Rodrigue v. Dixilyn Corp.

• Decision Date: 03 July 1980
• Docket Number: No. 78-2654,78-2654
• Citation: 620 F.2d 537
• Parties: Louis J. RODRIGUE, Jr., Plaintiff-Appellant, v. DIXILYN CORPORATION, Defendant-Appellee, Placid Oil Company, Defendant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 537

620 F.2d 537

Louis J. RODRIGUE, Jr., Plaintiff-Appellant, v. DIXILYN CORPORATION, Defendant-Appellee Placid Oil Company, Defendant.

No. 78-2654.

United States Court of Appeals Fifth Circuit.

July 3, 1980.

Carl J. Schumacher, Jr., New Orleans, La., for plaintiff-appellant.

Peter L. Hilbert, John E. Galloway, New Orleans, La., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before WISDOM, FAY, and TATE, Circuit Judges.

TATE, Circuit Judge:

The plaintiff, Louis J. Rodrigue, Jr., was injured while working offshore when he fell through a hole in a drilling rig owned by the defendant Dixilyn Corporation. He sues Dixilyn, urging both negligence and strict liability as theories of recovery. The jury found the hole in Dixilyn's rig to be an unsafe and dangerous condition and, additionally found both plaintiff and defendant to be negligent. In accord with jury instructions which had indicated that contributory negligence on the part of the plaintiff that proximately caused his injury would relieve the defendant under both negligence and strict liability theories of liability, judgment was rendered for the defendant Dixilyn. On appeal, the plaintiff argues that the jury was erroneously instructed that under Louisiana law contributory negligence would be a defense to strict liability for damage occasioned by a defective thing under Civil Code Article 2317. We agree with the plaintiff's contention, and we therefore reverse and remand.

I

The accident occurred about 1:00 a. m. on a level of Dixilyn's drilling rig that the day before had been transferred to a drilling platform owned by another company (Placid). The plaintiff Rodrigue, an employee of the owner (McDermott) of a drilling crane assisting in the operation, fell though a small (3' X 4') unguarded hole cut out in the walkway grating around the large center hole used for the drilling pipe. ¹ He suffered injuries when he fell to the floor of the next level. Rodrigue, who had come on duty at 10:30 p. m., had not previously had the opportunity to observe the area. That the opening through the floor was unusual and not-to-be-expected is partially corroborated by the circumstance that, immediately after Rodrigue fell through it, a co-worker also fell into it while using the walkway. (Fortunately, the latter caught the edges of the hole and was able to avoid falling to the deck below.) The jury finding that the open hatch or hole created a dangerous condition is clearly supported by the evidence.

At the time of the accident, the floor was in darkened or (as the district court's questioning educed) semi-lighted condition. Dixilyn's primary defense as to any strict liability for damages resulting from Rodrigue's fall is that Rodrigue was contributorily negligent in proceeding to work in an area that was not illuminated.

Evidence in the record may support the jury finding that Rodrigue himself was contributorily negligent (and thus barred from recovery) e. g., he proceeded on the walkway despite the lack of illumination, or with possibly insufficient care under the circumstances of inadequate illumination. Thus, if contributory negligence ² were a bar to recovery, we might be required to affirm the denial of recovery. On the other hand, if instead only Rodrigue's assumption of the risk ³ will defeat his recovery, Rodrigue should have recovered under the findings of the jury, since the facts reflected by the record do not show any basis for Rodrigue's subjective knowledge of or appreciation of the risk so as to constitute his assumption of it. As summarized by Louisiana's Professor Crowe: "The essence of assumption of the risk is twofold: first, knowledge and appreciation of a danger, and second, a voluntary encountering of it. The essence of contributory negligence is simply carelessness." Crowe, The Anatomy of a Tort, 22 Loyola (La.) L.Rev. 903, 915 (1976). See also F. Stone, 12 Louisiana Civil Law Treatise: Tort Doctrine, Section 51 (1977).

II

The trial judge instructed the jury that an owner-custodian of a thing may be held liable for damage caused by a defect in the thing, despite the absence of negligence or intent. According to the judge, "(t)he liability arises from (the custodian's) legal relationship to the object, whose defect created an unreasonable risk of injury to others." Upon concluding his instructions on possible bases of liability, the judge broached the subject of defenses: "If you find that Dixilyn was either negligent in the breach of its duty or at fault as the custodian of the rig, . . . it is necessary for you to consider the defense of Dixilyn that the plaintiff himself was guilty of contributory negligence. . . . In a case of this kind proof by the defendant by a preponderance of the evidence of any negligence on the part of the plaintiff which was a proximate cause of the accident bars the plaintiff's recovery as a matter of law, even though the defendant may also be found to have been negligent or at fault as the custodian of the rig in question." (Emphasis added.)

