The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
CA 11-724
TYNIRSHA W. RHINE
VERSUS
BAYOU PIPE COATING, ET AL.
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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 103271
HONORABLE GERARD B. WATTIGNY, DISTRICT JUDGE
**********
J. DAVID PAINTER
JUDGE
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Court composed of Ulysses Gene Thibodeaux, Billy Howard Ezell, and J. David
Painter, Judges.
AFFIRMED.
Raymond Morgan Allen
P.O. Box 3204
Lafayette, LA 70502
COUNSEL FOR DEFENDANTS/APPELLANTS:
The Bayou Companies, LLC and the Gray Insurance Company
Morgan J. Wells, Jr.
Ste. 1100, Two Lakeway Center
3800 N. Causeway Blvd.
Metairie, LA 70002
COUNSEL FOR DEFENDANT/APPELLANT:
The Bayou Companies, LLC and the Gray Insurance Company
Kenneth W. Jacques
201 St. Charles Ave.
Suite 4314, Place St. Charles
New Orleans, LA 70170
COUNSEL FOR PLAINTIFFS/APPELLEES
Tynirsha W. Rhine, Individually and On Behalf of the Minor
Children, Melvin Rhine, III, and Ty’Nise Latori Rhine and
Kendra Johnson on behalf of the minor child, Keyshawn Johnson
Louis R. Koerner, Jr.
P.O. Box 4297
Houma, LA 70361
COUNSEL FOR PLAINTIFFS/APPELLEES
Tynirsha W. Rhine, Individually and On Behalf of the Minor Children,
Melvin Rhine, III, and Ty’Nise Latori Rhine and Kendra Johnson on
behalf of the minor child, Keyshawn Johnson
PAINTER, Judge.
Defendants, the Bayou Companies, LLC (Bayou) and its insurer, the Gray Insurance
Company, appeal the judgment of the trial court finding them at fault in connection
with the death of their employee, Melvin Rhine, and awarding damages to his wife
and children as a result. Finding no error in the trial court judgment, we affirm.
FACTS
Melvin Rhine, Jr. was killed on July 15, 2003, while performing his regular
work duties as a taper for the Bayou Companies, LLC.
In 1999, Bayou contracted with Bauhuis, USA to design, manufacture, and
install a pipe coating plant for the purpose of wrapping joints of pipe with concrete to
give the pipe negative buoyancy so it could be used underwater. The pipe coating
plant was originally designed so that the first section would wrap one inch of concrete
around the joint and the second section would impinge, or blow, the remaining inches
of concrete onto the joint. After the joints were coated, thick sheet plastic was
mechanically wrapped around the joint to hold the wet cement in place during the
curing process. Once the plastic was applied to the joints, workers manually applied
tape around the plastic to hold it in place during the cement curing process. The joints
of pipe moved through the cementing process on a spiral conveyor at the inbound
section which rotated the joints and pushed them toward the cement coating process.
After the cement was applied, the joints were supported and rotated by five separate
belt head conveyors which were spaced approximately 4-5 feet apart. None of the belt
head conveyors designed, manufactured, and installed by Bauhuis had side guarding.
Installation of the pipe coating plant was complete in January 2000.
Between October 2000 and March 31, 2001, Bayou decided to remove the
impingement section and use only the wrap method to apply concrete to the joints of
pipe. Bayou supplemented the Bauhuis belt heads with a locally-built belt head copied
from the Bauhuis belt heads. After the impingement method was abandoned, taping
was done immediately after the plastic was applied. Rhine died when he was caught
between and pulled into the rotating pipe and the belt of the newest belt head
conveyor which had been installed by Bayou employees.
Tynirsha W. Rhine, wife of the deceased, filed an intentional tort action against
Bayou both individually and on behalf of the minor children, Melvin Rhine, III, and
Ty’Nise Latori Rhine. Kendra Johnson brought suit on behalf of Keyshawn Johnson,
the deceased’s child born of a relationship with her. In addition to Bayou, Plaintiffs
named Gray Insurance Company, Bauhuis Group, Bauhuis International, B. V., and B
& L Bauhuis, USA, Inc. (collectively Bauhuis) as Defendants.
