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Editor's note: Opinion released October 30, 2000

10/30/00

SUPREME COURT OF LOUISIANA Number 00-C-0628 FLOYD JOSEPH versus BROUSSARD RICE MILL, INC. ET AL. On writ of certiorari to the Court of Appeal, Third Circuit, Parish of Calcasieu

KNOLL, J. At issue before us in this personal injury case is whether the lower courts properly applied the law of judgment notwithstanding the verdict (JNOV) to the jury's finding of fault, its apportionment of that fault, and award of damages FACTS Floyd Joseph (Joseph), an employee of Lake Charles Stevedores (Stevedores), worked as a longshoreman at the Port of Lake Charles (Port). Joseph was injured on November 3, 1994, working as a utility man port-side when numerous 110 pound sacks of rice fell on him in a warehouse. The sacks of rice came from the Broussard Rice Mill (Broussard) in Mermentau, Louisiana. It is undisputed that Broussard originally filled the polyweave sacks with 110 pounds of rice and stacked them on pallets; there were 36 to 42 sacks of rice on each pallet, six sacks to a layer. To lessen the chance of having rice sacks fall, Broussard utilized a longstanding method of crosstying the rice sacks on each pallet1 and employed an automatic gluing mechanism to inject glue between the layers of rice sacks.

Crosstying the sacks involves stacking them on the pallets so that each layer of sacks lies in a different configuration than the layers directly above and below. Broussard used a four and two method of crosstying. On one layer four sacks faced the same direction and two sacks faced another direction; on the next layer, the position of the sacks was reversed.

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Broussard shipped the stacked rice sacks on pallets from Mermentau to Lake Charles on flatbed trucks. When the rice left Mermentau it was stacked one pallet high, and, as additional security, the pallets were strapped to the bed of the truck. As the rice arrived at the Port, Stevedores hired warehousemen to off-load the rice pallets from the trucks and stack the pallets three-high in the warehouse. On the day of the accident, rice sacks had fallen in the warehouse as longshoremen were bringing the rice pallets on forklifts to a waiting cargo ship. Stevedores hired Joseph to pick up the rice sacks that had fallen from the stacked pallets in the warehouse. As Joseph was picking up these fallen sacks, two pallets of rice suddenly collapsed, completely covering him as he stood with his back to the stacked pallets. Curtis Shuff, Jr. (Shuff) was in the warehouse at the same time moving stacked pallets of rice by forklift from the warehouse to a loading area alongside a cargo ship. Shuff came to Joseph's aid, quickly removing the sacks of rice from atop Joseph. As described by Shuff, Joseph was lying face down on the concrete floor; he was pale and, except for moans, was unresponsive. Joseph was taken to the hospital where he was treated and released. Within days of the accident, Joseph felt worse and began treatment with various orthopedic specialists. Subsequently, Joseph underwent two surgeries, one to repair a hernia and another to repair several cervical discs at two levels. Later, it was determined that Joseph's bilevel cervical fusions had failed and he was further diagnosed as having thoracic outlet syndrome which may ultimately require surgical intervention. At the time of trial, Joseph had not returned to work and was suffering lower back pain as well as pain in the right knee.

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Joseph filed suit against Broussard.2

After Broussard was placed into

bankruptcy, its insurer, Mutual Service Insurance Co. (MSI), was substituted as a party defendant. MSI specifically alleged Joseph's comparative fault, as well as fault on the part of the Stevedores, an unnamed defendant.3 Stevedores and its

Longshore/Harborworker's insurer, Signal Mutual Indemnity Associated, Ltd. (Signal Mutual), intervened to recover medical and indemnity payments made to and on behalf of Joseph. A jury returned a verdict finding Joseph, Broussard, and the Stevedores at fault and awarding damages totaling $482,760.4 It allocated fault 13.6% to Broussard, 72.4% to Stevedores, and 14% to Joseph. In accordance with the allocation of fault, judgment was rendered in Joseph's favor against MSI for $65,655.36. The trial court also recognized the intervention of the Stevedores and Signal Mutual and awarded reimbursement of $112,136.32. On Joseph's motion for judgment notwithstanding the verdict,5 the trial judge absolved the Stevedores and Joseph of fault, and reallocated 100% fault to Broussard. The trial judge also increased the jury's damage award from $482,760 to $1,011,743.6

