Teter v. Apollo Marine Specialities, Inc.

115 So.3d 590

William TETER

v.APOLLO MARINE SPECIALITIES, INC., Colley Properties, LLC., d/b/a E.C. Colley Warehouse B & F Special Risk Insurance Company, John Doe and XYZ Insurance Company.

No. 2012–CA–1525.

Court of Appeal of Louisiana, Fourth Circuit.

April 10, 2013.

Richard T. Gallagher, Jr., Gallagher Law Firm, Metairie, LA, for Plaintiff/Appellant.

Joseph M. Messina, Pamela K. Richard, Lobman, Carnahan, Batt, Angelle & Nader, New Orleans, LA, for Defendant/Appellee.

(Court composed of Judge MAX N. TOBIAS, JR., Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS).

ROSEMARY LEDET, Judge.

[4 Cir. 1]This is a personal injury suit. The sole issue presented is whether the trial court erred in granting the motion for summary judgment filed by the defendant, Apollo Marine Specialties, Inc. Finding genuine issues of material fact exist precluding the grant of summary judgment, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

On March 27, 2003, William Teter allegedly injured his back while unloading a heavy spool (or coil) of rope being delivered by Apollo Marine to the job site where he was working. Mr. Teter was working as an ironworker foreman for American Bridge Company on the Florida Avenue Bridge project. Apollo Marine was one of American Bridge's material suppliers.

On March 26, 2004, Mr. Teter filed this suit against, among others, Apollo Marine. In his petition, he alleged that on the day of the accident an Apollo Marine delivery truck driver arrived at the job site to deliver a giant spool of heavy marine rope; Apollo Marine had only one employee delivering the rope. Since the spool of rope was too heavy for Apollo Marine's driver to remove from the truck by [4 Cir. 2]himself, Mr. Teter was asked to assist the driver in unloading it. While unloading the spool of rope, Apollo Marine's driver negligently pushed the heavy spool of rope too hard causing it to fall off the truck. In attempting to turn away to avoid being hit by the heavy spool of rope, Mr. Teter slipped and fell in oil.

Mr. Teter averred that Apollo Marine, through its driver, was negligent in the following four non-exclusive respects: (i) failure to have adequate employees to unload material, (ii) failure of its employees to properly unload the heavy spool of rope, (iii) failure to see that Mr. Teter was in the path of the spool of rope, and (iv) failure to warn Mr. Teter that the driver was shoving the spool of rope. Apollo Marine answered denying liability and asserting that, if in fact the accident occurred, the accident was the result of Mr. Teter's own voluntary exposure to “the normal hazards of his occupation.” Apollo Marine also asserted comparative fault on the part of Mr. Teter and his employer, American Bridge.¹

On March 15, 2005, Mr. Teter died. On April 30, 2006, Mr. Teter's surviving spouse, Yvette Walters Teter, both individually on behalf of her deceased husband and on behalf of their two minor children, filed a supplemental and amending petition substituting herself as proper party plaintiff. Alleging that Apollo Marine's negligent actions caused Mr. Teter's death, Mrs. Teter asserted a [4 Cir. 3]wrongful death claim and a survival action. SeeLa. C.C. arts. 2315.1 and 2315.2. Apollo Marine answered admitting Mrs. Teter's status as surviving spouse and as representative of Mr. Teter's minor children, but denying liability. Apollo Marine reaffirmed and reiterated its averments and affirmative defenses set forth in its prior answer.

On April 25, 2012, Apollo Marine filed a motion for summary judgment. Apollo Marine supported its motion with the deposition testimony of the following five witnesses: Mr. Teter, Richard Foster, Ron Williams, Dimitrios Fronistas, and Roosevelt Batiste. To provide a factual background for deciding this case, we briefly summarize the deposition testimony.

William Teter

On the day of the accident, Mr. Teter was working for American Bridge as an ironworker foreman. At about 10:30 a.m. that morning, he received a call from a supervisor (either Macy Terrell, his direct supervisor, or Dick Foster, another supervisor) ordering him to help an Apollo Marine truck driver unload a spool of rope, which was to go on a certain boat. According to Mr. Teter, his supervisor gave him no unloading instructions “because the truck driver usually takes care of that.” He stated that “this was not a routine thing” that he did as part of his job.

