Opinion
No. 9794.
January 10, 1979. Rehearing Denied February 15, 1979.
APPEAL FROM CIVIL DISTRICT COURT, PARISH OF ORLEANS, NO. 76-8444, STATE OF LOUISIANA, HONORABLE OLIVER P. CARRIERE, J.
Giraud, Cusimano Verderame, Charles A. Verderame, New Orleans, for plaintiffs-appellant.
Adams Reese, Edward J. Rice, Jr., New Orleans, for defendant-appellee, Aetna Cas. Sur. Co.
Before SAMUEL, LEMMON and GARRISON, JJ.
Plaintiff filed suit against Ira Williams, an executive officer of the corporation which employed plaintiff as a steel worker, for damages resulting from injuries sustained on a construction project. After a trial on the merits judgment was rendered dismissing the suit, and plaintiff appealed.
Defendant Williams and his wife owned virtually all of the corporate stock, and he admitted he was "totally in charge" of the operation of the business. For one of the company projects Williams had ordered a shipment of steel reinforcing rods, which was to be delivered by truck. He visited the job site on the morning of the scheduled delivery, but left before the truck arrived. Williams had attempted to rent a crane for the purpose of unloading the truck, but was unable to secure one from his usual source, and he therefore instructed Gerald Cooley, the foreman on the job, to unload the truck by hand.
When the flatbed truck arrived, the steel was in bundles of various sizes, and the rods in each bundle were not necessarily of uniform length. Cooley and another employee placed "4-bys" (pieces of wood four-by-four inches square) against the side of the truck, intending to use pry bars to roll the bundles off the side of the truck, one at a time. The purpose of the 4-bys was to make the bundles fall away from the truck.
After Cooley and the other employee climbed onto the bed of the truck, one of the 4-bys fell. Plaintiff, who was on the ground performing other tasks at the job site, came over and realigned the 4-by. As plaintiff was walking away, the men on the truck began to roll a bundle of rods about 20 feet long off the side, and they then noticed for the first time that this bundle contained several rods about forty feet long that would strike plaintiff when the bundle fell off the truck. Unable to stop the rolling bundle, Cooley yelled a warning. Plaintiff began to run, but one of the longer rods "whipped around" and struck him in the head.
Plaintiff contends that defendant Williams was under a duty to utilize a method of unloading which was not unreasonably unsafe and that his failure to obtain a crane or to delegate that responsibility to his foreman caused this accident. However, while the evidence perhaps established that the accident would not have happened as it did if the unloading had been done by crane (since the movement of the crane probably could have been stopped when the workers noticed the longer rods extending from the bundle), the evidence fails to establish that the method of unloading by hand is unreasonably dangerous. Indeed, the only evidence is to the contrary.
Defendant Williams testified that unloading bundles of steel rods from a truck by hand is the general method for handling small or medium loads (the 12-ton load in this case being classified as a small load) and that a crane was generally used only for large loads and in "close" situations in which it was necessary to place bundles accurately for convenience of use. He further stated that unloading by crane was usually more economical, but that the risks of danger were at least equally as great as when the unloading was done by hand, noting that bundles unloaded by crane often move suddenly or swing around. There was absolutely no other evidence as to the safeness or unsafeness of either method of unloading.
Plaintiff correctly argues that the fact a certain method of procedure is generally used does not prove that the method is safe or reasonable. However, it was not defendant Williams' burden to prove that unloading steel by hand is safe; rather, plaintiff had the burden to prove this method was unsafe.
The handling of bundles of steel obviously involves risks of injury, but the method of unloading the bundles by hand was not obviously unsafe. Moreover, no expert testimony or other evidence was offered to establish the method was unsafe. We conclude plaintiff simply failed to prove that Williams breached any duty to plaintiff by failing to provide a crane. Indeed, all of the evidence indicates that the accident occurred because the employees set the bundle of steel in motion before noticing there were rods in the bundle long enough to hit plaintiff and that the accident would not have happened if the employees, in the exercise of due care, had noticed the longer rods earlier and refrained from moving the bundle until plaintiff was completely out of danger.
The judgment is affirmed.
AFFIRMED.
GARRISON, J., dissents and assigns reasons.
Upon concluding that the trial court's finding of contributory negligence on the part of the plaintiff was manifestly erroneous and not supported by the record, we are then remitted to a consideration of the possible liability of the executive officer, defendant Ira Williams. In my view the record in this case — examined in the light of the applicable law — supports a finding of liability on the part of the defendant, Williams, with regard to the injuries sustained by the plaintiff, Leon Williams.
Defendant, Ira Williams, testified that he was totally in charge of H W Steel Erectors and that he was familiar with the job his company was doing at Methodist Hospital.
It was his testimony that he had established no safety meetings for his employees and that there existed no safety program of any kind for his employees.
He felt that a crane was necessary for this operation because he made an effort to obtain one. Furthermore, as he testified, after failing to obtain one and prior to his departure from the scene, he did not delegate authority to his foreman to continue the effort to locate a crane. After ordering that the steel be unloaded by hand, he left the jobsite.
