Sider v. Robin Temporary Service

• Decision Date: 09 November 1987
• Docket Number: No. 87-CA-328,87-CA-328
• Citation: 515 So.2d 1123
• Parties: Richard SIDER v. ROBIN TEMPORARY SERVICE, et al.
• Court: Court of Appeal of Louisiana — District of US

Page 1123

515 So.2d 1123

Richard SIDER v. ROBIN TEMPORARY SERVICE, et al.

No. 87-CA-328.

Court of Appeal of Louisiana Fifth Circuit.

Nov. 9, 1987.

Rehearing Denied Dec. 17, 1987.

Writ Denied Feb. 12, 1988.

Paul G. Aucoin, Vacherie, for Richard Sider, plaintiff-appellant.

Lemle, Kelleher, Kohlmeyer, Dennery, Hunley, Moss & Frilot, James F. Shuey, New Orleans, for The Valley Line Co. and A & M Fleeting & Towing, Inc., defendants-appellees.

Before CHEHARDY, GRISBAUM and WICKER, JJ.

WICKER, Judge.

Richard Sider (Sider) plaintiff/appellant filed a claim pursuant to the Jones Act, and alternatively, Louisiana negligence law as to executive officers, safety personnel and co-employees against defendants/appellees A & M Fleeting and Towing, Inc. (A & M) and the Valley Line Company (Valley). ¹ At the close of Sider's case-in-chief the trial judge granted defendants/appellees' motion for involuntary dismissal pursuant to L.S.A.-C.C.P. Art. 1672 and rendered judgment in favor of defendants/appellees on November 17, 1986. From this adverse judgment, Sider appeals. We affirm.

On March 15, 1983 Sider was assigned by Robin, a temporary labor service, to clean barges at A & M's barge-washing facility located on the Mississippi River near Vacherie, Louisiana. While cleaning a barge owned by Valley, he fell from a ladder while carrying a siphon plate weighing approximately 15 pounds.

On September 14, 1983 Sider filed a suit against the following defendants: (1) Robin; (2) Valley; (3) A & M; (4) Armant Fleet; (5) A B C Corporation (the owner of the barge on which he was injured); (6) Executive officers and safety personnel of each of the above-named defendants; (7) Lloyd and/or British Companies, the Insurers of Valley and A & M, and (8) Insurance Company of North America (INA), Robin's insurer.

In his petition, Sider sued for Jones Act damages pursuant to 46 U.S.C.A. Section 688 and in the alternative under Louisiana Negligence Law as to executive officers, safety personnel and coemployees.

On September 12, 1984 a motion for summary judgment was filed on behalf of Valley and A & M seeking to dismiss the Jones Act claim. On October 18, 1985, Robin joined in that motion. On October 23, 1985 the trial judge denied the motion for summary judgment, referring the matter to the merits. ²

On July 1, 1986 a partial motion to dismiss was granted dismissing by compromise Robin and its insurer, INA.

At the close of Sider's case-in-chief, the trial judge granted defendants' motion for involuntary dismissal on November 17, 1986.

Sider now specifies the following errors:

1. That the trial court erred in granting defendants' motion for involuntary dismissal by failing to address or rule on each and every cause of action presented by plaintiff;

2. That the trial judge erred in failing to find seaman status;

3. That the trial judge erred in finding that plaintiff was the "borrowed employee" of A & M, thus precluding Sider from asserting his rights pursuant to the Louisiana Negligence Law as it pertains to the negligent actions of executive officers, safety personnel and co-employees;

4. That the trial court erred in not allowing plaintiff to pursue his negligence action as it pertained to negligent acts of executive officers, safety personnel and co-workers of the defendant, Valley, when in fact the court made no finding that Sider was Valley's "borrowed employee", and when that was their only defense against such an action;

5. That the trial judge erred in not allowing testimony concerning the corporate structure of Chromalloy American Corporation and its wholly owned subsidiaries, when answers to these questions were within the knowledge of the witness testifying at the time;

6. That the trial court erred in not allowing Susan Smith to testify within her field of expertise concerning the functional disability of plaintiff and furthermore in not allowing plaintiff to offer such testimony in the form of proffer; and

7. That the trial court erred in failing to grant plaintiff a new trial.

ROBIN'S RELATIONSHIP WITH A & M:

George W. Fairfield (Fairfield) testified that on the date of Sider's accident, he (Fairfield) was part-owner and manager of Robin. He described Robin as a temporary help service which furnished workers to customers for short or long term jobs on either a regular or irregular basis.

In Sider's case, A & M was the customer. A & M was charged for the services performed by Sider; however, Sider was paid by Robin.

