Thornhill v. Black, Sivalls & Bryson, Inc.
| Decision Date | 26 January 1981 |
| Docket Number | No. 80-C-1528,80-C-1528 |
| Citation | 394 So.2d 1189 |
| Parties | Ralph T. THORNHILL, Individually and as Administrator of the Estate of his Minor Son, Allen Arthur Thornhill v. BLACK, SIVALLS & BRYSON, INC. et al. |
| Court | Louisiana Supreme Court |
Emile C. Rolfs, III, Stephen H. Vogt, Durrett, Hardin, Hunter, Dameron & Fritchie, Baton Rouge, for plaintiff-applicant.
Owen, Richardson, Taylor, Mathews & Atkinson, Ben Louis Day, John B. Knight, Taylor, Porter, Brooks & Phillips, A. Michael Dufilho, Baton Rouge, McGlinchey, Stafford & Mintz, J. Michael Johnson, New Orleans, Voelker, Ragland, Brackin & Crigler, William B. Ragland, Jr., Lake Providence, Brumfield & Brumfield, William P. Brumfield, Baton Rouge, for defendants-respondents.
Ralph T. Thornhill, individually and as administrator of the estate of his minor son, Allen Arthur Thornhill, instituted this action against Screw Conveyor Corporation for damages for personal injuries sustained by Allen Thornhill when his leg became caught in a screw auger manufactured by Screw Conveyor. 1 At the time of his injury, Thornhill was working inside a silo owned by Clayton Grain Elevator, Inc. The silo contained a screw auger recessed in its floor. A solid metal cover prevented exposure to the rotating auger, except for three access openings which allowed stored grain and other materials to flow into the trough and effect transportation. While Thornhill was removing residual material from the wall of the silo, he inadvertently stepped into the rotating auger through an access opening causing severe damage to his leg which necessitated its amputation.
Screw Conveyor moved for a summary judgment on the ground that the pleadings, sworn affidavit and depositions of Otis Clyde Raley, the original owner and builder of the grain elevator, showed that there was no genuine issue as to material fact. In denying the summary judgment, the trial judge concluded that there was a question of what warnings Screw Conveyor should have provided to the purchaser of its screw auger. Subsequently, Screw Conveyor filed another motion for summary judgment, this one on the ground that the pleadings and deposition of Allen Thornhill showed that there was no genuine issue as to material fact. The trial judge granted summary judgment, stating in his reasons for judgment that Screw Conveyor had merely sold component parts to the then owner of the grain elevator and had not participated in the design, installation, construction or maintenance of the silo at any time in its history. Moreover, the modification to the auger cover which allowed the contents of the bin to enter were not made by Screw Conveyor. In addition, he found that the deposition of Allen Thornhill made it clear that he was aware of the danger of the auger and that he had been warned to be on guard of this danger. The trial judge noted that there is no duty to warn of a danger when the danger is obvious.
From a judgment dismissing Screw Conveyor as a defendant in the lawsuit, plaintiff appealed. The court of appeal, finding no genuine issue as to material fact and that Screw Conveyor was entitled to judgment as a matter of law, affirmed the granting of the summary judgment. 2 Upon application of plaintiff, we granted certiorari to review the correctness of that judgment. 3
The sole issue presented for our review is whether, based on the pleadings, affidavits, answers to interrogatories, depositions and other evidence filed by the parties pursuant to Screw Conveyor's motion for summary judgment, a genuine issue of fact was presented and whether mover is entitled to a judgment as a matter of law.
In its answers to interrogatories, Screw Conveyor stated that its only communication with the purchaser was the acceptance of a telephone order for sixty feet of trough, screw auger and cover and an invoice prepared at the time of shipment. When the materials were supplied, the only document which accompanied the materials was a copy of the invoice outlining the order. Screw Conveyor further stated that it made no recommendations regarding the placement of the access openings because it was neither consulted in the placement of the openings nor advised that such openings would be cut in the cover. No employees or representatives of Screw Conveyor were ever present at the grain elevator. These facts are corroborated by the deposition of Otis Clyde Raley. Raley stated that his brother placed the order with Screw Conveyor and that no employees or representatives of the company ever came to the grain elevator. In fact, Raley sent a truck to Screw Conveyor to pick up the parts of the conveyor system which were used in the construction of the two silos. The trough, which contained the screw auger and was covered by a metal cover, was recessed into the floor of the silo. To allow grain to fall into the auger, Raley had three openings made in the cover. Gate covers were constructed so that these access openings could be covered up. Raley did not recall receiving any instructions or plans with the parts or obtaining any advice from Screw Conveyor on how to set up a conveyor system. Plaintiff entered nothing into the record to contradict these facts.
From the deposition of Allen Thornhill, the following undisputed facts are disclosed. On the morning of Friday, November 12, 1976, Allen Thornhill, then sixteen years old, was working at the grain elevator. He was instructed by his supervisor to enter a silo and hit the sides of the silo with a shovel to cause soybeans and other matter to fall off the wall. Thereafter, the refuse would be placed in the access openings of the conveyor system for transportation to the outside. His supervisor informed him that the screw auger was operating and warned him to be careful not to fall into the access openings. Upon entering the silo, Thornhill saw the screw auger turning through the uncovered openings. He knew that he would be injured if he got his leg caught in the hole where the auger was turning. After working in the silo for about fifteen minutes, Thornhill inadvertently stepped back into one of the access openings....
To continue reading
Request your trial
-
Hopkins v. Sovereign Fire & Cas. Ins. Co.
...judgment to stand and in favor of a trial on the merits. Penalber v. Blount, 550 So.2d 577, 583 (La.1989); Thornhill v. Black, Sivalls & Bryson, Inc., 394 So.2d 1189 (La.1981); Chaisson v. Domingue, 372 So.2d 1225 (La.1979); Durrosseau, supra, at For the foregoing reasons, we affirm the sum......
-
Kelley v. Price-Macemon, Inc.
...1st Cir.1982) (same); Thornhill v. Black, Sivalls & Bryson, Inc., 385 So.2d 336, 338 (La.Ct.App. 1st Cir.1980) (same), aff'd, 394 So.2d 1189 (La.1981). In the case before us, Industrial moved for summary judgment on the issue of its liability as the seller of the auger-equipped ice bin on t......
-
Green v. Defelice
...of a genuine issue of material fact must be resolved against the mover and in favor of trial on the merits. Thornhill v. Black, Sivalls & Bryson, 394 So.2d 1189 (La.1981); White v. Baker Manor Nursing Home, 400 So.2d 1168 (La.App. 1st Cir.), writs denied, 403 So.2d 68 (La.1982); cf. Erco In......
-
Ouachita Nat. Bank in Monroe v. Gulf States Land & Development, Inc.
...issue as to material fact and that the mover is entitled to judgment as a matter of law. La.C.C.P. art. 966; Thornhill v. Black, Sivalls & Bryson, Inc., 394 So.2d 1189 (La.1981); Watson v. Cook, 427 So.2d 1312 (La.App. 2d Cir.1983). The mover for summary judgment has the burden of affirmati......