Emmanuel J. LANGLOIS v. ALLIED CHEMICAL CORPORATION and the Travelers Insurance Company.
No. 50852.
Supreme Court of Louisiana
June 7, 1971.
Rehearing Denied June 28, 1971.
249 So. 2d 133
D‘Amico,
Taylor, Porter, Brooks & Phillips, William Luther Wilson, Baton Rouge, for defendants-appellees.
BARHAM, Justice.
This suit was filed by Emmanuel Langlois, a fireman employed by the Baton Rouge Fire Department, for personal injuries he sustained from inhalation of a gas that escaped from the Allied Chemical Corporation. Suit was brought against Allied and its liability insurer, The Travelers Insurance Company.1 On appeal the judgment of the district court which awarded Langlois damages was reversed. 238 So. 2d 41.
On February 23, 1967, a radio call was received by Fire Station No. 2 in Baton Rouge directing that a fire truck be sent to Delta Southern Tank Corporation to give assistance to two men who were trapped in a tank by a gas. Langlois, who was acting as temporary fire truck driver, and the other members of the crew proceeded to Delta‘s premises. Arriving at Delta‘s parking lot they were told that the men had been extricated and to return to the fire station. During the five-minute interval while they remained at Delta they encountered gas in the form of a haze or fog coming from an unknown source. Langlois’ throat started tickling, his eyes smarted, and he began to cough. All others in the area evidenced the same effects from the gas. On the return trip they continued to encounter the gas with a heavier concentration for about two and one-half blocks. Although the windows of the cab of the truck were closed, Langlois and the Captain who rode with him in the cab still suffered from the effects of the gas. At the fire station Langlois was again exposed to the gas as it drifted in that direction while he was washing down the fire truck. To avoid contact with the gas he and the other firemen went into the station and closed the windows.
Langlois continued to cough the night after the exposure and for the next three days. He also began to expectorate a thick mucus, had difficulty in breathing, and ran a temperature of 102-103 degrees. A skin irritation occurred with some scaling and dryness of the face and ears. The morning of the fourth day after his exposure to the gas he was admitted to the hospital for treatment for chemical bronchitis. Five days later he was discharged from the hospital with out-patient care. About a month after the incident Langlois returned to work, and approximately two weeks later he was discharged from all medical care. No permanent disability resulted from the injury.
It was ascertained after the incident that the gas was antimony pentachloride, which was used as a catalyst in the manufacture of certain Genetrons. The gas had escaped from Allied Chemical Corporation‘s plant, which was adjacent to Delta, when a Halon-lined pipe carrying the gas from a reactor ruptured.
Allied admits that it was responsible for the damage caused by the escaped gas, and that negligence is not the criterion for determining its responsibility. Allied urges that the final judicial conclusion as to its liability to a third party is to be made after a determination of the relationships and a consideration of the conduct of the parties toward each other. It admits that Langlois was a person protected from the damage
Langlois answers that it is of no moment that he was acting as a fireman, and that by any standard he did not cause or contribute to his own damage. He urges that where responsibility for damage attaches without proof of negligence, imprudence, or want of skill on the part of the defendant, the court should not inquire into the conduct of the one damaged to determine whether liability attaches. It is his position that contributory negligence and assumption of risk do not apply when liability is imposed without negligence.
Counsel for all parties litigant, while agreeing that Allied is responsible for the damages that ensued because it allowed a poisonous gas to escape, advance numerous theories and codal authorities as a basis for this responsibility in order to propose or dispose of the defenses urged. Their dilemma is partially the result of inconsistence in jurisprudential assignment of a legal basis for allowing recovery for damages resulting from the dangerous and harmful activities and enterprises.
Although we have deviated from the theory of the case pleading under
Fault is the key word in
It has been said: “*** The merit of the civilian general principle lies in the fact that the principle is wider than the cases decided and that hence it has within itself the potentiality of growth.” Stone, Tort Doctrine in Louisiana, 17 Tul.L.Rev. 159, 166.
