587 So. 2d 79 | La. Ct. App. | 1991
Lead Opinion
This case has been remanded to this court by the Louisiana Supreme Court to determine whether, after considering certain evidence previously excluded, William Buckbee’s survivors should have their claim barred due to his contributory negligence and assumption of the risk. We also must address the issues of whether defendant, United Gas Pipeline Company, Inc., was negligent and liable to plaintiffs and, if so, determine what damages, if any, are due, and then address the intervention of Rockwood Insurance Company, the worker’s compensation carrier of Lake Charles Refining Company, decedent’s employer, and the claim of United Gas for contractual indemnification against the Jerry R. Watt Company who had originally cleaned and removed a crude petroleum heater from the United Gas plant.
The survivors of William Buckbee (hereinafter plaintiffs), namely, his wife and a minor child, brought this action against United Gas Pipe Line Company, Inc. (hereinafter United Gas), the former owner of a used crude petroleum heater originally located at its plant in Carthage, Texas, to recover for William Buckbee’s death. United Gas had several years earlier sold and contracted with the Jerry R. Watt Company (hereinafter Watt) to have the crude petroleum heater cleaned and removed from service at its plant. Watt had cleaned, cut up, and removed the crude petroleum heater from service at the United Gas plant and later sold it to the Lake Charles Refining Company (hereinafter Lake Charles Refining) who had further dismantled and cut up the used crude pe
This case was before this court previously when the trial court granted motions for summary judgment on behalf of several defendants. We reversed and remanded for further proceedings. See, Buckbee on Behalf of Buckbee v. Aweco, Inc., 418 So.2d 698 (La.App. 3 Cir.1982), writ den., 422 So.2d 166 (La.1982).
This case was again before this court on appeal by plaintiffs from a jury verdict denying plaintiffs’ claim. We held that Vincent’s testimony about a statement made by Buckbee to Vincent shortly before the accident constituted double hearsay and was properly excluded by the trial court from evidence and consideration by the jury and affirmed the jury verdict denying plaintiffs’ claim. See, Buckbee v. United Gas Pipeline Co., Inc., 542 So.2d 81 (La.App. 3 Cir.1989).
The Louisiana Supreme Court granted writs, See, Buckbee v. United Gas Pipeline Co., Inc., 548 So.2d 312 (La.1989), reversed our determination that the trial court had not erred in excluding Vincent’s testimony about certain hearsay testimony relevant to the question of Buckbee’s contributory negligence and our affirmation of the jury verdict denying plaintiffs’ claim. See, Buckbee v. United Gas Pipeline Co., Inc., 561 So.2d 76 (La.1990). The Supreme Court then remanded this matter to our court to conduct a de novo review of the record in accordance with Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975), on remand, 329 So.2d 818 (La.App. 1 Cir.1976), and render judgment on the merits. In remanding this case to us, the Supreme Court specifically instructed this court that we should consider Vincent’s testimony about Buckbee’s statement, made to him shortly before the accident, that Buckbee intended to go to the office of his supervisors to seek permission to apply heat to the plug which Buckbee made just before descending the scaffold and going to the plant office.
We must also address all of the other issues of this case which were presented on the original appeal, and which were affected by the jury verdict, namely the affirmative defenses of contributory negligence and assumption of the risk raised by United Gas; the issue of the liability of United Gas; damages, if any; and the intervention of Rockwood Insurance Company (hereinafter Rockwood), the worker’s compensation carrier of Lake Charles Refining. However, we find that our de novo review under Gonzales does not apply to United Gas’ third party demand against Watt. United Gas filed a third party demand against Watt for contractual indemnification. At the close of trial, Watt was dismissed by the trial judge on a motion for directed verdict. We find that the judgment dismissing Watt is subject to the normal standard of appellate review, since that judgment was not affected by the eviden-tiary ruling which tainted the jury verdict, and since Watt’s liability was not presented to the jury for their determination.