Although Mr. Teter did not know the Apollo Marine driver's name, he described the driver as an African American (black) male in his mid-thirties. Mr. Teter testified that the driver told him that he could not move the spool by himself and asked him for assistance in moving it. He explained that the driver was on the [4 Cir. 4]flatbed of the truck trying to push the spool, which was located near the cab of the truck. The driver was using both his arms and legs and was grunting. At the driver's request, Mr. Teter climbed onto the flatbed of the truck to help the driver. The driver managed on his own to push the spool two or three feet towards the rear of the truck. However, the flatbed of the truck had dents or bolts in it, and the spool became hung up. In order to determine what the spool was hung up on, Mr. Teter climbed off the truck. From the ground he was able to see where the spool was hung up. He told the driver that he would lift the spool over the plate or whatever it was hung up on.

Mr. Teter acknowledged that the spool of rope was five to six feet in diameter and weighed at least four or five hundred pounds. Nonetheless, he testified that it was possible for him to lift the spool because it was not “dead weight;” he explained:

But it was just, it was kind of teeter tottering at that point. It was, like them bolts, it was like, it was kind of like riding on those at that point. It wasn't like it was like dead weight really right at that point. But I told him [the driver] just hold up a second, and I'll lift up just a little bit and we would get the bolts over the top of that edge.

According to Mr. Teter, the next thing that occurred was the spool came down on top of him; he explained:

I told him [the driver] look, I'll lift up just a little bit, and we'll get it over the top. We wouldn't put a lot of pressure onto them, don't shove on it hard, but just lift up just to get them bolts up over this where it was handing up. Okay. When I lifted this up, he shoved as hard as he could, and it came down on top of me. It kind of hit me in the shoulder and kind of knocked me sideways.

[4 Cir. 5]Mr. Teter testified that the blow twisted him around and that he fell back and landed on his hands.

After lunch Mr. Teter reported the accident to one of his supervisors but continued to work. Over night his pain increased. Early the next morning, he reported the accident to American Bridge's office manager, Richard Foster, and a first report of injury form was completed. On that same day, he sought medical treatment for his back injury. As noted elsewhere, Mr. Teter died after this suit was filed.

Richard Foster

Mr. Foster testified that Mr. Teter first reported the accident to him between 6:00 and 6:30 a.m. on the day after it occurred. On that morning, Mr. Foster completed the first report of injury form with Mr. Teter. In the written report, Mr. Teter described the accident as occurring when he was “unloading a spool of 2? manila rope from a truck. Injured's feet slipped on muddy ground surface and as the injured took the weight of the spool of manila rope he felt pain in his lower back.” In his handwritten statement that was attached to the report, Mr. Teter further described the accident as follows:

On March 27, 2003, I was working in yard, and I was in the process of off unloading a spool of manila rope about 10:30 AM, and the spool got caught on bed of truck, as I was pulling on the spool it came loose from its hold. I tried to hold it and ground was wet causing me to slip slightly and I went home that evening. The next day it was hurting my back so I went to the doctor after reporting what happened to RC Foster Office Manager.

On the report, it is indicated that there were no witnesses to the accident. The report does not mention Apollo Marine or its driver.

[4 Cir. 6]Ron Williams

Ron Williams, American Bridge's superintendent, testified that Mr. Teter reported the accident to him either on the day of the accident or the next day. Mr. Teter told him that “he was trying to move this spool of line [rope] on the truck and that he pulled something in his back.”

Mr. Williams described American Bridge's standard procedure for receiving deliveries as follows: (i) when a delivery truck arrives at American Bridge's work site, the driver is required to stop at the office and to advise the office manager, Mr. Foster, of the delivery; (ii) Mr. Foster then calls a superintendent (either Mr. Williams or Macy Terrell) to advise that a delivery truck is there; and (iii) the superintendent then calls a foreman to take care of getting the materials unloaded.

Mr. Williams testified that the materials that were delivered to American Bridge's job site were heavy and could only be unloaded by using either a crane or other equipment. He identified the equipment that American Bridge had available at its job site for unloading as including a nineteen-ton boom truck, a five-thousand pound capacity loader with forks on it, and three crawler cranes. He testified that crane operators were always available; indeed, there were six operators on American Bridge's job site at the time of the incident. He explained that because the contractors delivering materials did not have the necessary equipment, the contractors were not responsible for unloading materials. Mr. Williams testified that Mr. Teter had equipment available to him to unload the spool of rope and that [4 Cir. 7]he did not recall Mr. Teter explaining why he did not use such equipment to unload the rope.

Dimitrios Fronistas

Mr. Fronistas, one of...