The plaintiff did not object to these instructions at trial, but he now claims that they are incorrect statements of the Louisiana law insofar as they indicate that contributory negligence would exonerate a defendant from strict liability for damage caused by a defect of a thing for which he was responsible. The plaintiff asks the court to apply the plain error doctrine to permit him to hurdle the Rule 51 barrier to such belated objection to the instructions.

On several occasions this court has reversed on the basis of erroneous jury instructions that without objection had been given at trial. Jamison Co., Inc. v. Westvaco Corp., 526 F.2d 922 (5th Cir. 1976); Industrial Development Board of Town of Section, Ala. v. Fuqua Industries, Inc., 523 F.2d 1226 (5th Cir. 1975); Sheppard Federal Credit Union v. Palmer, 408 F.2d 1369 (5th Cir. 1969); Chagas v. Berry, 369 F.2d 637 (5th Cir. 1966), cert. denied, 389 U.S. 872, 88 S.Ct. 161, 19 L.Ed.2d 154 (1967); Mondshine v. Short, 196 F.2d 606 (5th Cir. 1952); Dowell, Inc. v. Jowers, 166 F.2d 214 (5th Cir. 1948); see generally, 9 C. Wright and A. Miller, Federal Practice & Procedure § 2558, p. 672 (1971). In each case, we have been unwilling to perpetuate, by reason of the Rule 51 ⁴ contemporaneous objection requirement, a miscarriage of justice resulting from an instruction based on fundamental error; we therefore invoked the plain error doctrine to correct the mistake made by court and counsel below.

The doctrine is not a routine by-pass to Rule 51, however. The criterion for application of this doctrine is "certainly not whether (this) court approves or does not disapprove the results of the case." Sheppard Federal Credit Union v. Palmer, 408 F.2d at 1371. Plain error is found, however, if "the deficient charge is likely responsible for an incorrect verdict which in itself creates a substantial injustice." Jamison Co., Inc., v. Westvaco Corp., 526 F.2d at 933. ⁵

To merit reversal on this point, therefore, the plaintiff must establish that the instruction was an incorrect statement of law and that it was probably responsible for an incorrect verdict, leading to substantial injustice. Under the pre-comparative negligence Louisiana law, ⁶ a jury finding of contributory negligence in a tort suit precludes any recovery on the part of the plaintiff. Furthermore, the alleged contributory negligence of this plaintiff appears to be the only defense to strict liability under Article 2317 available in light of the answers of the jury to the individual interrogatories in this case. ⁷ Thus, if the trial judge incorrectly stated the applicability of contributory negligence as a defense to Article 2317 strict liability, the instruction led to an incorrect verdict and the substantial injustice of no recovery to the injured plaintiff despite his clear entitlement to same. ⁸

III

Article 2317 of the Louisiana Civil Code provides: "We are responsible, not only for the damage occasioned by our own act, but for that which is caused by . . . things which we have in our custody . . . ." In 1975, reversing prior jurisprudence to the contrary, the Louisiana Supreme Court held that this article created strict liability for damage caused by defects in a thing. Loescher v. Parr, 324 So.2d 441 (La.1975). The court held that, by reason of the responsibility imposed by this code article, the custodian or owner of a thing is responsible for damages caused through a vice or defect of the thing, without personal negligence on his part "legal fault . . . being based upon the breach of his legal obligation to keep his thing in such condition or such control that it does no damage to others." 324 So.2d at 447-48. A vice or defect of the thing is a condition which causes an "unreasonable risk of injury to another", and the "fault (of the person responsible for the thing) rests upon his failure to prevent the risk-creating harm and upon his obligation to guard against the condition" that creates the unreasonable risk of injury to others. 324 So.2d at 446-47. ⁹

In recognizing the Article 2317 strict liability rule, the court also noted the available defenses, which are likewise applicable to other strict liability causes of action liability may be avoided only by proof that the damage was caused by (a) the fault of the victim, (b) the fault of a third person, or (c) an irresistible force. 324 So.2d at 445, 449. In Loescher, only the latter defense was at issue; in rejecting it, the court noted that exculpation could only thereby be provided by "an irresistible cause or force not forseeable, usually a vis major or act occasioned exclusively by the violence of nature without the contribution by legal fault of any human being." 324 So.2d 449. Subsequently, in explaining the fault of a third person that might exculpate the custodian or owner of the similar strict liability under Article 2322,...