FACTS
The following are the facts, as summarized by the Louisiana Supreme Court in the case remanded to us: William Buckbee was employed as the maintenance foreman for Lake Charles Refining. He was assigned the job of reassembling and installing a used crude petroleum heater previously owned by United Gas and Watt. The used crude petroleum heater consisted of a steel frame containing firebrick and six-inch steel tubes welded into coils. It weighed approximately 200 tons, and measured forty feet long, fifteen feet wide, and thirty feet high. It was originally owned and used by United Gas at its plant in Carthage, Texas. When United Gas had no further use for the crude petroleum heater and certain other equipment in its Car
On January 15, 1980, in the process of readying the used crude petroleum heater for service, Buckbee and a co-employee, Vincent, attempted to remove a tapered metal plug protruding from a “mule-ear header” on the exterior of the heater. Plugs, weighing two to three pounds, and the aperture into which they are placed, provide a means of visually inspecting the interior of the long pipes or tubes which run the full length of the heater and make a 180 degree return bend at the other end. The plugs are each placed in a “mule ear header,” a metal device weighing between two and three hundred pounds, which fits over the open ends of the pipes, with the plugs being secured to the “mule ears” by a shackle which fits into notches on the “mule ears” on either side of the header and can then be tightened by a bolt running through the center of the header.
Buckbee and Vincent removed the shackle from the “mule ear header” and tried to remove the first plug on the used crude petroleum heater. After two hours of work with wrenches and sledge hammers, they found themselves unable to remove the first plug. Buckbee then left the scaffold where he and Vincent were working, went into the plant office, remained there for about ten minutes, returned, and remounted the scaffold. At that point, Buck-bee and Vincent used an acetylene torch in an effort to heat and loosen the first plug. Although the crude petroleum heater had been out of service for several years, and although it had been cleaned, safely dismantled, cut up, and transported from Texas to Louisiana, the tube behind the plug apparently still contained some volatile flammable material. Application of the acetylene torch to the plug and surrounding heater pipe surface caused a fire to ignite, coincident with the blowing out of the plug. The resulting fire burned both Buckbee and Vincent severely. Vincent recovered; Buckbee died three weeks later from his injuries.
What follows are further facts ascertained by our study of the record.
The contract between United Gas and the Watt Company contained the following provision:
“17. Buyer shall be required to properly clean all pressure containing vessels at the Carthage plant before it begins any removal operations. These vessels have processed highly volatile hydrocarbons and natural gas. A United inspector will assist in monitoring these vessels before any dismantling is begun.”
J.H. Ecterhoff was vice-president of pipeline operations for United Gas and was responsible for supervising the execution of the contract. Ecterhoff testified that the monitoring of United Gas employees was to ensure that no person was injured and no equipment was damaged at the United Gas plant in Carthage, Texas while the heaters were being dismantled.
Glen Sanders was Vice-President in charge of Northern Operations for United Gas. He testified that, because the Carthage, Texas plant was operating at the time the heaters were being removed, and, for the safety of the plant, it was the job of United Gas employees to monitor the removal of the equipment by Watt in a safe manner. Sanders stated that some of the equipment to be removed from the plant was pure junk, but that some was reusable. His concern was to only have the equipment cleaned so that it could be safely removed from the United Gas plant, and not to provide a warranty as to its safety for further use as used equipment.
United Gas originally purchased the Al-corn crude petroleum heater involved in this litigation in the 1940s, and it remained in operation at its Carthage Texas plant until the mid-1970s. United Gas then shut down the part of its plant where this crude petroleum heater was in operation, and sold it “as is, where is” on December 8, 1976, as surplus equipment to Watt. Watt cleaned, cut up, and dismantled the used crude petroleum heater at the United Gas plant in Carthage, Texas pursuant to a contract with United Gas. Almost two years later, on April 27, 1978, Watt in turn sold the used crude petroleum heater, which was still physically located at United Gas’ Carthage, Texas plant site, to Lake Charles Refining “as is, where is”. Lake Charles Refining then further cut up and disassembled the used crude petroleum heater and transported it, along with other equipment, to Lake Charles, Louisiana where it remained unused until this accident occurred on January 15, 1980.
Joseph Chamberlain was co-owner of Lake Charles Refining and he testified that Buckbee’s background was that of a welder. Chamberlain testified that Buckbee was an experienced welder because he had performed the same type work at a refinery in Kansas. Chamberlain stated that his employees were instructed to remove all plugs cold. When Chamberlain viewed the used crude petroleum heater immediately after the accident, he noticed the shackle on the header had been removed. The shackle is a safety device and is to remain on until the plug is completely loose in order to keep the plug from blowing out. Chamberlain testified he personally told Buckbee to remove the first plug from the used crude petroleum heater cold one month before the accident and, again, the day before the accident. Chamberlain stated Buckbee’s temper was short.
