City of Baton Rouge v. Tullier, 401 So.2d 422 (La.App. 1st Cir.1981), writ denied, 406 So.2d 605 (La.1981)."

The record clearly indicates that Caterpillar was aware of the concept of a protruding step. Caterpillar's experts admitted in their testimony that Caterpillar placed such devices on many of its larger units. It is apparent that the proffered evidence was offered to suggest that because other manufacturers equipped their machines with various types of protruding steps, Caterpillar should have placed one on the Model 215. However, upon cross-examination of Scardino during the proffer, he was unable to give the dimensions or even the relative sizes of these allegedly "similar" products in comparison to the Model 215. Consequently, the factual predicate for his alleged "state of the art" testimony and other manufacturer's access system designs was entirely lacking. Thus, this evidence is irrelevant in a determination of whether a protruding step is necessary for safe access to a unit of the size, dimensions and utility of the Model 215. The trial court did not err in refusing to consider the proffered evidence.

Appellant next argues that the trial court erred when it refused to permit Scardino to testify relative to the type of step required by the Society of Automotive Engineers (SAE) J-185 standard for access systems of off-road vehicles. Defendant objected to this testimony based upon the fact that Scardino is not a "machine designer".

In Thomas v. Black and Decker (U.S.) Inc., 502 So.2d 157 (La.App. 3rd Cir.1987), we stated that:

"... The qualification of an expert witness lies within the wide realm of the trial judge's discretion, and that determination will not be disturbed on appeal except on a showing of manifest error. Bateman v. Power Rig Rental Tool Company, 453 So.2d 998 (La.App. 3rd Cir.1984)...."

The record reflects that Scardino holds only a bachelor's degree in "health, physical and safety education" and many years later received a M.S. in Safety Engineering, and a Ph.D. in Safety and Ergonomics from a California "alternative education" establishment, Kensington University. Scardino has taken no university courses in engineering or machine design. We find no error in the trial judge's determination that Scardino lacked sufficient expertise to testify as to whether the design of a particular step met certain safety standards.

Next, appellant contends that the trial judge erred in refusing to allow Scardino to testify...