Beach v. Pointe Coupee Electric Membership Corp.
Beach v. Pointe Coupee Electric Membership Corp.
Concurring Opinion
concurring.
Based upon my review of the record, I find no genuine issues of fact as to whether the plaintiffs were aware that the oil in the transformer was PCB-contaminated. Therefore, I will concur.
Opinion of the Court
13The issue in this appeal is whether defendants, Pointe Coupee Electric Membership Corporation and Federated Rural Electric Insurance Exchange, (Pointe Cou-pee) can be held responsible for injuries to Randy Beach, Donald McGehee, and S. Paul Didier, (plaintiffs), employees of independent contractor, while performing a repair. The trial court granted Pointe Cou-pee’s motion for summary judgment and from that judgment plaintiffs appeal. For the following reasons we reverse the judgment of the trial court.
FACTS AND PROCEDURAL HISTORY
This matter arises from injuries that were allegedly caused by an exposure to PCB-contaminated oil from an electrical transformer owned by Pointe Coupee. Plaintiffs’ employer, Louisiana Generating, L.L.C. (LaGen), is in the business of re
This matter came for hearing on Pointe Coupee’s motion for summary judgment; the trial court granted said motion. Plaintiffs appealed alleging 14that the trial court erred in dismissing the suit against Pointe Coupee because genuine issues of fact exist.
STANDARD OF REVIEW
A summary judgment should be rendered if the pleadings, deposition, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material facts, and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966. The mover has the burden of establishing that reasonable minds must inevitably conclude that on the facts before the court the mover is entitled to judgment as a matter of law. Sanders v. Posi-Seal International, 95-0701, p. 5 (La.App. 1 Cir. 2/23/96) 668 So.2d 742, 746. The applicable standard of review is de novo,-using the same criteria used by the trial court in deciding whether summary judgment should be granted. Id.
DISCUSSION
Plaintiffs’ main argument is that a principal cannot escape liability when the principal gives express or implied authorization to an unsafe practice. Plaintiffs contend that there is ample evidence in the record that Pointe Coupee expressly authorized the repair, was present during the repair, and failed in a duty to warn plaintiffs that dangerous contaminates were present in the transformer oil.
We agree insofar as plaintiffs argue that material questions of fact are unresolved. As discussed in Wicker v. Harmony Corporation, 00-0231, p. 5 (La.App. 1 Cir. 3/28/01), 784 So.2d 660, 665, under most civil traditions, when a person without danger to himself or others can provide aid or rescue to another in distress, he has a duty to do so. Id. Accordingly, under Louisiana civil law precepts, a person who observes that another is in obvious peril, has the slight duty to warn of known imminent dangers when [she can do so without personal risk. Id. at 666. It is a fact that Pointe Coupee employees were aware of the PCB-contaminated oil in the transformer. However, it is a contested fact whether the plaintiffs were also aware of this contaminated oil. It is also contested whether any Pointe Coupee employees breached a duty to warn the LaGen employees of the danger when they were present at the time of the repairs and knew or should have known that the La-Gen employees did not have the proper safety gear.
Concluding that questions of fact remain surrounding whether Pointe Coupee breached its- duty to warn of a known danger, we reverse the summary judg
DECREE
For the above reasons, we reverse the trial court judgment granting summary-judgment in favor of Pointe Coupee. The cost of this appeal is assessed against Pointe Coupee Electric Membership Corporation and Federated Rural Electric Insurance Exchange.
REVERSED.
GAIDRY, J., concurs and assigns reasons.
Reference
- Full Case Name
- Randy BEACH and Susan Beach v. POINTE COUPEE ELECTRIC MEMBERSHIP CORPORATION and XYZ INSURANCE COMPANY Donald McGehee and Stephanie McGehee v. Pointe Coupee Electric Membership Corporation and XYZ Insurance Company S. Paul Didier and Charlotte M. Didier v. Pointe Coupee Electric Membership Corporation and Federated Rural Electric Insurance Exchange
- Cited By
- 3 cases
- Status
- Published