Blane Sheley was a superintendent at Lake Charles Refining and a good friend of Buckbee. He knew Buckbee for about eight years and met him doing refinery work in Kansas. Sheley testified that Buckbee was an experienced welder and had pulled plugs before in Kansas and that it was common industry practice to pull plugs cold.
Sheley testified that he, Buckbee, and a young trainee shared living quarters. The night before the accident, the trainee asked many questions about the refining business and, during that discussion, Sheley reminded Buckbee that the first plug on a crude petroleum heater was always to be removed cold for safety reasons. Sheley testified that the discussion that night lasted approximately thirty minutes. Sheley testified that, if he were trying to remove a first plug from a heater, he would do it cold because it is a safety precaution.
Glen Sanders testified that proper cleaning is only intended for safety during the work being done at the moment. If the project takes a long period of time, the unit has to be re-tested for the presence of a volatile atmosphere and re-cleaned, if necessary, before further work continues on it. He testified that he would re-test a heater even after a lunch break, before resuming work on it for his own safety.
Plaintiffs proffered Vincent’s testimony, in the form of a stipulation, that if Vincent were called as a witness and asked what Buckbee said to him before he descended the scaffolding to go to the plant office, he would have said it was to obtain permission to apply heat to the first plug to remove it. This proffered testimony was excluded by the trial court as hearsay and this Court previously affirmed such exclusion, Buckbee v. United Gas Pipeline, Inc,, 542 So.2d 81 (La.App. 3 Cir.1989). The Louisiana Supreme Court has ordered us to consider this excluded hearsay statement finding it admissible. Buckbee v. United Gas Pipe Line Co., Inc., 561 So.2d 76, at page 85 (La.1990).
LAW
Defendants pled the defenses of contributory negligence and/or assumption of the
Assumption of the risk turns on the plaintiffs actual knowledge of the danger, and whether he has voluntarily encountered a known risk, whereas contributory negligence is governed by the objective standard of whether the plaintiff knew or should have known of the risk. Murray v. Ramada Inns, Inc., 521 So.2d 1123 (La.1988); Bass v. Aetna Ins. Co., 370 So.2d 511 (La.1979). The question to be addressed is whether plaintiff negligently disregarded a known risk or, in other words, whether plaintiffs conduct fell below the standard required of a “reasonable man of ordinary prudence” under the circumstances. See, Murray v. Ramada Inns, Inc., supra; Soileau v. South Central Bell Tele. Co., 406 So.2d 182 (La.1981).
Both Sheley, Buckbee’s good friend, and Chamberlain testified that each had recently discussed with Buckbee the importance of removing the first plug cold, due to the danger of applying heat. Sanders and She-ley each testified that it was common knowledge among oil industry workers that using heat on a plug to remove it was dangerous. Both Chamberlain and Sheley testified that Buckbee was an experienced welder and had performed the same type work in Kansas.
In this case, Vincent’s testimony to Buckbee’s first hearsay statement, that Buckbee intended to seek permission to apply heat to the plug, which Buckbee made just before descending the scaffold and going to the plant office, is to be considered by us as evidence that Buckbee formulated the intention to seek his superior’s permission to apply heat and as some evidence that Buckbee did indeed act in accordance with his expressed intention and that he did approach his superiors in the moments before the accident and that he did request of them permission to apply heat. That Buckbee sought permission to apply heat is directly relevant to whether he was contributorily negligent.
The fact that Buckbee left the scaffold in order to seek permission to apply heat indicates that it is unlikely that Buckbee would have sought permission to apply heat if he had not known that using heat was irregular and dangerous. If applying heat was a normal, routine and safe procedure, there would have been no need for Buckbee to obtain special permission. It further indicates that Buckbee knew and understood that he had previously been ordered not to use heat to remove the first plug.
We have no way of knowing from the record whether Buckbee actually received permission to apply heat. We do know, however, that there is no scintilla of evidence to prove that Buckbee was ordered to apply heat. We can find no jurisprudential authority that holds that obtaining permission to perform what is well known to be a dangerous act absolves one of contributory negligence. Whether or not permission was granted might make a difference for assigning comparative fault but comparative fault is not the law applicable to this case. We are aware of the Louisiana jurisprudence that holds that an employer who places his employee in a position of undisclosed danger is liable if the employee is injured thereby. However, this principle of law is inapplicable in the case at bar. Here Buckbee, just as was Lake Charles Refining, was well aware of the danger of using heat to remove a plug. Even assuming that Buckbee’s act in leaving to seek permission to apply heat demonstrates that Buckbee exercised the care of a reasonable prudent man under like circumstances to obtain permission from his superiors to use heat to remove the first plug, it would not resolve the question of whether Buckbee. assumed the risk by his further conduct before applying heat to the plug.
