Thomas v. W & W Clarklift, Inc.
| Decision Date | 12 January 1984 |
| Docket Number | No. CA-0685,CA-0685 |
| Citation | 444 So.2d 1300 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | John THOMAS v. W & W CLARKLIFT, INC. and Reliance Insurance Company. |
Harold B. Carter, Jr., Diane K. Zink, Montgomery, Barnett, Brown & Read, New Orleans, for third party plaintiffs.
Daniel J. Caruso, Michael R. Daigle, Simon, Peragine, Smith & Redfearn, New Orleans, for third party defendants.
Before REDMANN, C.J., and GULOTTA and AUGUSTINE, JJ.
W & W Clarklift, Inc. completely overhauled a used forklift truck and sold it to Dennis Sheen Transfer, Inc. Three weeks later Sheen employee John Thomas was seriously injured when the forklift's 6,000- pound counterweight fell upon him as that forklift was raised a few inches by another. Thomas sued Clarklift, who third-partied the John Leckerts, Sr. and Jr., the principal executive officers of Sheen. Thomas's demand was settled. The third-party demand was dismissed after trial on the merits. Clarklift now appeals.
The question is whether the Leckerts were also liable to Thomas for his damages so as to make them liable in solido with Clarklift, La.C.C. 2091, entitling Clarklift to contribution from the Leckerts, C.C. 2103, unless "the affair ... concern only one of the co-obligors in solido, [in which case] that one is liable for the whole debt towards the other codebtors ...," C.C. 2106. We conclude that any liability the Leckerts might have is not the result of their personal fault but only of a vicarious or strict liability for the fault of Clarklift, and that therefore, in the words of C.C. 2106, the affair concerns only Clarklift and Clarklift is liable for the whole debt towards the Leckerts. We affirm the rejection of Clarklift's demand for contribution from the Leckerts.
On this particular forklift (unlike on others Sheen had, whose counterweights are mounted with four bolts), the counterweight is mounted by letting it down upon two heavy, somewhat wedge-like brackets that angle upwards from the forklift frame and fit snugly into two matching-angled recesses in the counterweight itself. The counterweight has a vertical, molded shape that appears to be a continuation of the body of the forklift. Once it is properly positioned, gravity holds it against the frame, although it is intended to be finally secured by a single bolt, 12 or 13 inches long and an inch or more in diameter, that is recessed five inches into the counterweight, 16 inches above floor level, and screws through the counterweight into the frame.
Clarklift concedes on appeal that the securing bolt was not present on the forklift in question when delivered to Sheen.
The forklift became stranded on the concrete floor of a 70' by 120' shed in Sheen's equipment yard when its drive wheel lost contact with the floor, either because the forklift lodged atop a wooden chock used to keep trailers in place, as Sheen employee Frank Burns testified, or because the wheel went into a shallow depression in the floor, as John Thomas testified. To free the forklift, Burns intended to lift it with another forklift just enough to enable Thomas either to remove the chock from underneath or to place a chock beneath the wheel to restore traction. When Burns lifted with the second forklift, the first forklift's unbolted counterweight was lifted off its supporting brackets and fell upon Thomas, causing his injuries.
Clarklift argues that the Leckerts, as executive officers of Sheen, had the responsibility of discharging Sheen's statutory duty to provide reasonably safe equipment and a reasonably safe place to work, La.R.S. 23:13, and breached that duty by allowing wooden chocks to be on the shed floor, by failing to inspect the forklift or to have it inspected, and by failing to instruct subordinate employees in proper forklift operation.
The Leckerts would be personally liable if they neither prevented nor reasonably delegated to a subordinate the prevention of a dangerous floor condition that was a legal cause of Thomas's injury. But that is not our case. Our less than ideal floor condition may satisfy the "but for" element of duty-risk analysis--as does Thomas's having got out of bed that day--but no other element. It is true that the forklift would not have become stranded if the floor had been level and no chock had been present (just as Thomas would not...
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...(to the buyer) in damages. La.C.C. Article 2545; Chappuis v. Sears Roebuck & Co., 358 So.2d 926 (La.1978); Thomas v. W & W Clarklift, Inc., 444 So.2d 1300 (La.App. 4th Cir.1984), writ denied 448 So.2d 113 (La.1984). Nevertheless, a seller is not required to minutely inspect a product prior ......
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