Wilson v. Hartzman
| Citation | 373 So.2d 204 |
| Decision Date | 05 June 1979 |
| Docket Number | No. 10219,10219 |
| Court | Court of Appeal of Louisiana (US) |
| Parties | Devril R. WILSON v. Edwin HARTZMAN, Al Bossier, Eddie Blanchard, Chuck Starkingburg, Paul Tregre, Charles Calzada, Charles Forrester, Bill Stratton, Dalvin Breaux, Joe Digiovani and John Chantery. |
Larry P. Boudreaux, Thibodaux, for plaintiff-appellant.
Hammett, Leake, Hammett, Hulse & Nelson, Craig R. Nelson, New Orleans, for defendants-appellees.
Lemle, Kelleher, Kohlmeyer & Matthews, Allen R. Fontenot, New Orleans, for third party defendant-appellee, Aetna Casualty & Surety Co.
Christovich & Kearney, William K. Christovich, New Orleans, Bernard, Cassisa, Babst & Saporito, Paul V. Cassisa and B. Frank Davis, Metairie, for defendant-appellee, American Optical Corp.
Ralph S. Johnson, New Orleans, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, James L. Selman, II, New Orleans, for defendant-appellee, Mine Safety Appliance Co.
Drury & Lozes, Felicien P. Lozes, New Orleans, for defendant-appellee, Commercial Union Insurance Co.
Before LEMMON, SCHOTT and GARRISON, JJ.
The sole issue raised by plaintiff's appeal is whether his tort suit against his employer's executive officers and the manufacturers of certain safety equipment, seeking recovery for silicosis contracted on the job, was barred by C.C. art. 3536's prescription of one year.
Plaintiff, who was employed by Avondale Shipyards, Inc. from 1962 through 1975 in the painting and sandblasting department, testified: In 1968 his physician diagnosed silicosis resulting from exposure to silica dust and advised plaintiff to remove himself from that environment; he discussed the problem with his "superintendents" (he named some of the defendants) and was promised that he would be moved from that department; in 1972, after he underwent hernia surgery, the surgeon noted silicosis on X-rays and recommended to Avondale's safety department that he be removed from the sandblasting operations immediately; he was again assured by several defendants that he would be transferred and continued working on the basis of these assurances; finally, in 1975 his physician found the silicosis had advanced to a point where he was advised to stop working completely, and his last day of work was November 11, 1975.
Plaintiff's original petition, seeking recovery against Avondale's executive officers on the basis that they required him to work under hazardous conditions without furnishing adequate safety devices, was filed on November 12, 1976. 1 By amended petition plaintiff subsequently joined American Optical Corporation and Mine Safety Equipment Company, alleging those defendants had manufactured defectively designed or constructed respiratory equipment and protective hoods which caused plaintiff's industrial disease.
All defendants filed exceptions of prescription. The trial court maintained the exceptions after an evidentiary hearing and dismissed the suit.
The only judgment before the court for review is one maintaining an exception of prescription. For purposes of this appeal, therefore, we assume the acts or omissions complained of constituted torts for which plaintiff would be entitled to recovery by timely suit. 2
C.C. art. 3537 provides that C.C. art. 3536's period of prescription begins to run from the date the damages were sustained. Thus, while prescription as a general rule begins to run from the date of commission of the tort, in those cases in which the damages are not immediately apparent, it has often been held that prescription begins to run from the time a reasonable person under similar circumstances would have become aware of both the tort and the damages. See Stone, Louisiana Civil Law Treatise Tort Doctrine § 120 (1977).
Another exception to commencement of prescription on the date of the tort is the situation in which the tortious conduct that is the operating cause of the damages is a continuing act, giving rise to successive damages from day to day. In such a case prescription does not commence to run until the continuing cause of the damages is abated. Craig v. Montelepre Realty Co., 252 La. 502, 211 So.2d 627 (1968); Devoke v. Yazoo & M. V. R. R., 30 So.2d 816 (La.1947); DiCarlo v. Laundry & Dry Cleaning Service, 178 La. 676, 152 So. 327 (1934).
In the Craig case defendant started construction of a building on property adjacent to that of plaintiff's in March, 1963, and the pile driving and other construction activities caused damage to plaintiff's property through April, 1963. The Supreme Court held unanimously that the April 17, 1964 suit was timely to recover All damages caused by the construction activities, even those damages sustained more than a year prior to April 17, because the activity which was the operating cause of the damages was a continuing tort which caused continuing damages.
In the Devoke case the property owners in the area of defendant's roundhouse sought to recover damages from pollutants emitted by the railroad operations. The Supreme Court rejected the defense of prescription as to damages incurred over one year prior to the filing of the suit on the basis that the act which was the operating cause of the damage was continuing. The court further distinguished those cases in which the damage was progressive, but the operating cause "was not a continuous one of daily occurrence". 3
In the DiCarlo case the vibrations from defendant's laundry plant allegedly caused damage to plaintiff's health and property for a period of three years. Defendant filed an exception of prescription to that part of the claim involving damages incurred more than a year prior to the filing of the suit. The court overruled the exception on the basis that the tort was "of a continuing nature and of daily renewal".
As to the claim against the executive officers in the present case (putting aside considerations of whether a breach of duty caused tortious exposure of plaintiff to hazardous materials and whether recovery is barred by assumption of risk), we note that plaintiff's claim for any damages caused on the last day of work was undoubtedly not prescribed. As to the damages previously caused, the complained-of acts of the executive officers continued daily until plaintiff's last day of work at Avondale. Thus, prescription was suspended (or did not begin to accrue) during the time that the continuing wrongful acts caused plaintiff's continuing exposure, and the prescriptive period began to run only from the time of cessation of the continuing wrongful acts. 4
We reason...
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... ... Yazoo & M.V.B. Co., 211 La. 729, 30 So.2d 816 (1947); DiCarlo v. Laundry & Dry Cleaning Service, 178 La. 676, 152 So. 327 (1933); Wilson v. Hartzman, 373 So.2d 204 (La.App. 4th Cir.1979), writ denied 376 So.2d 961 (1979); Landry v. Pierre Part Natural Gas Company, Inc., 344 So.2d ... ...
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...a single wrong which gives rise to and is cognizable in a single action, rather than a series of successive actions.” Wilson v. Hartzman, 373 So.2d 204, 207 (La.App. 4th Cir.1979). In such situations, prescription does not begin until the last act occurs or the tortious conduct stops. See i......
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