We find applicable to the case before us the rule that where an employee is not placed by an employer in a position of undisclosed danger, but is a mature and experienced man, doing the ordinary work he was engaged to do, and whose risks are obvious to everyone, he assumes the risks of the employment, and no negligence can be imputed to an employer for an accident to him therefrom. Swilley v. American Fire & Casualty Company, 148 So.2d 157
Our Supreme Court has held on numerous occasions that assumption of the risk turns on the plaintiffs actual knowledge of the danger, and whether he has voluntarily encountered a known risk. Murray, supra; Bass, supra. For an employee to be held contributorily negligent and/or to have assumed the risk of the harm which ultimately resulted in his injury, the defendant must prove by a preponderance of the evidence that the plaintiff voluntarily and knowingly exposed himself to the danger which resulted in his injury. That determination requires a dual finding of (1) a known and obvious danger; and (2) a readily available reasonable alternative. Daniel v. Griffis, 479 So.2d 503 (La.App. 1 Cir.1985), writ den., 483 So.2d 1019 (La.1986); Billedeaux v. Adams, 355 So.2d 1345 (La.App. 3 Cir.1978), writ granted, 358 So.2d 640 (La.1978), on remand 360 So.2d 637 (La.App. 3 Cir.1978). The record in this case is full of evidence proving that Buckbee was an experienced, knowledgeable, and highly regarded oil field welder. The fact that he sought special permission to apply heat demonstrates that he knew this was not a regular or routine practice to be used in the face of a known and obvious danger. We do know that there is no proof in the record that Buckbee was ordered to apply heat. Even assuming that Buckbee had received permission to apply heat to the plug, Buckbee still had a choice between continuing the traditional method of removing the plug cold with hammering and chiseling or, before using the dangerous method of applying heat to the plug, to have the heater tubes first tested for the presence of a volatile atmosphere before applying the heat and to then only apply heat to the plug with the shackle properly secured to the “mule ear header.” Unfortunately, Buckbee chose to encounter a risk which was well known to him without first taking any of these precautions which were readily available reasonable alternatives. Under these circumstances we do not find that Buckbee’s conduct, before applying heat to the plug, was that of a reasonably prudent man before voluntarily and knowingly exposing himself to a known and obvious danger. The law that applies in this case is a harsh one, but we do not have the authority to ignore it.
After carefully considering all of the evidence, we find that Buckbee was contribu-torily negligent and assumed the risk and would be barred from recovery. Thus, his survivors’ claim is also barred.
Ordinarily, we would pretermit further discussion of the negligence of the defendants in view of a finding of contributory negligence on the part of a plaintiff sufficient to bar his claim under the then applicable law. However, under the circumstances of this case, which has on numerous previous occasions been heard by the appellate courts of this State, and in light of which the separate appeals of the defendants have never been passed upon, we will also, in the interest of future judicial efficiency in the event our decision on plaintiff’s contributory negligence is reversed, rule on one of the issues presented by the United Gas appeal.
We will address the issue of whether United Gas was liable under a theory of ordinary negligence.
Our Supreme Court stated in Forest v. State, Through Louisiana D. of Transp., 493 So.2d 563 (La.1986), that in cases for recovery on the grounds of negligence, the court must consider the asserted negligence utilizing a duty-risk analysis. The duty-risk approach as set forth in the jurisprudence is essentially an analysis of the following questions:
(1) Was defendant’s conduct a cause-in-fact of the accident?
(2) Did defendant owe a legal duty which encompassed the particular risk of harm to which plaintiff was exposed?
(3) Did defendant breach that duty?
(4) What damages did plaintiff sustain?
Our jurisprudence holds that everyone is under an obligation, whether his role be that of an agent or owner, of not allowing things subject to his control to injure another, either because of active or
These are not the facts in this case. United Gas was neither an owner, nor an agent for the owner, of the used crude petroleum heater at the time of the accident.
