FROM 25TH JDC, PARISH OF PLAQUEMINES NO. 58-141, DIVISION
"A" Honorable Kevin D. Conner, Judge
D. Bravo BRAVO LAW FIRM Leo J. Palazzo PALAZZO LAW FIRM,
Scott A. Decker COUNSEL FOR PLAINTIFF/APPELLEE
M. Lavelle Sarah Perkins Reid COTTEN SCHMIDT & ABBOTT,
L.L.P. COUNSEL FOR DEFENDANT/APPELLANT
composed of Judge Roland L. Belsome, Judge Rosemary Ledet,
Judge Tiffany G. Chase)
L. BELSOME JUDGE.
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.
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.
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.
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,
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.
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.
trial court has great discretion in its consideration of
evidentiary matters such as motions in
limine. 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. 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.
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.
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.
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, the trial court found that
the probative value of the challenged evidence outweighed any
prejudicial effect it might have. Additionally, the trial
court found the incident investigation report was admissible
under the business record exception to the hearsay rule.
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
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
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.
Notwithstanding the Verdict
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. This Court, in Loconte Partners, LLC