After a trial on the merits, the trial court rendered judgment in favor of
Plaintiffs, apportioning fault 50% to Bayou and the Gray Insurance Company, 50% to
Bauhuis, and awarding damages as follows:
1. In favor of Tynirsha Rhine, individually and on $173,006.
behalf of the minor children, Mervin Rhine, III and
Ty’Nise Rhine for past loss of support in the amount
of $173,006.
2. In favor of Kendra Johnson, on behalf of her minor $20,400.
child, Keyshawn Johnson, for past loss of support in
the amount of $20,400.
3. In favor of Tynirsha Rhine, individually and on $946,927.
behalf of the minor children, Melvin Rhine, III and
Ty’Nise Rhine for future loss of support in the amount
of $946,927.
4. In favor of Kendra Johnson, on behalf of her minor $27,488.
child, Keyshawn Johnson, for future loss of support in
the amount of $27,488 from May 1, 2010 until
Keyshawn reaches 22 years of age.
5. In favor of Tynirsha Rhine for funeral expenses in $7,750.
the amount of $7,750.
6. In favor of Tynirsha Rhine for loss of consortium in $500,000.
the amount of $500,000.
7. In favor of Tynirsha Rhine on behalf of the minor $400,000.
child, Melvin Rhine, III, for loss of consortium in the
amount of $400,000.
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8. In favor of Tynirsha Rhine, on behalf of the minor $300,000.
child, Ty’Nise Rhine for loss of consortium in the
amount of $300,000.
9. In favor of Kendra Johnson, on behalf of her minor $300,000.
child, Keyshawn Johnson, for loss of consortium in the
amount of $300,000.
10. In favor of Tynirsha Rhine for survival damages in $12,500.
the amount of $12,500.
11. In favor of Tynirsha Rhine, on behalf of the minor $12,500.
child, Melvin Rhine, III, for survival damages in the
amount of $12,500.
12. In favor of Tynirsha Rhine, on behalf of the minor $12,500.
child, Ty’Nise Rhine for survival damages in the
amount of $ 12,500.
13. In favor of Kendra Johnson, on behalf of her minor $12,500.
child, Keyshawn Johnson, for survivor damages in the
amount of $12,500.
TOTAL AWARD $2,725,571.00
Bayou and the Gray Insurance Company appeal.
DISCUSSION
Testimony of Plaintiffs’ Expert, Robert Borison
Defendants assert that the trial court erred in failing to disqualify Plaintiffs’
expert, Robert Borison, pursuant to Daubert v. Merrell Dow Pharmaceuticals. Inc.,
504 U.S. 579, 113 S.Ct. 2786 (1993), and in allowing him to testify as to Bayou’s
intent, subjective knowledge, and state of mind with regard to the accident.
Defendants argue that the Daubert hearing held by the trial court was flawed in that
the trial court failed to determine the scientific basis for Borison’s opinions.
A trial judge has wide discretion in determining whether to allow a
witness to testify as an expert, and this includes the determination of how
much and what kind of education and/or training adequately qualify an
individual as an expert, and his judgment will not be disturbed by an
appellate court unless it is clearly erroneous. Abshire v. Wilkenson, 2001-
0075 (La.App. 3 Cir. 5/30/01), 787 So.2d 1158. The court need not
determine that the expert testimony a litigant seeks to offer into evidence
is irrefutable or certainly correct. Keener v. Mid-Continent Casualty, 01-
1357, p. 12 (La.App. 5 Cir. 4/30/02), 817 So.2d 347, 354-355[, writ
denied, 02-1498 (La. 9/20/02), 825 So.2d 1175]. As with all other
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admissible evidence, expert testimony is subject to being tested by
“vigorous cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof.” Id. (citing Daubert, 509 U.S.
at 596, 113 S.Ct. at 2798). As the jurisprudence indicates, there is a
crucial difference between questioning the methodology employed by an
expert witness, and questioning the application of that methodology or
the ultimate conclusions derived from that application. Only a question of
the validity of the methodology employed brings Daubert into play.
