imposing delictual liability under Article 2315 for fault as analogized from the conduct required by Article 669, when gas escaped from a ruptured pipe which, without regard to negligence, caused damages
How later courts described this case
- imposing delictual liability under Article 2315 for fault as analogized from the conduct required by Article 669, when gas escaped from a ruptured pipe which, without regard to negligence, caused damages
- plaintiff fireman may have assumed certain risks, but not the risk created by the defendant's conduct
- “The activities of man for which he may be liable without acting negligently are to be determined after a study of the law and customs, a balancing of claims and interests, a weighing of the risk and the gravity of harm, and a consideration of individual and societal rights and obligations.”
- cs- caping gas used in manufacture of petrochemical products
Written by the judges who cited it.
Later courts went against this
Superseded by statute, as recognized in Murray v. Ramada Inns, Inc.
In Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (La.1971), superseded by statute on other grounds in Murray v. Ramada Inns, Inc., 521 So.2d 1123 (La.1988), the Louisiana Supreme Court noted that in State ex rel.
Distinguished
Distinguished by Trahan v. Highlands Ins. Co., 343 So. 2d 1163 (1977)
This being so it necessarily follows that the damages which Tidwell seeks to recover by way of indemnification from Pemco did not arise as a result of the defect and Weber and Langlois are clearly inapplicable.
The opinion
SUMMERS, Justice
(dissenting).
I agree that the assumption of risk doctrine may properly be invoked as a defense to strict liability. Therefore, a plaintiff who, with full knowledge and appreciation of the danger, voluntarily exposes himself to the risk and embraces the danger cannot recover damages for injury which may occur.
I cannot agree, however, that plaintiff was unaware of or did not assume the risk under the facts of this case. Plaintiff was, at the time of his injury, a paid, trained fireman in the employ of the city of Baton Rouge. This occupation is generally and properly regarded as hazardous. Firemen are routinely exposed to risk of injury or death by the duties they are called upon to perform. One of their duties involves res'cue of persons endangered by harmful gas.
Plaintiff had been taught to work in areas contaminated by gas and he was made aware of the nature of the risk involved. Proper use of safety breathing equipment was part of that training. One precaution this training emphasized was that firemen should assume the worst when in the presence of an unknown gas — the first rule of safety being to protect himself for, if disabled, he was rendered ineffective to perform his duties. This training stressed that the question of self-protection was a matter of individual judgment for firemen.
In addition, the fire truck was equipped with breathing devices consisting of metal air tanks designed to be worn on a fireman’s back. They were held in place by •shoulder straps. A hose connected the oxygen in the tank to a full face mask. This device would make plaintiff’s duty as a truck driver impracticable, but if it was *1093 necessary for him to don the breathing apparatus, regulations permitted him to turn over his driving duties to someone else.
Knowing that he was being called to a rescue mission involving dangerous gas, knowing the precautions he should take to protect himself and realizing that the possibility of injury was part of the risk of his employment as a fireman, plaintiff should not be permitted to recover in this case. McGee v. Adams Paper and Twine Co., 26 A.D.2d 186 , 271 N.Y.S.2d 698 (1966) appealed to Court of Appeal of N. Y., 19 N.Y.2d 673 , 278 N.Y.S.2d 864 , 225 N.E.2d 555 (1967) and Chesapeake & Ohio Ry. Co. v. Crouch, 208 Va. 602 , 159 S.E.2d 650 , cert. denied, 393 U.S. 845 , 89 S.Ct. 128 , 21 L.Ed.2d 115 (1968).
It is no defense to the burden of care imposed on plaintiff by the doctrine of assumption of risk, to contend that other firemen took no precautions and received no injuries, and hence he could not be expected to avail himself of safety precautions, such as the use of the breathing apparatus. Especially is this so when plaintiff experienced definite physical reactions to the gas in time to protect himself, whereas the other firemen did not. Plaintiff was well aware, from his training, that tolerance of individuals to the ill effects of gas varied.
I respectfully dissent.