The heater was originally owned and used by United Gas at its Carthage, Texas plant from the 1940’s until the mid-1970’s. United Gas discontinued use of the heater in 1975 or 1976 and, by a written contract with Watt, sold the heater to Watt. As part of this contract, Watt agreed to clean the heater and to safely remove it from service in the United Gas plant. Watt spent at least 18 months doing this and it was done safely. Watt then offered the used crude petroleum heater for resale to Lake Charles Refining who purchased the used crude petroleum heater from Watt in 1978. At the time Lake Charles Refining inspected the used crude petroleum heater, prior to its purchase from Watt, it discovered that the heater had already been safely cut on with welding torches by Watt in removing it from the United Gas plant. After Lake Charles Refining purchased the used crude petroleum heater from Watt, it sent a crew of its employees to further cut and dismantle the heater for transportation to Lake Charles. At that time, Lake Charles Refining employees again safely used cutting torches on the heater in the dismantling process. The heater was then removed to Lake Charles and sat idle at the Lake Charles Refining facility for several years until the time it was being reassembled by Lake Charles Refining for use in its plant in Lake Charles at the time of the accident in which Buckbee was killed. Buckbee was working on the used crude petroleum heater at that time to put it back into operation in Lake Charles at the plant of Lake Charles Refining. Certainly United Gas was not the owner or an agent for the owner of the used crude petroleum heater at the time of the explosion. United Gas had sold the heater to Watt in 1976 for dismantling over three years before the accident. Watt had in turn sold the dismantled heater to Lake Charles Refining over two years before the accident. Watt, not United Gas, placed the used crude petroleum heater in commerce. Lake Charles Refining itself further safely dismantled and cut on the heater. Lake Charles Refining, not United Gas, sought to reassemble and reuse the cut on and dismantled used crude petroleum heater in its commercial operations. United Gas did not sell the heater to Watt for purpose of its continued use. Both Watt and Lake Charles Refining were well aware that the crude petroleum heater had been cut on and dismantled and of the known danger of welding on a closed container that had previously been used to process volatile hydrocarbons and gas. Under a duty-risk analysis we can not find that United Gas had a duty to Buckbee or anyone else during the reassembly of the used crude petroleum heater. See, e.g. Manuel v. Odeco, Inc., 563 So.2d 1179 (La.App. 1 Cir.1990), writ den., 566 So.2d 401, 402 (La.1990).
We are called upon to decide whether there existed at the time of the accident any relationship between United Gas and the used crude petroleum heater which imposed liability on United Gas or gave rise to a duty that United Gas breached. Watt exercised dominion over the heater as owner by purchasing and safely removing the heater from the control of United Gas, and, by then reselling it “as is, where is” to Lake Charles Refining. Lake Charles Refining exercised dominion over the used crude petroleum heater as owner by further dismantling and cutting on and safely removing the heater from Carthage, Texas, to its plant in Lake Charles, Louisiana, by storing the used crude petroleum heater in its own facility for several years, and then by attempting to put the used crude petroleum heater into operation at its plant at the time of the accident.
The nature of the transactions from United Gas to Watt and from Watt to Lake Charles Refining and the further activities of Watt and Lake Charles Refining in
United Gas contracted with Watt to flush and clean and safely remove the used crude petroleum heater from its Carthage, Texas plant. This was in fact done as Watt cleaned and cut on the used crude petroleum heater and safely removed it. Watt then sold the used crude petroleum heater to Lake Charles Refining “as is, where is.” Lake Charles Refining further safely cut on the used crude petroleum heater and then moved it to its Lake Charles plant where it sat idle for several years. The used crude petroleum heater blew up when the new owner’s employee was working on it with heat over three years after United Gas had originally sold the used crude petroleum heater and after the used crude petroleum heater had been safely removed from service at the plant of United Gas.
For these reasons, we would also reverse the jury verdict and find that United Gas was not negligent and liable to Buckbee, even if Buckbee was not contributorily negligent and did not assume the risk.
Having concluded that Buckbee was eon-tributorily negligent and assumed the risk and that, in any event, United Gas would not be liable for Buckbee’s injuries and death, we find that the issues of damages, the third party demand of United Gas against Watt, and Rockwood’s intervention are moot.
For these reasons, the judgment of the trial court is affirmed. All costs are taxed to plaintiff-appellant.
AFFIRMED.
KNOLL, J., dissents and assigns reasons.
