Richardson v. Avondale Shipyards, Inc.
| Decision Date | 15 May 1992 |
| Docket Number | No. 92-CA-15,92-CA-15 |
| Citation | 600 So.2d 801 |
| Parties | David RICHARDSON, Jr., et al. v. AVONDALE SHIPYARDS, INC., et al. 600 So.2d 801 |
| Court | Court of Appeal of Louisiana — District of US |
Daniel Frazier, Jr., Marrero, for plaintiffs-appellants David Richardson, Jr., et al.
Brian C. Bossier and Robert E. Caraway, III, Blue, Williams & Buckley, Metairie, for defendants-appellees Avondale Industries, Inc., J.M. Garrett, Henry "Zac" Carter, Peter Territo, and Raymond Young.
Donald A. Hoffman and Paul J. Politz, Hoffman, Sutterfield, Ensenat & Bankston, P.C., New Orleans, for defendant-appellee Mine Safety Appliances Co.
Andrew L. Plauche, Jr., Plauche, Maselli & Landry, New Orleans, for defendant-appellee American Motorists Ins. Co.
Ralph S. Hubbard and David A. Bowling Friend, Wilson, Draper, Hubbard & Bowling, New Orleans, for defendant-appellee Travelers Ins. Co.
Samuel M. Rosamond, III, Boggs, Loehn & Rodrigue, New Orleans, for defendant-appellee Commercial Union Ins. Co.
James F. Holmes and Geoffrey P. Snodgrass, Christovich & Kearney, New Orleans, for defendants-appellees Mine Safety Appliances Co. and Avondale Industries.
Before KLIEBERT, C.J., and GAUDIN and DUFRESNE, JJ.
This is an appeal in a tort suit arising out of the work-related silicosis of David Richardson, Sr., who died of lung cancer in 1982. The plaintiffs, David Richardson, Jr. and Linda Richardson Johnson, are the decedent's children. They appeal a judgment that granted an exception of prescription and dismissed their La.C.C. Art. 2315 1 survival action for damages suffered by their father as a result of the lung disease contracted during his 38-year employment with Avondale Shipyards, Inc. The plaintiffs' wrongful death claim for their own damages arising out of their father's death is pending in the district court and is not at issue on this appeal.
Defendants in the suit are decedent's employer, Avondale Shipyards, Inc.; nine individuals alleged to be executive officers, directors, and supervisory personnel of Avondale; several manufacturers of industrial safety masks, including Mine Safety Appliances Company; and various insurance companies alleged to be insurers of these parties.
In their petition and amended petition, the plaintiffs alleged that David Richardson, Sr. was employed at Avondale Shipyards, Inc. in various positions from approximately 1940 through March 1982; that in all jobs he was exposed to dangerously high levels of toxic fibers, asbestos, silica dusts and other inherently dangerous materials and irritants in the normal course of his work; and that, as a result of continued exposure to the toxic dust and fibers, the decedent contracted silicosis and other lung maladies that developed into lung cancer and respiratory failure, resulting in his death on April 2, 1982.
They alleged further that Avondale and its executive officers were or should have been aware of the danger to the decedent of lung disease related to fiber and dust exposure, but negligently and/or intentionally failed to advise him of the situation, thereby exposing him to continued harm and an aggravation of his condition. Plaintiffs asserted the defendant executive officers allowed the decedent to continue work as a sandblaster, although they knew the decedent suffered from chronic lung disease and sandblasting would be detrimental to his health. Specifically, they alleged the Avondale defendants failed to provide decedent with a safe working environment, failed to provide him with safe protective equipment, failed to maintain the protective equipment provided to him, failed to instruct him in proper use of the equipment, and allowed him to continue sandblasting and working in the high-density dust environment although they knew it would endanger his health.
In addition, they alleged that Avondale supplied safety masks to the decedent but these masks failed to protect him from exposure to the toxic dust and, therefore, the defendant manufacturers are liable for breach of warranty, improper and defective product design and manufacture, intentional misrepresentation of their products, failure to warn, and failure to provide proper instruction in use of the masks.
Finally, they alleged that Avondale's company doctors/medical officials or independent medical providers, who x-rayed the decedent in annual physicals over the years, negligently and/or intentionally failed to warn him of his lung maladies and the dangers inherent in his continuing to work in the dust-laden environment at Avondale, failed to advise him to seek proper medical treatment, and conspired with the Avondale defendants to withhold and suppress information concerning the health hazards of the dusts and fibers to which the decedent was exposed.
To establish their claim of prescription the defendants presented evidence in the form of medical records, depositions and affidavits. They argued that the decedent was diagnosed with silicosis in 1971, that as a result he was transferred from the position of chipper/grinder to crane operator to remove him from the sandblasting environment, and that he knew or had constructive knowledge of the job-related nature of his illness since 1971, yet failed to take any legal action.
In opposition, the plaintiffs asserted that the decedent was seen by more than 10 physicians employed by Avondale from 1968 through 1982, but none informed him his lung disease was related to or in any way caused by his employment environment. Rather, the only cause alleged by these physicians was the decedent's cigarette smoking. In addition, they contend that his transfer to crane operator did not remove him from the dusty environment and, thus, the injuries he sustained continued without abatement until he ceased employment shortly before his death. Finally, the plaintiffs argue that the Avondale defendants never disclosed information regarding the harmful work environment to the defendant. Although the plaintiffs referred in their memorandum to depositions of doctors other than those whose depositions the defendants filed, the plaintiffs attached only isolated pages from those depositions to their memorandum.
In granting the exception, the trial judge stated:
Okay. Relative to the exception of prescription regarding the survivorship action, I believe that the decedent had knowledge of the injury as far back as 1971 and, also, it was proven to me he had it in '77, in '79. The suit was filed in 1982. I believe that the decedent also knew that it was caused by his work; and, therefore, the exception is granted.
On appeal the plaintiffs contend the trial court erred in finding the survival action prescribed, alleging the evidence showed the defendants engaged in "overt acts to conceal the true nature" and job-related cause of the decedent's condition and in failing to apply the continuing tort theory because "the deceased continued to work in the same harmful work environment until a few months prior to his death." They also assert the court erred in failing to grant them leave to amend their petition "to cure the defect," as provided by La.C.C.P. Art. 934. Finally, they contend the court erred in granting summary judgment because there were disputed issues of material fact.
First, we find no merit to the assignment of error regarding the summary judgment, because the trial court ruled only on the exception of prescription and made no mention of the defendants' alternative motion for summary judgment. In view of the granting of the exception, no ruling on summary judgment was necessary and none was made.
Thus, the issues before us are (1) whether the "continuing tort" doctrine applied to postpone the running of prescription; (2) whether the defendants proved that the decedent knew or had constructive knowledge of the employment-related nature of his disease more than one year prior to his death; and (3) whether the trial court should have permitted plaintiffs to amend their petition pursuant to La.C.C.P. Art. 934.
Delictual actions are subject to a liberative prescription of one year, which begins to run from the day the...
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