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Bujol v. Entergy Services8/14/2002
Mr. Fortuit that such conduct would be "revolting" to a "lay person."
Because of the conflict in the evidence, we cannot find that the jury was manifestly erroneous in concluding ALSA assumed a duty for the safety of the employees at the Plaquemine plant by issuing TI84. As a reviewing court, we must be cautious not to re-weigh the evidence or to substitute our own factual findings simply because we might have decided the case differently. Perkins, 2000-1372, 2000-1387, 2000-1440 at p. 9, 782 So.2d at 612. We must rely on the jury's decision-making in accordance with the manifest error standard of review, which is based not only upon the jury's better capacity to evaluate live witnesses (as compared with our access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts. Canter, 283 So.2d at 724.
The evidence satisfies the introductory portion of section 324A of the RESTATEMENT (SECOND) OF TORTS: ALSA undertook to render technical advice and impose requirements on its subsidiaries worldwide, including subsidiary ALAC. ALSA should have, but wantonly failed to, recognize its advice and safety requirements were necessary for the protection of ALAC's employees. As in Miller, 168 Wis. 2d at 890, 485 N.W.2d at 41, we conclude the parent corporation assumed a duty owed by the subsidiary to provide a safe workplace.
Having found support in the record for the jury's conclusion that ALSA assumed a duty for safety at ALAC's Plaquemine plant, the remainder of the inquiry required by section 324A of the RESTATEMENT (SECOND) OF TORTS is clearly satisfied by the evidence. The Wisconsin Supreme Court in Miller explained the analysis:
Once an assumption of duty is shown under the introductory portion of section 324A, the remaining portion of the introduction and subsections (a), (b) and (c), establish when liability for assuming such a duty arises. Liability for the actor arises if the actor failed to exercise reasonable care in the undertaking arid the requirements of subsections (a), (b) or (c) are met.
Under subsection (a), liability arises where the actor's failure to exercise reasonable care in the undertaking increases the risk of harm to the third person. If a parent corporation unreasonably undertook activities and such activities increased the risk of harm to its subsidiary's employees, and such increase was a cause of the employee's injuries, then the parent corporation would be liable under section 324A(a). However, if it can be shown that the parent corporation exercised reasonable care in undertaking its activities, or the activities did not increase the risk of harm, or the increased risk was not a cause of the employee's injuries, then the parent corporation cannot be held liable under section 324A(a). [Underscoring added.] Miller, 168 Wis.2d at 884-885, 485 N.W.2d at 39.
The liability of ALSA arose when it assumed the duty of developing and imposing mandatory safety requirements and then failed to exercise reasonable care in disseminating its safety requirements to ALAC and in enforcing its mandatory regulations in the former Big Three plants. We emphasize that ALSA's liability arises not because of a duty to control its subsidiary, but from its failure to enforce its mandatory safety requirements at the Plaquemine plant. ALSA voluntarily assumed a duty owed by ALAC to its employees for their safety.
The argument that safety at the Plaquemine plant was the responsibility of ALAC, not ALSA, is similar to the argument of Bristol-Myers in Miller, which the Wisconsin court rejected as follows:
We do not adopt the supplant-supplement standard because it
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