Definitions of fault are actually indefinite generalities and usually not illuminating when applying the concept. Colin and Capitant have said that fault signifies that conduct which a man should not have engaged in—that is, that he has acted as he should not have acted. 2 Colin et Capitant, Cours elementaire de droit civil francais (8e ed. 1935) § 190. Defining fault is a logomachy. Because of the difficulty in defining fault for all times and purposes and instead of defining fault by listing numerous activities which constitute fault (much as we enumerate the activities which constitute criminal conduct in our Criminal Code) our law has left this determination in the hands of the court. However, our lawmakers have provided us with numerous standards of fault in the Civil Code, in statutory law, and in ordinances. Fault is not limited to moral wrongs but encompasses many acts which are merely for- bidden by law. The fault of the employer which makes him liable for the negligence of his employees is founded upon socio-economic needs and not upon moral considerations. Our Code has defined man‘s responsibility in numerous relationships with others, such as lessor (Arts. 2692-2709), as lessee (Arts. 2710-2723), as carrier (Arts. 2752-2754), as an adjoining landowner (Arts. 667, 670, 691, 697, 698), as a neighbor (Art. 669), to illustrate only a few.4
As Professor Stone said about
One standard of conduct appropriate for consideration here is expressed in
In the recent case of Robichaux v. Huppenbauer, 258 La. 139, 245 So. 2d 385 (1971), this court found that the activities specified in the article were not the only ones which are to be regulated when insufferable inconvenience and harm are inflicted upon neighbors.5
Our jurisprudence has not limited recovery for damage suffered by one in the neighborhood from dangerous, harmful activities of landowners, but has included contractors and others. Moreover, damages have been given for injury suffered from these activities not only to adjoining landowners but to lessors or tenants,6 third parties,7 and even to parties in privity with the one who actually conducted the activity.8 These cases, as previously noted, have varied in determining the legal basis for allowing recovery. In considering the various activities which create a foreseeable harm to those in the neighborhood, even when conducted with the greatest of prudence and care, the trend has been toward an expansion of the classes of those who are entitled to recovery as well as an expansion of the classes from whom recovery can be had.9
In general the early cases seem to rely upon an old common law treatise,
In 1957 in Gotreaux v. Gary, 232 La. 373, 94 So. 2d 293, recovery was allowed against both the landowner and his contractor, a flying service, for crop damage from spraying operations. The court rejected negligence as a criterion for liability and looked to Civil Code
As recently as 1968 in Craig v. Montelepre Realty Co., 252 La. 502, 211 So. 2d 627, this court allowed recovery for damage from pile driving. Although the court there applied
The storage of the dangerous, highly poisonous gas by Allied was an activity which, even when conducted with the greatest of care and prudence, could cause damage to others in the neighborhood. It was an ultra-hazardous activity, and the possible consequences of the gas escaping and causing harm were known or should have been known.13
Here we find that proof that the gas escaped is sufficient, and proof of lack of negligence and lack of imprudence will not exculpate the defendant. The defendant has injured this plaintiff by its fault as analogized from the conduct required under Civil Code
Having determined that plaintiff‘s cause of action is delictual under Civil Code
The fire truck was equipped with breathing devices, which consisted of a metal air tank to be worn on the fireman‘s back by the means of shoulder straps with a hose which connected the oxygen in the tank to a full face mask. At the time Langlois came into contact with the gas, although he suffered a tickling in his throat, coughing, and burning eyes, he did not feel any need to take the precaution of using the breathing device. Furthermore, it would have been difficult if not impossible to have worn the device on his back while he drove. There were several firemen on the truck, including the captain of the district who rode in the cab with Langlois. Additionally, the Chief of the Baton Rouge Fire Department and the District Chief were present on the Delta premises. The sensations felt by these firemen were basically the same as those felt by Langlois, and none of them felt it necessary to use the breathing devices.
The defense of contributory negligence which is urged here presupposes original negligence on the part of the defendant. This case is not a case where negligence is an ingredient of fault, and contributory negligence is not a defense. Usually, the assumption of risk doctrine will apply where the nature of the relationship of the parties appears to exact consent from the one injured to be exposed to possible harm. In such situations the plaintiff understands the risk involved and accepts the risk as well as the inherent possibility of damage because of the risk. There is some authority for rejecting assumption of risk in cases which do not involve negligence, but the majority view is that assumption of risk is a defense to strict liability. A plaintiff who with full knowledge and appreciation of the danger voluntarily exposes himself to the risks and embraces the danger cannot recover damages for injury which may occur.
Under the facts we have related above, we first note that the standard of conduct required of the plaintiff and the defendant in this case does not come within the ambit of those cases which deal with firemen who respond to calls to fight fires on the defendant‘s premises. See Annotation, 13 A.L.R. 637; Annotation, 86 A.L.R. 1205; 69 University of Pennsylvania Law Review 237. It is noted, however, that the jurisprudence has been in a constant swing toward giving more protection to firemen in the discharge of their duties upon a defendant‘s premises.
In our case, Langlois did not enter the premises of Allied. He responded to the call to help others who were in imminent danger of suffering injury. In his response to the call his duty was to rescue those on adjoining premises whose lives and health were endangered by reason of Allied‘s fault. Any voluntariness on the part of Langlois could only be found if we assume a waiver because he became a fire- man. Firemen, police officers, and others who in their professions of protecting life and property necessarily endanger their safety to not assume the risk of all injury without recourse against others. Briley v. Mitchell, 238 La. 551, 115 So. 2d 851 (1959). Here, Langlois’ rescue mission on premises other than defendant‘s would tend to minimize the extent to which Allied might be required to respond in damages to others. Langlois’ primary duty as a fireman was to drive the fire truck. In regard to his specific duty, it cannot be said that he assumed risks from the gas any more than drivers of other vehicles who might be in and about the premises. He was subjected to the gas while the truck remained on the premises, during the return trip to the fire station, and finally at the fire station when he washed down the truck.
