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Brunet v. Avondale Industries12/5/2000
rection and control over the thing.
All manner of asbestos-containing products (such as the gaskets, cloth, cement and pipe covering listed above) were purchased by Avondale from various distributors and manufacturers for use at the repair yard and on the ships. Testimony of various witnesses corroborated the fact that these products were used frequently during the time of Brunet's employment. While mere physical presence does not constitute custody, it is my opinion that Avondale had the right of direction and control over the asbestos-containing products. The products were stored at the repair yard and used both in the repair yard and on the ships. Avondale had control over which products were to be used and how they were to be used. Custody, the third and final element of the strict liability claim, has been proven by Brunet.
Third party fault is a defense to a strict liability claim pursuant to LSA-C.C. arts. 2317 and 2322. The fault of a "third person" which exonerates a person from his own obligation imparting strict liability as imposed by LSA-C.C. art. 2317 is that which is the sole cause of the damage, of the nature of an irresistible and unforeseeable occurrence. Unless the fault of the third party was the sole cause of the plaintiff's harm, the third party fault does not absolve the defendant of its liability under LSA-C.C. art. 2317. (Emphasis added).
It has been Avondale's contention that the product manufacturers are the parties at fault and that their negligence is the cause of Brunet's injuries. Avondale has filed third party claims against numerous product manufacturers and their officers and the jury found eight of these parties liable for Brunet's injuries. As noted above, Avondale's cross claims against the third party defendants were severed from the main demand and the issue of the product manufacturers' negligence or any claim of third party fault was not properly before the trial court at that time. The trial court's error in this regard shall be discussed more fully below.
The trial court erred by not charging the jury with the issue of strict liability. A review of the record reveals that the evidence is sufficient to find Avondale strictly liable for the injuries sustained by Brunet. Brunet bore his burden of proving injury , defect and custody. Third party fault is not an issue and has not been proven at this time. While Avondale must be held liable for damages, it also retains its right to seek contribution from the third party defendants who have been severed from this suit in the main demand.
In the second assignment of error, Brunet alleges that the jury erred by rendering an inadequate award for general damages. The jury returned a verdict awarding Brunet $250,000 in general damages against six product manufacturers and two manufacturer officers. These damages reflect survival damages and do not include wrongful death damages, as the wrongful death claim was dismissed by the trial court and Brunet has not appealed the dismissal.
In appellate review of general damage awards, the court must accord much discretion to the trial court judge or jury. The role of an appellate court in reviewing awards of general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trial court. Only if the reviewing court determines that the trial court has abused its "much discretion" may it refer to prior awards in similar cases and then only to determine the highest or lowest point of an award within that discretion.
Because the discretion vested in the trier of fact is "great," and even vast, an appellate court should rarely disturb an aw
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