 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Brunet v. Avondale Industries12/5/2000
al and societal rights and obligations must be considered.
In the present case, the trial judge chose not to allow the jury to be charged with strict liability as defined under LSA-C.C. art. 2317. During the charge conference, the trial judge stated that Avondale had a duty in negligence to Brunet under LSA-C.C. arts. 2315 and 2316, but did not have a duty to Brunet under LSA-C.C. art. 2317. I disagree.
As noted above, in order to prove strict liability, Brunet need only prove that he was injured by a defective product in the custody of Avondale. There is no question that Brunet suffered injury . Dr. Liuzza testified that Brunet's exposure to asbestos was a substantial cause of his lung cancer. Dr. Liuzza further stated that the scar tissue in his lungs from the asbestosis he had previously contracted was not a substantial cause of the lung cancer. At the conclusion of the deliberation, the jury found that Brunet's lung cancer was directly attributed to his exposure to asbestos at Avondale's facility. Absent a manifest abuse of discretion, I do not believe that the jury erred in this conclusion. The first element of a strict liability claim, the injury, has been proven.
The second element of a strict liability claim that a plaintiff must prove is that the thing which caused the injury was defective. As noted above, a thing is considered defective if it presents an unreasonable risk of harm. Testimony and evidence have proven that continuous exposure to asbestos and the dust accompanying the use of asbestos is harmful and extremely dangerous. Brunet was exposed to asbestos-containing products used at Avondale throughout the twenty- eight years that he was employed there. Brunet testified by deposition that while employed at Avondale, he used products such as gaskets, cloth, cement, and pipe covering all of which contained asbestos. In order to use these products effectively, they often had to be cut, or in the case of the cement, mixed into a mud-like substance. When the gaskets, cloth or pipe covering were cut, they released asbestos dust into the air which was inhaled by Brunet. When the cement was mixed, it also released dust into the air. Brunet did not use, nor was he provided, a mask or respirator when using these asbestos-containing products. Brunet's deposition testimony was supported by the testimony of other workers at the Avondale facility. Expert witnesses testified that asbestos fibers in the dust, if inhaled or ingested, would be a substantial cause of lung cancer. It is my conclusion that Brunet's work with the asbestos-containing products posed an unreasonable risk of harm and the product must be considered defective. The second element of a strict liability claim has been proven by Brunet.
Avondale disputes the allegation that it had custody, or garde, of the asbestos-containing products. This is the third and final element of a strict liability claim. It is Avondale's contention that since the products were used on ships which only passed through the repair yard, it did not actually have control over the products. "Custody," for purposes of strict liability, does not depend upon ownership, but involves the right of supervision, direction, and control as well as the right to benefit from the thing controlled. Additionally, mere physical presence of the thing on one's premises does not constitute custody.
Brunet alleges that Avondale did have custody of the products because it had control over the products and they were used both in the facility and on the ships. Determining who has garde of a thing is a question of fact. Considerations relevant to this determination include: (1) the benefit received from the thing; and (2) the right of di
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Louisiana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|