Thompson v. Tuggle

• Decision Date: 18 March 1986
• Docket Number: No. 84-856,84-856
• Citation: 486 So.2d 144
• Parties: Prod.Liab.Rep. (CCH) P 11,055 Anne Shirley THOMPSON, et al., Plaintiffs-Appellees, v. Lloyd H. TUGGLE, et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 144

486 So.2d 144

Prod.Liab.Rep. (CCH) P 11,055

Anne Shirley THOMPSON, et al., Plaintiffs-Appellees, v. Lloyd H. TUGGLE, et al., Defendants-Appellants.

No. 84-856.

Court of Appeal of Louisiana Third Circuit.

March 18, 1986.

Rehearing Denied April 15, 1986.

Phillip L. McIntosh, Monroe, of Snelling, Breard, Sartor, Inabnett & Trascher, for defendants-appellants.

Russell T. Tritico, Raggio, Cappel, Chozen & Berniard, Paul Foreman, Lake Charles, for plaintiffs-appellees.

Before DOMENGEAUX, GUIDRY, FORET, STOKER and KNOLL, JJ.

KNOLL, Judge.

In this products liability case, one of the defendants, Beard-Poulan Division of Emerson Electric Company (Poulan), appeals the trial court's judgment awarding the widow and daughter of Howard Thompson (plaintiffs) $245,800 and $10,000 respectively for his wrongful death, which occurred when the Poulan Model 4200 bow blade chain saw he was using kicked back into his neck and severed his jugular vein. The plaintiffs also brought this action against Lloyd Tuggle, who was the senior vice-president in charge of engineering for Poulan and was responsible for the design and development of the bow saw in question. The trial court dismissed plaintiffs' claim against Tuggle, finding that Poulan's decision to forego the installation of chain brakes on chain saws sold in this country was a marketing decision, not an engineering decision, for which Tuggle was not responsible. In answer to the appeal, plaintiffs do not question this determination, but ask for an increase in damages.

Georgia Casualty & Surety Company intervened to recover workmen's compensation benefits it paid to plaintiffs. All parties stipulated that it was entitled to $30,277.15 to be paid in preference out of any award made to plaintiffs; the trial court entered judgment accordingly.

Plaintiffs' claim against Poulan is based on negligence and, in the alternative, strict liability. Plaintiffs contend that the chain saw was defective because it was not equipped with a chain brake, and further, that the manufacturer failed to adequately warn of the dangers associated with kickback. Plaintiffs answer the appeal, seeking an increase in damages.

Poulan contends on appeal that the trial court erred in finding that: (1) Thompson's fatal injuries were caused by kickback of his saw and that a chain brake, which Poulan negligently failed to incorporate in its chain saw design, would have been effective in preventing the fatality; (2) the kickback phenomenon is a defect which renders chain saws unreasonably dangerous; (3) Poulan had a duty to warn Thompson of the dangers associated with kickback, and that Poulan's warnings were inadequate; and (4) Thompson was guilty of neither contributory negligence nor assumption of the risk.

We amend to increase quantum and, as amended, affirm, finding no manifest error in the trial court's determinations.

FACTS

Howard Thompson, 57 years of age, was a part-time professional pulpwood cutter with approximately five years experience. He was also a full-time employee of the Many Police Department where he worked from midnight until 8:00 a.m. Upon completion of his shift, he cut pulpwood for six to seven hours. This had been his routine for the past five years. Prior to the accident, Thompson had been using a power bow saw for at least four years.

On April 7, 1981, Thompson worked the midnight to 8:00 a.m. shift with the police department and then went home. Shortly thereafter, he left his home, picked up his wood stacker, Isiah Lynch, and went to a wood yard in Fisher, Louisiana, where he trimmed a load of pulpwood using a Model 4200 Poulan chain saw equipped with a bow guide; the pulpwood logs were too long to be accepted by the wood yard and, therefore, had to be trimmed. Thompson and Lynch then went to the woods to trim another load of wood. In both instances, the logs were trimmed while loaded on the pulpwood truck.

Using his truck, Thompson lowered the tailgate of his pickup truck and backed up to the pulpwood truck so that the trucks were positioned end to end, approximately 2 to 2 1/2 feet apart. He then positioned himself on the tailgate of his pickup truck to begin cutting.