Originally, Joseph also sued Farmers Rice Mill (Farmers). After it was learned in discovery that Farmers had not bagged and transported the rice stacks that fell in the warehouse, Joseph voluntarily dismissed it from the lawsuit. Although Stevedores was not made a party to the lawsuit, the jury considered the fault of Stevedores pursuant to LA. CIV. CODE art. 2323 which allows a jury to consider the fault of a non-party. In this case, Stevedores was the non-party employer of Joseph. The jury awarded $68,245 for past and present medical expenses; $35,181 for future medical expenses; $71,400 for loss of past wages; $184,659 for loss of future earning capacity; $96,000 for pain and suffering and loss of enjoyment of life; and $27,275 for permanent disability. The intervenors, Stevedores and their insurer, Mutual, also filed a motion for judgment notwithstanding the verdict. In the trial court, they announced their alignment with the arguments advanced by Joseph. The trial judge increased the jury award for loss of past wages from $71,400 to $100,683; raised the award for loss of future earning capacity from $184,659 to $332,634; raised the jury award of $96,000 for physical and mental pain and suffering, past and future, as well as for loss of enjoyment of life to $400,000; and increased the jury award of $27,275 for permanent disability to $75,000. The trial judge 3
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The Court of Appeal, Third Circuit, affirmed the trial judge's JNOV on the finding and allocation of fault, but reinstated the jury's damage award except for the awards for physical and mental pain and suffering, loss of enjoyment of life, and permanent disability. Joseph v. Broussard Rice Mill, 99-1210, slip op. at 6 (La. App. 3 Cir. 2/2/00). Utilizing the manifest error standard of review, the appellate court raised these latter awards from a total of $123,275 to $225,000, finding the jury award abusively low. We granted the writ application of MSI to consider the propriety of the lower courts' use of the JNOV procedure. Joseph v. Broussard Rice Mill, Inc., 00-0628 (La. 5/5/2000), 760 So. 2d 1185. For reasons which follow, we affirm the JNOV as it pertains to Joseph's assessment of fault and as to the appellate court's treatment of the damage award; however, we reverse the JNOV as to Stevedores's fault. JUDGMENT NOTWITHSTANDING THE VERDICT LA. CODE CIV. PROC. art. 1811 controls the use of JNOV. Although the article does not specify the grounds on which a trial judge may grant a JNOV, in Scott v. Hospital Serv. Dist. No. 1, 496 So. 2d 270 (La. 1986), we set forth the criteria used in determining when a JNOV is proper. As enunciated in Scott, a JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. The motion should be denied if there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial

further conditionally granted Joseph's motion for new trial if the appellate court reversed the JNOV. 4

judgment might reach different conclusions. Scott, 496 So. 2d at 274. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. Anderson v. New Orleans Pub. Serv., Inc., 583 So. 2d 829, 832 (La. 1991). This rigorous standard is based upon the principle that "[w]hen there is a jury, the jury is the trier of fact." Scott, 496 So. 2d at 273; Jinks v. Wright, 520 So. 2d 792, 794 (La. App. 3 Cir. 1987). In reviewing a JNOV, the appellate court must first determine if the trial judge erred in granting the JNOV. This is done by using the aforementioned criteria just as the trial judge does in deciding whether to grant the motion or not, i.e. do the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict? If the answer to that question is in the affirmative, then the trial judge was correct in granting the motion. If, however, reasonable persons in the exercise of impartial judgment might reach a different conclusion, then it was error to grant the motion and the jury verdict should be reinstated. Anderson, 583 So. 2d at 832. Joseph's comparative fault as an employee Broussard contends that the lower courts erred in reversing the jury's allocation of 14% fault to Joseph. It argues that Joseph should have noticed the problem if it was obvious that the lot of rice shipped from Broussard was improperly crosstied. It further maintains that Joseph turned his back to these stacks of rice even though it presented an obvious danger and failed to notify the Stevedores that the rice sacks were falling. This Court has clearly stated that the absolute defenses of assumption of the risk and contributory negligence are no longer viable as they have been subsumed by