The record also indicated that Ira Williams knew that his men would be working in a very tight area and that he knew that the load of steel could normally be expected in bundles of all kinds, sizes and lengths. He even expected some bundles to weigh as much as two or three tons and to vary in mixed lengths of twenty-five to forty feet, without ever inspecting this load of steel, Ira Williams ordered his foreman to have it unloaded by hand and departed from the scene. It is significant that he admitted in his testimony that the accident would not have occurred had a crane been used.
Counsel for defendant/appellee has taken the position that unloading the steel by hand was a normal procedure. However, the fact that a practice is normal does not make it safe or non-negligent. "While customary practices may be relevant in determining negligence, they are not conclusive or controlling in the judicial determination of whether unreasonable risks have resulted from the conduct in question." Larned v. Wallace, 146 So.2d 434 (La.App. 3rd Cir. 1962), c.d. (La. 1963); Guilbeau v. Liberty Mutual Insurance Co., 338 So.2d 600 (La. 1976).
It was also the position of defendant/appellee that using a crane was no more safe than unloading tons of steel, of several different lengths, off the side of a truck by hand. This argument was based on the contention that no one could describe the method of unloading steel by hand as "unsafe" in as much as this was argued to be normal procedure. However, it is significant that Ira Williams, the foreman, Gerald Cooley and the employee, Elmer Davis, all testified that using a crane would have permitted control of the bundles of steel, whereas there was no corresponding control of these bundles of steel as they rolled off of the side of the truck while being unloaded by hand.
More specifically, the advantages of using a crane, as opposed to unloading steel rods by hand, as testified to by Ira Williams and foreman Gerald Cooley, are:
(1) The crane does not depend upon the force of gravity.
(2) As a crane would pick up a bundle of steel which could normally contain various lengths, the men would have an opportunity to find the longer pieces of steel and then guide them into place.
(3) The crane permits the men to control the bundles until they come to a rest and permits the men to control the location of the bundles.
It is clear that had a crane been used as Ira Williams initially intended, the removal of the steel from the truck would have been considerably safer than the unloading by hand which he subsequently ordered.
Under Canter v. Koehring, 283 So.2d 716 (La. 1973), the Louisiana Supreme Court spelled out the requirements for bringing an action against an executive officer. These criteria, which are applicable to the instant case inasmuch as executive officer actions were still permissible at the time, were as follows:
(1) The principal or employer owes a duty of care to the third person (which in this sense includes a co-employee), breach of which has caused the damage for which recovery is sought.
(2) This duty is delegated by the principal or employer to the defendant.
(3) The defendant officer, agent, or employee has breached this duty through personal (as contrasted with technical or vicarious) fault. The breach occurs when the defendant has failed to discharge the obligation with the degree of care required by ordinary prudence under the same or similar circumstances — whether such failure be due to malfeasance, misfeasance, or nonfeasance, including when the failure results from not acting upon actual knowledge of the risk to others as well as from a lack of ordinary care in discovering and avoiding such risk of harm which has resulted from the breach of the duty.
(4) With regard to the personal (as contrasted with technical or vicarious) fault, personal liability cannot be imposed upon the officer, agent or employee simply because of his general administrative responsibility for performance of some function of the employment. He must have a personal duty towards the injured plaintiff, breach of which specifically has caused the plaintiff's damages. If the defendant's general responsibility has been delegated with due care to some responsible subordinate or subordinates, he is not himself personally at fault and liable for the negligent performance of this responsibility unless he personally knows or personally should know of its non-performance or mal-performance and has nevertheless failed to cure the risk of harm. At 283 So.2d 721.
From Ira Williams own testimony, the first two criteria are met. He was fully in charge of the company's operation, even down to the jobsite details, and he delegated to no one responsibilities for the safety of the men. With regard to the remaining criteria the evidence described above indicates that Ira Williams, in his capacity as an executive officer, exposed the plaintiff to an unreasonable risk of harm, as a result of which the injury occurred.
It is well settled that an employer is under a legal duty to provide his employees with safe working conditions. Simmons v. Travelers Insurance Company, 295 So.2d 550 (La.App. 3rd Cir. 1974) w.d., La., 299 So.2d 795 and 796; Walker v. Graham, 343 So.2d 1171 (La.App. 3rd Cir. 1977) w.r. 346 So.2d 213; Chaney v. Brupbacher, 242 So.2d 627 (La.App. 4th Cir. 1970). Furthermore, the employer, and executive officers who have been delegated safety responsibility for the employees, have a duty to provide the employees with the proper equipment with which to work. Coco v. Winston Industries, supra.
A person in a supervisory capacity may be held liable where he negligently created or negligently failed to correct a dangerous condition of which he was or should have been aware under the circumstances. Fabre v. Travelers Insurance Company, 286 So.2d 459 (La.App. 1st Cir. 1973) w.r., La., 288 So.2d 646; Johnson v. Schneider, 271 So.2d 579 (La.App. 1st Cir. 1973).
Accordingly, I believe that the executive officer, Ira Williams, should have been held liable for the damages suffered by the plaintiff in the accident, and I respectfully dissent.