213 So. 3d 429
La. Ct. App.2017Background
- Dan Gordon, an independent contractor working on BAC #2’s warehouse renovation supervised by Gene Langkop, was killed when a segmented concrete retaining wall owned by Baker collapsed into an alley on April 21, 2012.
- BAC #2 had excavated debris from the alley months earlier; Langkop identified the wall as unstable, retained an engineer who warned the wall was unsafe, and BAC #2 sent multiple letters to Baker demanding remediation.
- A door was cut providing access from the warehouse to the alley; workers were verbally warned not to enter the alley but no physical barricades or signs were posted; Langkop was pressure-washing in the alley the day of the collapse.
- Plaintiffs (Gordon’s minor children) sued BAC #2, Langkop, Baker and insurers; after settlements/dismissals, bench trial in 2015 resulted in judgment finding BAC #2, Langkop and their insurer 75% at fault and Baker 25%, awarding substantial damages to each child.
- Defendants appealed, raising four primary issues: (1) striking the jury for untimely jury deposit; (2) duty/breach/causation under duty-risk analysis; (3) fault allocation between BAC #2/Langkop and Baker; and (4) excessiveness of damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Motion to strike jury (failure to timely post jury deposit) | Strike appropriate because parties who requested jury (insurers) failed to timely post deposit and collectively waived jury rights. | BAC #2/Langkop timely secured a jury within the 10-day grace period and did not request waiver; deposit was made on their behalf. | Trial court did not err: record supports factual finding of collusive action to circumvent deadlines; denial of writ is not binding; striking jury upheld. |
| 2. Duty/risk (did BAC #2/Langkop owe and breach duty; causation) | Plaintiffs: BAC #2/Langkop owed duty to provide safe work environment, breached by excavating without proper precautions, creating access, failing to barricade, and pressure-washing; breaches were substantial causative factors. | Defendants: Wall was Baker’s defect on third-party property; primary cause was Baker’s improper construction/maintenance, not BAC #2’s actions. | Held for plaintiffs: duty existed; factual findings of breach and causation were supported (manifest error standard) given expert testimony and facts. |
| 3. Allocation of fault (75% appellants /25% Baker) | Plaintiffs: BAC #2/Langkop’s superior knowledge, creation of access, and failure to protect workers merit majority fault. | Defendants: Baker constructed and controlled wall; fault should largely rest with Baker. | Allocation affirmed: trial court’s apportionment reasonable in light of evidence that BAC #2/Langkop exacerbated danger and contributed to Gordon’s exposure. |
| 4. Quantum (excessive damages) | Plaintiffs: emotional and pecuniary losses supported by parents’ testimony and economist; awards within expert ranges. | Defendants: mothers’ credibility questionable; lack of objective corroboration; economist assumptions unreliable. | Awards affirmed: trial court’s discretion in assessing general and special damages was not abused; amounts supported by testimony and expert calculations. |
Key Cases Cited
- Mathieu v. Imperial Toy Corp., 646 So.2d 318 (La. 1994) (sets out five-element duty/risk negligence framework)
- Lemann v. Essen Lane Daiquiris, Inc., 923 So.2d 627 (La. 2006) (duty is a question of law decided by policy analysis)
- Boykin v. Louisiana Transit Co., Inc., 707 So.2d 1225 (La. 1998) (general duty to use reasonable care to avoid injury)
- Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC, 193 So.3d 1110 (La. 2015) (appellate review of factfinder’s expert selection and manifest error standard)
- Guillory v. Lee, 16 So.3d 1104 (La. 2009) (deference afforded trial court in assessing quantum)
- Rosell v. ESCO, 549 So.2d 840 (La. 1989) (credibility determinations reserved to factfinder)