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comparative fault principles. Murray v. Ramada Inns, Inc., 521 So. 2d 1123 (La. 1988); see also Pitre v. Louisiana Tech Univ., 95-1466, 95-1487 (La. 5/10/96), 673 So. 2d 585, cert. denied, 519 U.S. 1007 (1996). Rather, where an employee takes actions pursuant to the discharge of his employment duties in the face of a known risk, which actions are reasonable in relation to those duties, then the employee is not comparatively negligent. Feurtado v. Zapata Gulf Marine Corp., 99-1510 (La. App. 4 Cir. 1/12/00), 751 So. 2d 379, 383; see also Bergeron v. Blake Drilling & Workover, 599 So. 2d 827, 843-44 (La. App. 1 Cir.), writ denied, 605 So. 2d 1117, 1119 (La. 1992). Factors considered in the determination of what is reasonable include the

availability and practicability of other options. Richard v. St. Paul Fire & Marine Ins., 94-2112 (La. App. 1 Cir. 6/23/95), 657 So. 2d 1087, 1091. Utilizing this jurisprudence in the present case, it was incumbent upon Broussard to establish by a preponderance of the evidence that Joseph was comparatively at fault. See Terro v. Casualty Reciprocal Exch., 93-593 (La. App. 3 Cir. 2/2/94), 631 So. 2d 651, 654, writ denied, 94-522 (La. 4/22/94), 637 So. 2d 157; Smith v. Jack Dyer & Associates, 633 So. 2d 694 (La. App. 1 Cir. 1993). It is clear that Joseph was injured while he was performing the task that his employer assigned, namely picking up fallen rice sacks at the direction of Stevedores. In order to accomplish this task, the evidence was unrefuted that Joseph had to position himself between the stacked rice pallets and the fallen sacks. The record is equally clear that although Joseph may have known that his job duties were dangerous, his only option was to refuse to perform the task he was assigned. On the other hand, Broussard presented no evidence that shows that Joseph was performing his work assignment incorrectly or with no regard for his personal safety. Joseph's actions in

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discharging his employment duties under the circumstances presented were clearly reasonable. In light of the record evidence before us, we find reasonable minds could not arrive at a conclusion that Joseph was comparatively at fault. The jury apparently was persuaded by Broussard's defense which essentially was Joseph's assupmption of the risk and contributory negligence.7 This was error. We have firmly established that defenses of assumption of the risk and contributory negligence have been subsumed by comparative fault principles. Joseph was merely performing his job duties which were inherently dangerous. Broussard offered no evidence of Joseph's fault, but rather evidence of the inherent danger of his job duties. Under these circumstances, we find the trial court properly granted plaintiff's motion for JNOV, reversing the jury's allocation of fault to Joseph. Stevedores's Fault The jury assessed Stevedores with 72.4% fault. In their consideration of this jury finding, the lower courts rested their reversal on the failure of Broussard to present evidence in support of its assertion that Stevedores was at fault. After carefully reviewing the record, we find that the facts and inferences do not point so strongly and overwhelmingly in favor of Stevedores that reasonable persons might have reached a different conclusion. When a defendant urges the fault of a non-party, it is incumbent upon that defendant to provide evidence which preponderates that fault actually exists on the part of the non-party. Terro, 631 So. 2d at 651; Smith, 633 So. 2d at 694. The common

In its jury instructions, the trial court told the jury, as follows: "If you conclude that the plaintiff's conduct in this incident was a deviation from the conduct we would normally expect of a reasonably prudent person and that his conduct helped to cause his injury, then you must assign a percentage of responsibility to the plaintiff according to the instructions I will give you." In the present case, there was no showing that Joseph's conduct was abnormal or that his conduct caused his injury. 7

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standard of proof in civil cases is a preponderance of the evidence. Lasha v. Olin Corp., 625 So. 2d 1002, 1005 (La. 1993); Succession of Lyons, 452 So. 2d 1161, 1165 (La. 1984). Proof by direct or circumstantial evidence is sufficient to constitute a preponderance, when taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not. Lasha, 625 So. 2d at 1005; Jordan v. Travelers Ins. Co., 245 So. 2d 151, 155 (La. 1971); see also Odeco Oil & Gas Co. v. Nunez, 532 So. 2d 453, 456 (La. App. 1 Cir. 1988), writ denied, 535 So. 2d 745 (La. 1989); Starks v. Kelly, 435 So. 2d 552, 556 (La. App. 1 Cir. 1983); FRANK L. MARAIST, 19 LOUISIANA CIVIL LAW TREATISE: EVIDENCE & PROOF,

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