LABORDE, J., dissents for reasons assigned by KNOLL, J.
Dissenting Opinion
dissenting.
For the following reasons I respectfully disagree with the majority opinion, finding instead that United Gas was negligent and that Buckbee's fault did not bar his recovery.
The majority misfocuses its attention on the fact that United Gas was not the owner of the heater at the time of the explosion. In so doing, the majority overlooks the crucial fact that United Gas was the owner of the heater when it contracted with Watt and agreed to monitor the proper cleaning of the heater.
The initial inquiry in any determination of actionable negligence on the part of the defendant is whether any causal relationship existed between the harmed plaintiff and the defendant’s allegedly negligent conduct. Zeagler v. Town of Jena, 503 So.2d 1137 (La.App. 3rd Cir.1987). To be a cause-in-fact of an injury, such cause must play a significant and substantial role in causing the injury, and not a remote or slight part. Lastrapes v. South Cent. Bell Tel. Co., 473 So.2d 115 (La.App. 3rd Cir.1985), writ denied, 477 So.2d 708 (La.1985).
In the present case, it is undisputed that a kerosene-like substance was found in the heater, and the evidence preponderates that it was this substance which ignited when Buckbee and Vincent applied heat to the plug. United Gas personnel testified that it used liquid hydrocarbons, which would have included kerosene or a kerosene-like substance, in the heater in question as part of its gas processing operation
The next inquiry is whether United Gas owed a legal duty and whether the duty encompassed the particular risk which caused Buckbee’s injuries and death.
Those who use or handle agencies, substances, or instrumentalities such as combustibles, which might endanger persons or property are held to a high degree of care. Waters v. Southern Farm Bureau Casualty Ins. Co., 212 So.2d 487 (La.App. 3rd Cir.1968), writ refused, 252 La. 900, 214 So.2d 720 (1968); Jones v. Robbins, 289 So.2d 104 (La.1974); Butler v. Atwood, 420 So.2d 742 (La.App. 4th Cir.1982). Everyone is under an obligation, whether his role be that of an agent or owner, of not allowing things subject to his control to injure another, either because of active or passive negligence. Miller v. Lambert, 380 So.2d 695 (La.App. 4th Cir.1980). Furthermore, whenever property in one’s control becomes dangerous to third persons, there is a duty to act affirmatively, and should there be nonperformance, resulting in injury to third persons, the law imposes liability on the part of the agent or owner. Id.; Washington v. T. Smith & Son, 68 So.2d 337 (La.App.Orl.1953).
In the case sub judice, I find that United Gas owed a duty to properly clean its heater which processed highly combustible hydrocarbons. United Gas’ contract with Watt, as illuminated by the testimony of its administrative personnel, underscored the duty to clean the heater, i.e., United Gas recognized the danger that uncleaned heaters posed to its plant operation and personnel at the Carthage facility. Contrary to the majority’s assertion that “United Gas did not sell the heater to Watt for its continued use”, the record clearly shows that United Gas further understood that the heaters could have been used again by someone else in the processing of hydrocarbons, and that personnel other than its own would be required to perform work on the heaters to make them operational. On this basis, I find that United Gas’ duty encompassed the particular risk which caused Buckbee’s injuries and death.
The next issue is whether United Gas breached its legal duty. United Gas contends that it fulfilled any duty it may have by stipulating in its contract with Watt, the first purchaser, that Watt’s personnel were required to properly clean all pressure containing vessels at the Carthage plant before removal operations began. I find no merit to United Gas’ contention.
In addition to the contractual provision that required Watt to properly clean the pressure containing vessels, e.g., the heater at issue, United Gas obligated itself to monitor Watt’s compliance. In particular, the contract between United Gas and Watt specified, “A United inspector will assist in monitoring these vessels before any dismantling is begun.”
The evidence establishes that none of United Gas’ employees stationed at Carthage were assigned as “Inspector” for Watt’s removal operations. Moreover, an interoffice memorandum from United Gas, generated after the explosion and fire which killed Buckbee, states unequivocally, “The physical condition of the equipment to be removed was not checked by United’s employees”.