Thompson instructed Lynch to pick up the blocks of wood that fell to the ground as he trimmed the logs. There were wood blocks on the ground when they arrived so Lynch began to pick them up. When Thompson started his chain saw, Lynch noticed that the cap for the oil tank was off and oil was spilling. Thompson turned the saw off, got off of the tailgate, wiped the oil he had spilled, put sawdust on the tailgate where he had spilled oil, refilled the oil reservoir and replaced the cap. He then got back on the tailgate, on the passenger side of the pulpwood truck and the driver's side of his pickup truck, and restarted the bow saw. He proceeded to trim the logs, standing with his left leg on the bed of the pickup truck and his right leg extended forward with his right foot on the right rear dual tires of the pulpwood truck. The exact position of the bow saw while Thompson was trimming the pulpwood is not established by the evidence; however, the saw had to be extended forward in order for him to trim the logs in front of him.

Lynch was picking up blocks on the same side of the trucks where Thompson was trimming logs. When he realized that no blocks were falling to the ground, Lynch looked up and observed Thompson standing with his left hand over his eyes and the bow saw, still running, in his right hand. Blood was spurting from Thompson's neck. As Thompson began to fall, Lynch ran to call Lloyd Savell, the pulpwood contractor who employed Thompson. When Savell saw Thompson, Thompson was beginning to fall. His body was sagging and beginning to tilt. At first Savell thought Thompson was going to squat or sit down. Instead Thompson fell forward against the back stake of the pulpwood truck and slid down. He then fell to the ground and rolled over onto his back. Savell ran to Thompson, picked up one of his legs, moved the saw that was idling and turned the engine off. Apparently no one witnessed the chain saw make contact with Thompson's body. He was cut from his left ear to his right collar bone, severing the jugular vein. He died before the ambulance arrived.

CAUSATION

The burden of proving causation in products liability cases was clearly stated in DeBattista v. Argonaut-Southwest Ins. Co., 403 So.2d 26 (La.1981) as follows:

"[The] plaintiffs' burden is to prove causation by a preponderance of the evidence. This burden may be met either by direct or, as in this case, by circumstantial evidence. Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (1971); Naquin v. Marquette Cas. Co., 244 La. 569, 153 So.2d 395 (1963).

Taken as a whole, circumstantial evidence must exclude other reasonable hypotheses with a fair amount of certainty. This does not mean, however, that it must negate all other possible causes. Otherwise, the mere identification by the record of another possibility, although not shown to be causally active, would break the chain of causation. Weber v. Fidelity & Cas. Ins. Co. of N.Y., 259 La. 599, 608-09, 250 So.2d 754, 757 (1971)."

When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for its findings, a reviewing court should not disturb this factual finding in the absence of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The cause-in-fact of an injury is a factual question and the trial court's determination will not be disturbed unless it is manifestly erroneous. Prudhomme v. Nationwide Mut. Ins. Co., 465 So.2d 141 (La.App. 3rd Cir.1985), writ denied, 467 So.2d 1132 (La.1985).

In the instant case the trial court found that Thompson's fatal injury was caused by kickback, which occurred when the bow saw came into contact with a log behind the log he was trimming at the time. Poulan objects to this finding on the basis that there was no direct evidence that kickback caused the injury. It is well settled that the plaintiffs may meet their burden of proof by circumstantial evidence. DeBattista, supra. Because no one witnessed the bow saw come into contact with Thompson's body or what caused it, the trial court carefully and conscientiously analyzed the testimonies of the persons who immediately responded to the accident: Isiah Lynch, his wood stacker, testified that Thompson was in a standing position and had cut several pieces of wood on the lower side of the pulpwood truck just prior to the accident; Lloyd Savell, his employer, testified that he observed the location of the last log Thompson cut and that it was about even with Thompson's face; and Michael Jones, the emergency medical technician who investigated the accident, observed the fresh cut mark on the last log Thompson began cutting and its approximate location, and further observed Thompson's partial shoe print on the right rear dual wheel of the pulpwood truck. In addressing various other theories of causation proposed by Poulan, the trial court methodically stated:

"Defendants' counsel suggests several other possible causes of Thompson's fatal injury, all unrealted [sic] to any kick-back action by the bow saw. He suggests that Thompson was off-balance while operating the saw on this occasion, due to the alleged over extension [sic] of his right leg which was necessary for him to get the saw in contact with the pulpwood he was trimming and was unable to sufficiently control the saw, which was operating normally, resulting in the saw striking his body; that Thompson was holding the saw up at an excessive height while trimming the pulpwood, resulting in his inability to maintain proper control of the saw, which was operating normally, that Thompson's alleged fatigue, resulting from his having worked as a policeman the previous night hours caused him to lose control of the chain saw, resulting in the fatal injury to...