The determination of whether a plaintiff has assumed a risk is made by subjective inquiry, whereas contributory negligence is determined objectively under the reasonable man standard. See Restatement (Second), Torts § 496 (1965); Symposium: Assumption of Risk, 22 La.L.Rev. 1-166. Although Langlois as a fireman possessed more knowledge than many about the nature of gases and the consequences of exposure to gases, he did not here knowingly and voluntarily encounter the risk which caused him harm. He acted in response to duty, and his exposure to the risk in line with that duty was minimal. Langlois did not embrace a known danger with that consent required by law to bar his recovery for defendant‘s fault. The defendants must establish by a preponderance of evidence their affirmative defense. They have failed to discharge this burden.
Langlois asks for an increase in the award made by the lower court of $2500.00 plus specials. After a review of the record we are of the opinion that the award made by the lower court was proper.
For the reasons assigned the judgment of the Court of Appeal is reversed. It is ordered that the plaintiff Emmanuel J. Langlois have judgment against Allied Chemical Corporation and The Travelers Insurance Company in solido for $3269.04 with legal interest from date of judicial demand until paid. It is further ordered that the defendants are to pay all costs.
McCALEB, Chief Justice (concurring).
This case, in my opinion, is cognizable only under Articles 2315, 2316 and 2317 of
For these reasons I concur in the result.
HAMLIN, Justice (dissenting).
I am compelled to dissent in this matter because I believe that the Court of Appeal has correctly analyzed the facts and applied the law applicable thereto.
I am particularly impressed with the following statement contained in the opinion of the Court of Appeal:
“We find as a fact that plaintiff herein knew upon leaving the firehouse that he was called to assist in a rescue mission made necessary by gas escaping from an unknown source. Upon arriving at the scene, plaintiff immediately became aware that gas was present in the vicinity. It could be seen by all present. Neither plaintiff nor anyone else present knew the type of gas involved. That the gas possessed irritant qualities became immediately known to plaintiff. His eyes began to water, his throat commenced tickling and he started coughing. The record establishes beyond doubt that plaintiff‘s training had taught him his first consideration should be for his own protection not only for self-preservation, but also because only in this way could he be of service to others. It also appears that plaintiff‘s training taught that when encountering gas, especially gas of an unknown type, plaintiff should assume the worst and take precautionary measures to guard, against being overcome. It also appears that plaintiff had at his disposal safety equipment designed to protect him against the effect of smoke and harmful gases. In addition, the manuals used in plaintiff‘s training expressly warn that irritant gases can damage the respiratory tract and therefore precautions should be taken when such substances are encountered. When plaintiff encountered the unknown irritating gas on Delta‘s premises and experienced the reactions noted, it then became incumbent upon him to use an available air pack for his protection.”
I respectfully dissent.
SUMMERS, Justice (dissenting).
I agree that the assumption of risk doctrine may properly be invoked as a defense to strict liability. Therefore, a plaintiff who, with full knowledge and appreciation of the danger, voluntarily exposes himself to the risk and embraces the danger cannot recover damages for injury which may occur.
I cannot agree, however, that plaintiff was unaware of or did not assume the risk under the facts of this case. Plaintiff was, at the time of his injury, a paid, trained fireman in the employ of the city of Baton Rouge. This occupation is generally and properly regarded as hazardous. Firemen are routinely exposed to risk of injury or death by the duties they are called upon to perform. One of their duties involves rescue of persons endangered by harmful gas.
Plaintiff had been taught to work in areas contaminated by gas and he was made aware of the nature of the risk involved. Proper use of safety breathing equipment was part of that training. One precaution this training emphasized was that firemen should assume the worst when
In addition, the fire truck was equipped with breathing devices consisting of metal air tanks designed to be worn on a fireman‘s back. They were held in place by shoulder straps. A hose connected the oxygen in the tank to a full face mask. This device would make plaintiff‘s duty as a truck driver impracticable, but if it was necessary for him to don the breathing apparatus, regulations permitted him to turn over his driving duties to someone else.
Knowing that he was being called to a rescue mission involving dangerous gas, knowing the precautions he should take to protect himself and realizing that the possibility of injury was part of the risk of his employment as a fireman, plaintiff should not be permitted to recover in this case. McGee v. Adams Paper and Twine Co., 26 A.D.2d 186, 271 N.Y.S.2d 698 (1966) appealed to Court of Appeal of N. Y., 19 N.Y.2d 673, 278 N.Y.S.2d 864, 225 N.E.2d 555 (1967) and Chesapeake & Ohio Ry. Co. v. Crouch, 208 Va. 602, 159 S.E.2d 650, cert. denied, 393 U.S. 845, 89 S.Ct. 128, 21 L.Ed.2d 115 (1968).
It is no defense to the burden of care imposed on plaintiff by the doctrine of assumption of risk, to contend that other firemen took no precautions and received no injuries, and hence he could not be expected to avail himself of safety precautions, such as the use of the breathing apparatus. Especially is this so when plaintiff experienced definite physical reactions to the gas in time to protect himself, whereas the other firemen did not. Plaintiff was well aware, from his training, that tolerance of individuals to the ill effects of gas varied.
I respectfully dissent.