Tadlock v. Taylor, 02-0712, pp. 4-5 (La.App. 4 Cir. 9/24/03), 857 So.2d 20, 26, writ denied,
03-3265 (La. 3/12/04), 869 So.2d 819.
At the Daubert hearing, counsel for Defendants questioned Borison extensively
as to the scientific basis for the opinions set out in his report. After the hearing, the
trial court gave the following oral reasons:
[Counsel for Defendant’s] point is that the expert, Mr. Borison, has taken
no courses which support[ ] his opinion that this accident was inevitable
or it was certain to happen or it was intentional. I don’t know what
courses he could have taken to make that sole statement, okay? The only
thing I know of that would provide that, I guess, would be a psychologist
because of his experience and his education or a lie detector. Those
things direct themselves to truth of a statement, okay? So he hasn’t done
either of those things.
However, Mr. Borison in this case is an expert witness. His
expertise is in safety. His expertise is in accident investigation. His
expertise is in guarding equipment, in designing guards for equipment,
and in safe operations of equipment in industrial situations. And that’s
what he’s going to testify to in his expertise. Those things certainly, in
my opinion, are relevant because, though the Court has a lot of
experience in dealing with various kinds of accidents and those kind of
things, the Court can be helped by his testimony in regards to the
happening of accidents with guards or without guards, happening of
accidents at pinch points or not at pinch points. And of course his
testimony goes to the fact that – and also his experience with OSHA and
safety shows the real problems and difficulties and probabilities of
accidents at pinch points.
Now I know probability doesn’t satisfy the criteria, okay? And I’m
not saying that, if he only establishes probability, he meets the criteria.
But I think the study of probability could lead one who deals with those
incidents to be able to reach an opinion as to the inevitability of that type
of accident happening. And he may know that. And I think he’s had
sufficient experience and training to know that, because he’s designed
guards, he’s investigated accidents, he’s familiar with pinch points, and
so that he can relate different types of situations and the danger arising
from those situations to an individual because of his experience. That can
lead the Court to be able to make the opinion the Court needs to make, if
it makes it, of whether the accident was substantially certain to happen or
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whether it was inevitable, whether it was intentional or whether it was
just negligent.
So, though he hadn’t taken a specific course to be able to say
maybe to give the ultimate opinion, I find that he has the expertise
through his training and experience to be able to assist the Court in
what’s dangerous, what’s not dangerous, and how dangerous things are,
and his experience in how dangerous they are, related to whether there
are guards or no guards and the type of accidents that have happened. So,
in that sense, I find that he can express his opinion as an expert in the
case. And I find that he’s qualified.
The trial court made clear that while it was aware that Borison could not give
the ultimate opinion as to whether the accident was substantially certain, it felt that
experience and training qualified Borison to give opinions as to what was dangerous
and how dangerous the work place was. Given the trial court’s determination that the
expert testimony would help it understand the evidence or determine a factual issue,
we find that the decision to allow Borison to testify was within its wide discretion,
especially since this was a bench trial. See Benoit v. Turner Indus. Group, LLC, 10-
1460 (La.App. 3 Cir. 5/4/11), 63 So.3d 443, Holzenthal v. Sewerage & Water Bd. Of
New Orleans, 06-796 (La.App. 4 Cir. 1/10/07), 950 So.2d 55, writ denied, 07-294 (La.
3/3/0/07), 953 So.2d 71.
Intentional Tort
Defendants further assert that the trial court erred in finding that the intentional
tort exception to the workers’ compensation act was applicable. It is their position that
the facts of the case do not rise to the level of an intentional tort. This court recently
explained:
If an employee is found to be in the course and scope of his
employment when he is injured and the employer invokes the defense of
tort immunity, the employee’s remaining recourse against his employer is
a claim for intentional tort. La.R.S. 23:1033.
