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Despaux v. Rsc Equipment Rental Inc.

Court of Appeals of Louisiana, Fourth Circuit

April 25, 2018

KEN DESPAUX
v.
RSC EQUIPMENT RENTAL INC., ET AL

          APPEAL FROM 25TH JDC, PARISH OF PLAQUEMINES NO. 58-141, DIVISION "A" Honorable Kevin D. Conner, Judge

          David D. Bravo BRAVO LAW FIRM Leo J. Palazzo PALAZZO LAW FIRM, Scott A. Decker COUNSEL FOR PLAINTIFF/APPELLEE

          Paul M. Lavelle Sarah Perkins Reid COTTEN SCHMIDT & ABBOTT, L.L.P. COUNSEL FOR DEFENDANT/APPELLANT

          (Court composed of Judge Roland L. Belsome, Judge Rosemary Ledet, Judge Tiffany G. Chase)

          ROLAND L. BELSOME JUDGE.

         This lawsuit arises from an accident that occurred on September 22, 2009, when the boom on a Terex AL4000 portable light tower fell and struck the appellee, Kenneth Despaux, on the back of his head at the ConocoPhillips Alliance Refinery in Belle Chase, Louisiana. At the time of the accident, Mr. Despaux was employed by Kellogg, Brown & Root ("KBR") who was the general maintenance contractor at the Conoco refinery. Conoco had leased the light tower from RSC Equipment Rental, Inc. ("RSC"), for the use of Cajun Constructors, Inc. ("Cajun"), another contractor at the refinery.

         On September 21, 2009, the day before the accident, Mr. Despaux's KBR work crew, was assigned to replace an underground waterline at the refinery. Unable to complete the work before sundown, KBR Foreman, Pernell LeBlanc, decided to borrow a light tower from Cajun's work site. After moving the tower to KRB's job site, LeBlanc was able to raise the boom in a vertical position but was unable to raise or "telescope" the lights to a higher position. When the work was completed, the light tower was left in the vertical but not fully telescoped position.

         The following morning, on September 22, 2009, the KRB crew was ordered to return the light tower to Cajun's work site. Mr. Despaux hitched the tower to a pickup truck and another member, Elden Russ, checked the telescopic pin on the tower boom. At that time, the boom fell down and struck Mr. Despaux on the head.

         As a result of the injuries sustained, Mr. Despaux filed suit against Conoco; RSC; its insurer, Liberty Mutual Insurance Company; two employees of RSC, Lynn Hurst and Richard Babin; and Cajun. Plaintiff later amended the petition to add the manufacturer of the tower, Amida Industries, Inc.[1]

         After a two-week jury trial, a verdict was returned finding Mr. Despaux 5% at fault and his co-workers 55% at fault for the accident. Additionally, Amida Industries was found 25% at fault and RSC Equipment 15% at fault. In accordance with the verdict, a judgment was rendered as follows: $527, 086.25 against Amida Industries, Inc., and $316, 252.05 against the RSC Equipment Rental, Inc. Amida moved for a JNOV, which was denied; and this appeal followed.

         On appeal, Amida claims that the trial court erred in denying its Motion in Limine to exclude evidence of a 2013 incident and further erred by denying its Motion for Judgment Notwithstanding the Verdict.

         Motion in Limine

         The trial court has great discretion in its consideration of evidentiary matters such as motions in limine.[2] A ruling on a motion in limine will not be disturbed unless it is determined on appeal that the trial court abused its great discretion. [3]Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. C.E. art. 401. All relevant evidence is generally admissible. La. C.E. art. 402. Nonetheless, relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time." La. C.E. art. 403.

         Just prior to this case's first trial date, Mr. Despaux's counsel received information regarding a 2013 incident involving another Terex AL4000 portable light tower. In December of 2013, another accident involving the same make and model of light tower occurred at the same refinery then operated by Phillips 66 Company. In that incident, Daniel Mouton, an employee of Turner Industries, was ordered to get a light tower. The light tower was owned by United Rentals, Inc., which had purchased all of RSC assets. At the time United Rentals had leased the tower to PSC Industrial Services. The light tower was already in a vertical telescoped position when Mouton came upon it. Mouton started to crank the winch to lower the light boom from the vertical position assuming that the "vertical" locking pin was fully engaged. As he was lowering the tower, he experienced a "jerking" motion and the boom fell and hit another piece of equipment.

         There was an incident investigation report prepared by Peter Ernst, Phillips 66 Maintenance Supervisor. The light tower model at issue in both 2009 and 2013 accident has one winch that performs two separate functions: raises the mast from the horizontal position and telescopes the mast out vertically. After the 2013 accident, Phillips 66 decided to utilize a model that had two separate winches to manage the separate functions and prohibited the use of single winch light towers at the refinery.

         Four of the Defendants, (RSC, Liberty Mutual, Lynn Hurst, and Richard Babin), filed motions in limine to exclude any evidence related to the 2013 light tower incident. The motion came for hearing before the trial court; and, after hearing arguments of counsel, the matter was taken under advisement. Later, the trial court issued a judgment denying the motions in limine and permitted the incident investigation report into evidence. Relying on the criteria set forth in Lee v. K-Mart[4], the trial court found that the probative value of the challenged evidence outweighed any prejudicial effect it might have.[5] Additionally, the trial court found the incident investigation report was admissible under the business record exception to the hearsay rule.

         In Lee, the First Circuit discussed the admissibility and the relevance of other accidents. The court stated that the other incident must be closely related to the accident, injury, or hazard in the current case. Thus, as it pertains to relevance, the court must consider if the accident occurred at substantially the same place and under substantially the same conditions, and it must have been caused by substantially the same or similar defect or danger.[6]

         Here, the similarities in the two incidents cannot be denied. The light towers that collapsed were the same model with the same winch system used at the same refinery. In both instances, the equipment was owned and rented by RSC and the witnesses' accounts of the handling of the equipment prior to the collapse are more similar than distinguishable. Lastly, the conclusion of the 2013 incident report that the Terex AL4000 portable light tower should no longer be used on the job site had a probative value that outweighed the prejudicial impact.

         Considering that both accidents occurred at the same place, involved the same model of light tower that was on lease from the same equipment rental company, that damage occurred when the boom fell from a vertical position when a crewmember attempted to rotate the boom down, and that the fall may have been caused by a malfunctioning winch and/or locking pin; that the investigation report links the 2009 and 2013 accidents together; and that great discretion is afforded to the trial court in evidentiary matters, the trial court did not errin finding that the 2013 accident was substantially similar and relevant in the present case. As such, the trial court did not abuse its discretion in denying the motion in limine filed by Amida.

         Judgment Notwithstanding the Verdict

         Amida further appeals the trial court's denial of its motion for a judgment notwithstanding the verdict (JNOV). It is well established that a JNOV is only warranted when the facts and evidence are so overwhelmingly in favor of the moving party that reasonable jurors could not arrive at a contrary verdict.[7] This Court, in Loconte Partners, LLC ...


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