Robin had agreed to send men to A & M's Armant Fleet of barges located in Vacherie, Louisiana, on an as-needed basis for the purpose of washing barges.

The agreement between Robin and A & M was in effect two months before the accident.

William Fancher (Fancher), A & M's fleet superintendent corroborated Fairfield's testimony regarding the agreement between A & M and Robin. Fancher testified that A & M used temporary help for seven or eight months on an as-needed basis. In October or November, 1983, A & M discontinued using Robin until 1986.

Either Fancher or Lewis Rowe (an Assistant Manager/Superintendent for Valley) would contact Robin to send men to wash barges. Fancher further testified that only A & M's deckhands would tie or untie the barges. Rowe testified that the men from Robin were used strictly for washing barges.

Anthony Fletcher, the barge-washer foreman, also testified that when the barge-washing was completed he would send the temporary men home.

According to Rowe, A & M is part of the Valley Line/Chromalloy Corporation; however, Rowe did not know the relationship between Valley and A & M. Mr. Shuey, Counsel for Valley and A & M stated for the record that "A & M Fleeting and Towing is a domestic Corporation that is either wholly owned by the Valley Line Company or by Chromalloy American Corporation, I don't know which."

Fairfield stated that Robin's employees have to be present at its offices at 5:00 A.M. or early enough to go out on a job. Robin sends labor out to fulfil a customer's order. Robin gave no training to its employees nor did Robin test the employees in any way to determine whether they could wash barges. A & M determined whether the Robin employee met its needs. Additionally, A & M supplied equipment and tools. The only items furnished by Robin were hard hats, boots or shoes. Furthermore, A & M supervised the Robin employees.

Sider also testified that on March 15, 1983, Robin sent him to A & M to wash barges in Vacherie. When he arrived at A & M he received instructions from a supervisor who spoke to the entire group of men.

Both Rowe and Fairfield testified that if a Robin employee had performed satisfactorily, A & M would request that individual to return. Fairfield testified that Sider was actually filling a spot for Chapman who had worked at A & M previously but who failed to show at Robin on the date of the accident. If Chapman had shown on that date he would have been given preference. Moreover, Fletcher testified that A & M would check "yes" or "no" as to whether the men were needed the next day.

Sider testified that he was 33 years of age on the date of the accident. He began working for Robin in 1982 doing physical labor. The jobs he had for Robin prior to the A & M job were those of a firewatcher, a painter and chipper of a rig, and general labor. He had never washed barges before the A & M assignment.

Rowe explained that A & M is a barge cleaning and repair company. A & M does not own any barges; it strictly services barges at any of its three cleaning locations. The A & M site at which Sider was injured was known as the Armant Fleet at Vacherie, Louisiana.

Rowe stated that approximately 100 barges are located there each day. He further noted that probably 100 barges were at the Armant Fleet the day Sider was injured. Fancher testified that as many as 160 or 170 barges were probably there in March, 1983 when the accident occurred.

Fletcher stated that the barges in the fleet were floating on the Mississippi River. The barges were tied to a spar barge. Fancher described spar barges as permanent barges which, although they do float, do remain in place. Both Fletcher and Fancher testified that the barges had been recently unloaded and were at A & M's facility to be washed before reloading.

According to Fancher, A & M could wash 15 barges in one day. Thus, the composition of the barges would change daily. He also stated that A & M does not exclusively service barges owned by Valley, the owner of the barge on which Sider was injured; it services other lines as well.

PROCEDURE FOR CLEANING BARGES:

Fletcher testified that his immediate supervisor, Rowe, was in charge of establishing the safety procedures to be used at the barge-washing facility and that Rowe was responsible for instructing the Robin personnel who were working for A & M. Rowe testified that he, Rowe, would give Fletcher the work assignment and that Fletcher would then assign men to a barge.

According to Fletcher, although a safety meeting would be called periodically to discuss how to tie ladders and how to pull up heavy objects, this meeting was not called every day. Fancher testified that Fletcher was responsible for seeing that the ladder was tied properly and that Fletcher was in charge of instructing the crew on the tying off of the ladder. Fletcher felt that it was necessary for safety that the ladder be tied properly; however, he could not recall whether he mentioned the proper tying procedure on the date of the accident.

Fancher stated that while a barge was present at the A & M facility, A & M was responsible for it. According to Fletcher, A & M supplied the ladders, pumping equipment, hoses, squeegees and shovels used in the cleaning process. He described the ladders as 20-foot aluminum single-pieces with a rope woven into each of them. In fact, Fletcher was in charge of seeing that the ropes were woven into each ladder. Fancher further described the ladder as having a...