The Louisiana Supreme Court in Batiste v. Bayou Steel Corp., 10-
1561, pp. 2-3 (La. 10/1/10), 45 So.3d 167, 168-69, discussed the factors
involved in proving an intentional act so as to escape the coverage of the
workers’ compensation act.
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In order to recover in tort against Bayou Steel under La.
R.S. 23:1032(B), plaintiffs must prove Mr. Batiste’s injury resulted
from an “intentional act.” In Bazley v. Tortorich, 397 So.2d 475
(La.1981), we explained an intentional act requires the actor to
either 1) consciously desire the physical result of his act, whatever
the likelihood of that result happening from his conduct; or (2)
know that the result is substantially certain to follow from his
conduct, whatever his desire may be as to that result.
Hebert v. Richard, 10-1417, p. ___ (La.App. 3 Cir. 7/6/11), ___ So.3d ___, ___. Here,
as in Batiste, Plaintffs do not allege that Bayou consciously wanted to cause harm to
the deceased. Rather, they assert that the deceased’s injuries were substantially certain
to follow from Bayou’s conduct.
Although Defendants assert that Bayou’s conduct does not rise to the level of
an intentional tort as a matter of law and that the trial court committed legal error, we
must apply a manifest error standard of review.
Where there is conflict in the testimony, reasonable evaluations of
credibility and reasonable inferences of fact should not be disturbed upon
review, even though the appellate court may feel that its own evaluations
and inferences are as reasonable. The appellate review of fact is not
completed by reading only so much of the record as will reveal a
reasonable factual basis for the finding in the trial court, but if the trial
court or jury findings are reasonable in light of the record reviewed in its
entirety, the court of appeal may not reverse even though convinced that
had it been sitting as the trier of fact, it would have weighed the evidence
differently. Where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be manifestly erroneous. When
findings are based on determinations regarding the credibility of
witnesses, the manifest error-clearly wrong standard demands great
deference to the trier of fact’s findings. Rosell v. ESCO, 549 So.2d 840,
844 (La.1989).
Robinson v. N. Am. Salt Co., 02-1869, pp. 8-9 (La.App. 1 Cir. 6/27/03), 865 So.2d 98,
105, writ denied, 03-2581 (La. 11/26/03), 860 So.2d 1139.
The trial court first reviewed the law with regard to the application of the
intentional tort exception to the exclusive remedy rule of the Louisiana Worker’s
Compensation Act, noting that:
[A]ll of the negligence which was brought out in the trial of the Manager
and Safety Personnel of the cement plant at Bayou is not relevant to
recovery under the intentional tort exception of the Compensation Act.
There is a substantial amount of evidence which would support
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negligence and even gross negligence, however, which is not satisfactory
to come within the intentional tort exclusion of the Compensation Act.
The court then outlined the testimony and evidence as well as its reasons for ruling on
the intentional tort question, in written reasons for judgment, as follows:
On August 10, 2001, Curley Gilliam was a taper at the cement
plant on the conveyor system. . . . He had been using the taping process
since the beginning of this operation. He was holding a roll of tape in his
hand and was applying tape with his hand to the visqueen on the turning
pipe and allowing the tape to come off of the roll of tape and onto the
visqueen on the turning pipe. There was another person taping the
opposite side of the pipe. Gilliam was standing on the south side of the
pipe with the pipe rotating away from him from bottom to top. The
accident to Curley Gilliam occurred when the taper on the opposite side
of the pipe had the tape slip out of his hand while he was attempting to
tape the pipe and the loose tape wrapped around the wrist of Curley
Gilliam on the opposite side of the pipe. Curley Gilliam was pulled over
the rotating pipe by the tape and turning pipe. As he was pulled over the
turning pipe, however, his foot hit the safety trip wire, which was located
about a foot above the turning pipe. When he hit the safety trip wire, that
turned off the conveyor and the pipe stopped turning and Curley Gilliam
fell to the ground, but was otherwise not seriously injured. He did not fall
into any pinch point created by the belt heads, rubber belts and turning
pipe. However, in the taping process, he was caught by the tape of the
opposite side taper and pulled over the turning pipe as he attempted to
tape. The supervising personnel at Bayou had a safety meeting every
morning at the cement plant before they began operations. It became a
common story at the safety meetings for persons to be careful about
putting their hands onto the turning pipe or near the conveyor or pinch
points. It was often used as an example, the Curley Gilliam incident, in
which the employees were warned to be very careful in working around
the turning pipes so the same thing would not happen to them. The
Curley Gilliam incident was used as an example by the Safety Director,
David Bourgeois, and by the Plant Manager, Bobbie Boffone, and others.