The record evidence shows that Watt used high pressure hoses provided by United Gas to flush out the heaters. Glen A. Sanders, a United Gas witness, testified that the purging of a vessel with water will not necessarily remove the heavier combustible liquids, and that the likelihood of an accident is greatly lessened if the vessel is rigorously cleaned. J.H. Echterhoff, United Gas' signatory to the Watt contract, testified that hydrocarbons are not solvent in cold water, and that the flushing of a vessel with water will “not leave substantial amounts of hydrocarbon in the system.” The evidence shows that despite
George Green, Jr., an expert in safety engineering, testified on behalf of the Buckbees. He testified that it was the standard in the industry to clean and check a heater when it is removed from service. He opined that simply flushing the heater with a hose, as done by Watt, would not have effectively removed the volatile liquids and gases from the heater.
Considering the totality of the record evidence, I find that United Gas breached the legal duty it owed to Buckbee. It failed to monitor whether Watt properly cleaned the heater, satisfying itself that Watt utilized a cleaning method sufficient to safely remove the heaters from its facility — a method, by the admission of its own personnel, which would not necessarily remove the heavier liquid hydrocarbons.
For these reasons, I find United Gas negligent and, therefore, liable for Buckbee’s injuries and death.
I also disagree with the majority’s conclusion that Buckbee was contributorily negligent and assumed the risk. I find that in reaching these conclusions the majority fails to assess Buckbee’s actions in light of the totality of circumstances presented.
A plaintiff’s contributory negligence is a relative, not an absolute, determination. Buckbee v. United Gas, 561 So.2d 76 (La.1990). Contributory negligence must be judged objectively in each particular case according to the conduct expected of a reasonable man under like circumstances. Soileau v. South Cent. Bell Tel. Co., 406 So.2d 182 (La.1981); Bass v. Aetna Ins. Co., 370 So.2d 511 (La.1979); Dyson v. Gulf Modular Corp., 338 So.2d 1385 (La.1976); Theunissen v. Guidry, 244 La. 631, 153 So.2d 869 (1963). Moreover, a party is only required to use reasonable caution, and his conduct is not negligent if, “by a common sense test, it is in accord with that of reasonably prudent persons faced with similar conditions and circumstances.” Dupas v. City of New Orleans, 354 So.2d 1311, 1313 (La.1978) (quoting Smolinski v. Taulli, 276 So.2d 286, 290 [La.1973]). Contributory negligence is an affirmative defense, and the party relying upon it has the burden of proving it. Buchanan v. Tangipahoa Parish Police Jury, 426 So.2d 720 (La.App. 1st Cir.1983).
To determine the question of contributory negligence, Buckbee’s actions must be viewed in light of the evidence adduced trial. In that regard, attention must be focused on Buckbee’s character, his work habits, the factual background surrounding this heater, Buckbee’s instructions from his supervisors as well as the circumstances immediately preceding the accident.
Lake Charles Refining (LCR) employed Buckbee as its maintenance foreman. On the day of the explosion and fire, he was assigned the job of reassembling and installing a secondhand box heater which LCR purchased from Watt. The heater was previously owned by United Gas at its Carthage, Texas plant. When the heater was used in Carthage, United Gas circulated absorbing oil, a kerosene-like substance, through the coils to absorb various hydrocarbons from the natural gas.
Joseph Chamberlin, a co-owner of LCR, and Blane Sheley, the plant superintendent, testified that the accepted safe practice was to remove the first plug from this type heater “cold”, i.e., using chisels, hammers, and wrenches, because the content of the coils, if any, was unknown and may have been highly flammable. The record preponderates that Buckbee was aware of this safe procedure. The record further shows that Chamberlin instructed Buckbee “probably a month before and probably a day before” the explosion and fire that Buck-bee should remove the first plug of the heater cold. Sheley also testified that on the evening prior to the explosion he and Buckbee discussed the procedure for removing the first plug cold with Walter Hanson, a trainee who was not involved in the accident.
The record shows that United Gas’ processing plant at Carthage, at least that portion which utilized the heater in question, was shut down in 1975 or 1976. The evidence further shows that in a written contract dated December 8, 1976, United Gas sold the heater to Watt. As part of this contract, Watt agreed to remove the equipment from the United Gas facility, and spent at least 18 months removing the various pieces sold.
Chamberlin testified that he heard that Watt purchased the heaters for resale, and went personally to Carthage to view the heaters prior to making a final decision to buy them. Chamberlin stated that at the time of his visit, the heaters had already been cut with welding torches from the United Gas plant which was still in operation. After the sale from Watt to LCR, a crew of LCR’s employees was deployed to Carthage to dismantle the heaters for transportation to Lake Charles. At that time, a cutting torch was used in the dismantling process. The heater at issue then sat idle at LCR for several years and was not yet in operation at the time of the explosion and fire which killed Buckbee.
