 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Guidry v. Coregis Insurance Co.12/29/2004
failure to provide him with an insulated ladder, as well as Melvin's failure to place proper significance on adherence to OSHA's safety rules.
CAUSATION --SUBSTANTIAL FACTOR TEST
Cause-in-fact is one of the essential elements of the Plaintiffs' claim. It is usually determined by using a "but for" test. In other words, if the plaintiff would not have been injured "but for" the defendant's conduct, the cause-in-fact component is met.
In the above analyses, we have reviewed the "but-for" causation of the cause-in-fact inquiries. However, when there is more than one action that, allegedly, precipitated an accident, our courts have fashioned a method that is more effective than the "but for" test in establishing cause-in-fact. This method is often referred to as the "substantial factor test."
We find a reasonable basis for the jury's determinations that Lucky's actions, Melvin's actions, Signko's actions, and Sponco's failure to incorporate an insulated bucket into the ladder's design were all substantial factors in Melvin's accident. Specifically, Lucky placed the signs in a dangerously close proximity to the power lines; Lucky's operator asked Melvin to work on those particular signs after he arrived on site; Melvin violated OSHA's ten-foot rule and failed to use a safety harness or seat belt, or request that Entergy shield the lines to make them safe; OSHA held Signko responsible for Melvin's OSHA violation, and Signko provided Melvin with an uninsulated ladder to perform his job , despite the availability of insulated ones; and, finally, Sponco manufactured an uninsulated ladder even though, as its president admitted, aerial ladders dominate the sign industry, and are, therefore, likely to be operated at heights equivalent to power lines.
FAULT ALLOCATION
Allocating fault requires factual determinations. "As with other factual determinations, the trier of fact is vested with much discretion in its allocation of fault. Therefore, an appellate court should only disturb the trier of fact's allocation of fault when it is clearly wrong or manifestly erroneous." In testing the jury's allocation for manifest error, we look to the same factors that guided its determination. Our supreme court enumerated these factors in Watson v. State Farm Fire and Casualty Insurance Company:
(1) whether the conduct resulted from inadvertence or involved an awareness of the danger,
(2) how great a risk was created by the conduct,
(3) the significance of what was sought by the conduct,
(4) the capacities of the actor, whether superior or inferior, and
(5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.
The jury assessed the majority of the fault to Melvin and his employer, Signko. It allocated twenty percent to Lucky and a mere five percent to Sponco. Melvin was a very experienced sign worker. In fact, Mr. Kojis testified that he was one of the most experienced at Signko. Melvin had ample experience with this particular ladder. In his deposition, Mr. Hayes admitted that Melvin mentioned to him that he was going to have to be careful of those power lines. Thus, Melvin demonstrated an awareness of the danger. The risk created by violating the 10-foot rule was grave, and, in fact, proved to be fatal. Mr. Langley testified that Melvin knew of the ten-foot rule and that he also knew that he had the option of calli
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Louisiana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|