After the Curley Gilliam incident, Bobbie Boffone, Tom Moncla
and others in the cement plant began giving consideration to the
installation of guards on the belt heads and conveyor system in order to
protect against the type of accident of the taper, Curley Gilliam. They
realized the hazardous nature of the conveyor system and the taping
process by the tapers using their hands to place the tape onto the pipe and
being in the vicinity of the turning pipe and belt heads and conveyor
pulleys. As a result thereof, particularly Tom Moncla looked at and
considered the installation of guards. Bobbie Boffone also discussed this
matter with Tom Moncla. However, Tom Moncla said they were not able
to figure out how to implement the guarding system on the conveyor
system, belt heads and pinch points. Since they were not able to figure it
out, they did not put up any guards. They allowed the taping process to
continue thereafter in the same exact manner.
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Some twenty-three (23) months later, on July 15, 2003, Melvin
Rhine was the taper in the process, but on the opposite side of the pipe
from which Curley Gilliam had sustained his accident on August 10,
2001. Melvin Rhine was working in the four (4’) foot area designated for
the taper on the backside of the pipe. In working that area, he was
attempting to tape the pipe by placing the tape with his hand onto the
turning pipe and then holding the roll of tape in his hand while the pipe
was being taped. In doing so, somehow, the tape caught the glove of
Melvin Rhine while he was taping and pulled his right hand, [and] right
arm up to his head and shoulders between the pipe and the conveyor belt.
(Deputy Bonnie Gunner testimony). The conveyor was subsequently
stopped and reversed and Melvin Rhine was taken out of the conveyor
system, but he was dead. His roll of tape was also found underneath the
pipe, between the pipe and the rubber conveyor belt.
The testimony in the trial establishes that Melvin Rhine had fifteen
(15) seconds to tape the first two (2’) feet of the beginning of the rotating
pipe and that he had a total of thirty (30) seconds for the rotating pipe to
make it through the four (4’) feet area that he had to tape in. It is obvious
that the taping process is one that needs to be made accurately, timely
and without the possibility of any miscue.
The testimony of the two (2) experts in the case, Mr. Borison and
Mr. Killingsworth, establishes that guards should have been made and
placed onto the conveyor system, particularly in the area of the pinch
points, where Melvin Rhine was killed[,] by the initial manufacturer of
the equipment and subsequently by Bayou. Both experts agree that the
OSHA requirements required guarding on the conveyor system,
particularly at the pinch points, such as where Melvin Rhine was killed.
Borison testified that the Curley Gilliam accident was identical to
the Melvin Rhine accident and that it should well have put Bayou and its
employees on notice of a hazardous and dangerous condition. He testified
that Curley Gilliam was taping the rotating pipe as was required of the
tapers and that similarly Melvin Rhine was taping the rotating pipe as
required of the tapers. They were doing the identical task, though each
from a different side of the rotating pipe. The only differences were that
Curley Gilliam was caught by the tape from the taper on the opposite side
of the pipe, which caused him to be dragged over the rotating pipe until
his foot hit the safety trip switch and Melvin Rhine, on the other hand,
somehow got his taping hand caught by tape on the pipe which pulled
him into the pinch point of the rotating pipe, turning belt head and the
rubber conveyor belt.