Although Chamberlin testified that Buck-bee had a short temper, he was quick to add that Buckbee was an excellent foreman, that he was conscientious, and that he was a safe worker. He referred to Buck-bee as a methodical worker, stating that Buckbee got the job done, and he was not the fastest worker, and further said, “If Buckbee hadn’t thought it was safe, I’m sure he wouldn’t have lit the torch.”
Sheley, Buckbee’s superintendent at the time of the accident and a close friend, opined that when a furnace has been exposed to the atmosphere for a long time, like the heater in question, it was not necessary to reclean it before removing the plug. He also said that because of the long period of inoperation, he also would not have used a sniffer (a mining device used for the detection of volatile hydrocarbons) before pulling the plugs from the heater. Like Chamberlin, Sheley testified that Buckbee was a “good and safe worker”.
United Gas did not present any evidence of an alternative method which Buckbee could have used once the cold method failed. Green, the Buckbees’ safety expert and the only safety expert to testify, stated that there was no absolutely safe way to remove the plug with volatile hydrocarbons present. He opined that using saws, cutting wheels, sledgehammers, and chisels would produce sparks and heat which could cause an explosion and fire. This testimony was unrefuted.
Considering Vincent’s proffered testimony in light of the unrefuted evidence that Buckbee spent hours attempting to remove the plug cold, that he was a safe worker, and that he sought permission from his supervisors to use heat to remove the plug from a heater “which certainly had been dismantled, which had sat idle for over two years, and which showed signs of having been previously cut with torches”, I find that Buckbee’s use of heat to remove the plug was exercised with the care of a reasonable, prudent man under like circumstances. Therefore, I find that United Gas, which had a greater burden since it knew what the heater was used for at its facility and, despite its knowledge, failed to properly clean it, did not prove by a preponder-
The final question is whether Buckbee assumed the risk of injury.
In Dorry v. LaFleur, 399 So.2d 559 (La.1981), the Louisiana Supreme Court adopted the Restatement of Torts’ explanation of assumption of risk in Section 496D, Comment b, as follows:
“ ‘The basis of assumption of risk is the plaintiff’s consent to accept the risk and look out for himself. Therefore, he will not be found, in the absence of an express agreement which is clearly so to be construed, to assume any risk unless he has knowledge of its existence. This means that he must not only be aware of the facts which create the danger, but must also appreciate the danger itself and the nature, character and extent -which make it unreasonable. Thus the condition of premises upon which he may enter may be quite apparent to him, but the danger arising from the condition may be neither known nor apparent, or if known or apparent at all, it may appear to him to be so slight as to be negligible. In such a case the plaintiff does not assume the risk. His failure to exercise due care either to discover or understand the danger is not properly a matter of assumption of risk, but of the defense of contributory negligence.’ ”
Assumption of risk involves a question of fact in each case determined by an evaluation of the plaintiff’s subjective knowledge. Thompson v. Tuggle, 486 So.2d 144 (La.App. 3rd Cir.1986), writ denied, 489 So.2d 919 (La.1986). A subjective standard of what the particular plaintiff in fact sees, knows, understands and appreciates is applicable. Chatelain v. Project Square 221, 505 So.2d 177 (La.App. 4th Cir.1987), writs denied, 508 So.2d 71, 74 (La.1987). The defendant pleading the defense of assumption of risk bears the burden of proving it. Id.
Since the inquiry is subjective, the record must be examined to determine if Buckbee knew of the risk and appreciated its unreasonable character. See Rozell v. Louisiana Animal Breeders Co-Op., 496 So.2d 275 (La.1986). Considering Buckbee’s experience as a welder in or around oil refineries in excess of ten years, this is convincing that he recognized a risk in removing the first plug with heat. Nevertheless, in light of the evidence that two other similar heaters had been placed into operation without difficulty, that this particular heater had been cut with acetylene torches pri- or to this operation, and that the heater sat in the atmosphere disconnected from any combustible source in excess of two years, I find that Buckbee believed the risk of an explosion was not an unreasonable risk. Therefore, I find that Buckbee did not assume the risk.
For these reasons, I would find United Gas liable and award damages in favor of Buckbee’s wife and son.