Bayou and its employees, as well as their expert, Steven
Killingsworth, take the position that the accidents are not identical and
that the Curley Gilliam accident did not serve to put Bayou on any notice
of the danger to the tapers relative to pinch points and getting killed
during the taping process.
This Court finds that their argument is ingenuous and incorrect.
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After the Melvin Rhine accident, the cement plant was shut down.
OSHA came in and made an inspection and ordered that guarding be
placed throughout the system before Bayou could begin operations again.
This time, however, the Bayou employees took only one (1) week to
obtain necessary information and a booklet advising them as to the
guarding process to be used for pipe plant. During that period of time,
they discovered necessary plans for guarding the conveyor system,
installed the guarding and then began operations once more. This is in
stark contrast to after the Curley Gilliam accident where they were
unable to figure out any manner in which to guard the conveyor system
that would not hamper production. (See testimony of Boffone and
Moncla). Not only did Bayou come up with guards for the entire system,
but also put up guards to prohibit and prevent the tapers from leaning
over and getting their hands near the pinch points and turning pipe. In
addition to that, they developed a long handle for the taper to use and the
roll of tape and taping was done at the other end of the long handle so
that the taper could not get near the turning pipe or pinch points. A
second person was then used to assist the taper and when the taper was
done, he would pull the taping handle to himself and another person
would actually cut the tape in an area where both were prevented from
getting near the turning pipe or pinch points.
Robert Borison, the expert for plaintiffs, testified that the Curley
Gilliam and Melvin Rhine accidents were similar. In fact, he testified that
they were identical because the taper was caught by the turning pipe and
put in a position of peril. Moncla testified that they could not come up
with a guard to comply with the OSHA regulations and therefore, they
continued to let the tapers tape without the appropriate guarding. Robert
Borison testified that with his experience,with this type of conveyor
systems in the past that the accident of Melvin Rhine was substantially
certain to happen. The area subjects the workers to an accident which
was substantially certain to happen to any taper, not just Melvin Rhine.
The area needed to be guarded and was not. Borison further testified that
the warnings given to the employees everyday at the safety meeting to
keep their hands away from the turning pipe and the conveyor system
and the pinch points shows the knowledge of the employer in this
warning that they were certain of an accident happening to the employees
at these pinch points and had no way of preventing it.
Borison also testified that the documentation of Bayou sets forth to
their employee[s] that they are not allowed to work around moving pipe
unless safety stop activators are used. However, the tapers were required
to put their hand on the turning pipe or very close to it in order to get the
tape started on the pipe as it turned. In the personnel file of each
employee, Bayou tells the employee not to go around or be exposed to
the turning pipe. Therefore, the own advise of Bayou tells these
employees that they cannot work around a turning pipe. Therefore,
Bayou was exposing their workers to an obvious hazard in telling them
they can avoid the hazard by being careful. This is, of course, never
adequate and is not an appropriate safety measure. Borison also advises
that the guarding and the new tape pole designed and used after the
Melvin Rhine accident was an appropriate way to address the problem.
After Melvin Rhine’s death, guards were placed on the belt heads and at
the pinch points. Additionally, the taper was required to use a pole on
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which the tape was attached far from his body and his body was
prevented by guards from getting close to the pipe and pinch points. All
of this was available to Bayou prior to the Melvin Rhine incident and
certainly after the awareness of the Bayou employees after the Curley
Gilliam accident.
Additionally, Borison testified that Bayou instructed their
employees to stay clear of the conveyor at all times. They instructed them
not to wear loose clothing when working near the conveyors. Borison
testified that this is an impossible safety warning. This shows that Bayou
was aware of the hazard and aware of the certainty of a disastrous
accident for the tapers. Borison further testified that the requirement for
the tapers to put their hands onto the pipe with the tape in order to start
the tape on the turning pipe was a violation of the safety policy of Bayou
as given to their own employees. Use of the tape and the manner in
which it was applied was a violation of their own safety policy.
Borison also testified that the evidence of the injury, more
particularly the photographs, indicated that Melvin Rhine started taping
the pipe outside of the pinch point and that he got drawn into the pinch
point when the tape caught on his glove and pulled his hand, arm and
shoulder into the pinch point between the belt head, conveyor and turning
pipe. In addition, there was no emergency safety stop that was available
to Melvin Rhine as had been available to Curley Gilliam. Again, he
asserts that the two (2) accidents are the same with the same risks, but
that Melvin Rhine did not have the safety mechanism that was available
to Curley Gilliam that saved him.
Borison testified that this accident was substantially certain to
happen. There was a hazard and unless the hazard was corrected or
guarded, this accident is substantially certain to happen. Additionally, the
Curley Gilliam accident evidenced that the Melvin Rhine accident was
substantially certain to happen. The equipment, if not guarded or
redesigned is certain to have the Melvin Rhine accident. Additionally, the
Bayou people knew that it was certain to happen because each day they
warned their people not to put their hands near the pinch points, which
the Bayou people knew were dangerous and also knew of the previous
Curley Gilliam incident.
Similarly, Borison asserts that the Bayou employees were aware
that OSHA’s safety rules and regulations required the guarding to protect
against just this type of catastrophic accident. Borison testified that it is
inevitable that this accident would happen and that it definitely will
happen. He can’t say when it’s going to happen, nor that it’s going to
happen every time someone tapes. However, Bayou knew that someone
who experiences Melvin Rhine’s position is going to get pulled into the
pinch point and is going to die. Anytime someone is taping and their
hands get caught on the tape and/or the pipe, they are going to get pulled
into the pinch point and killed. According to Borison, Bayou deliberately
did not guard this hazardous situation and they exposed Melvin Rhine to
the inevitability of his death.
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Even the expert for the defendants, Steven Killingsworth, testified
that Melvin Rhine got caught in the pinch point or convergent point. This
pinch point or convergent point exists to the right of where Melvin Rhine
was taping in the four (4’) foot area. Killingsworth testified that Melvin
Rhine either over-reached or held onto the tape and was pulled into the
pinch point by the turning pipe, belt head and rubber conveyor belt.
Killingsworth testified that Melvin Rhine was not supposed to be taping
within the belt head area. There is no testimony, however, that Melvin
Rhine was taping within the belt head area. The testimony is that the tape
got caught on his hand and pulled him into the pinch point or belt head
area.
Again, o[f] course, Killingsworth testified that according to
OSHA, the belt heads should have been guarded, as well as the pinch
points. Killingsworth further testified that Bayou did not provide Melvin
Rhine with a safe place to work and that was in violation of OSHA’s
regulations. He further testified that because Tom Moncla could not
come up with a guarding system after the Curley Gilliam accident, Bayou
should have hired someone to advise them and to design an appropriate
guarding system rather than shaking their heads and not doing anything.
Bayou was in violation of OSHA as a result. He further testified that the
taping pole and dispenser should have been in place before the Melvin
Rhine incident. He further testified that there was nothing in writing
telling the tapers where they should tape from. He did not testify as to the
substantial certainty of the accident happening or it not happening.
The Court finds that there is a preponderance of the evidence that
the Bayou supervisory employees knew that the accident to Melvin
Rhine and his death were substantially certain to follow from the conduct
of the Bayou employees in not appropriately guarding the conveyor
process, and allowing the hazardous activity to continue.
Thus, this Court finds that the Bayou employees knew from the
operations which they failed to guard that the accident and death of
Melvin Rhine w[ere] substantially certain to follow their failure to
appropriately guard this conveyor process for Melvin Rhine and the other
tapers.
This Court therefore finds that Bayou is liable to the plaintiffs
herein as this accident was substantially certain to occur and thus is an
exception to the Workmen’s Compensation Statute. Accordingly, there
will be Judgment in favor of plaintiffs and against Bayou . . . .
Based on its reasons for judgment, we find that the trial court’s determination
has a basis in the record. The conclusion draws not merely on the testimony of
Borison but on that of Defendants’ own expert and the testimony of Bayou’s
employees. Therefore, we find that the trial court was not manifestly erroneous in
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finding Bayou liable for an intentional act, and we will not overturn its decision on
appeal.
Quantum of Damages
Finally, Defendants assert that the trial court made excessive awards of
damages in making identical $300,000.00 loss of consortium awards to Rhine’s
daughter, Ty’Nise Rhine, who lived with him and his son, Keshawn Johnson, who
lived in North Louisiana with his mother and had never lived with Rhine.
The trial court explained its award as follows:
Plaintiff, Kendra Johnson, sues on behalf of her minor child,
Keyshawn Johnson. Kendra and Melvin Rhine met at ULM in August of
1996. They dated and were involved in a personal relationship from
which she became pregnant. She told Melvin Rhine that she was
pregnant. Melvin Rhine never denied that he was the father of the child
and did not request any paternity test. She was a virgin at the time that
she became pregnant for Melvin Rhine and was not involved with any
other men. When that semester was over at ULM, she returned to her
home in Shreveport to complete her pregnancy. After she left ULM and
returned to Shreveport to complete her pregnancy, Melvin Rhine would
come and visit her in Shreveport and stay at the residence with her
mother. Keyshawn Johnson was born on December 19, 1997. She told
Melvin Rhine about the birth. He contributed to the support of that child.
Sometimes he paid cash, but most of the time, he sent money orders. He
would send money orders every two (2) weeks, or at least once per
month. After the child was born, Melvin Rhine would go to Shreveport
and visit with the child and with Kendra Johnson. On occasion, Kendra
Johnson came with her child, Keyshawn Johnson, to Jeanerette to visit
with Melvin Rhine and his family. Keyshawn Johnson called the parents
of Melvin Rhine his grandmother and grandfather. Melvin gave the child
presents at the child’s birthday, Easter and Christmas. Melvin’s parents
would also send presents to the child for those occasions. Melvin
continued to visit with Keyshawn Johnson in Shreveport, where he lived
with his mother, until the time of Melvin's death. Kendra Johnson and
Melvin Rhine would discuss the child, his future, and plans for the future
of the child. Kendra Johnson and Keyshawn Johnson attended the funeral
for Melvin Rhine. They visited with his family, together with his parents.
Kendra Johnson and Keyshawn Johnson became familiar with Tynirsha
Rhine and the children that she had with Melvin Rhine. They were all
extremely cordial with one another.
Keyshawn Johnson took pictures from the funeral of his father and
also copies of poems that were at the funeral. He keeps these items under
his mattress at home so that he always has them there where he knows
and he can look at them often. He knew his father from the visits his
father made to him and through their talking on the telephone on
numerous occasions. Keyshawn Johnson knows that his father played
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football in college. Keyshawn was extremely sad and crying at the
funeral. He does not have a role model any longer since his father has
died. He does however talk on the telephone often with Melvin Rhine,
III, who is the son of Melvin Rhine, from Melvin’s marriage with
Tynirsha Rhine. He and Melvin Rhine, III are close friends and refer to
one another as brothers. Occasionally, Keyshawn Johnson still has crying
spells concerning the loss of his father, whom he misses very much.
....
Though they never lived together, the indication is that the association
between [Keyshawn Johnson and his father] was close, continuing and
valued to a great extent by Keyshawn Johnson, Keyshawn Johnson
particularly has felt the loss of a male role model, his father, as indicated
in his testimony and has caused him suffering since the loss of this father.
Given the evidence and testimony of record, we are unable to find an abuse of
the trial court’s discretion in its award of loss of consortium to Keyshawn Johnson.
CONCLUSION
For these reasons, the judgment of the trial court is affirmed. Costs of this
appeal are assessed to Defendants, the Bayou Companies, LLC and the Gray
Insurance Company.
AFFIRMED.
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