Opinion
No. 11563.
April 7, 1981.
APPEAL FROM TWENTY-NINTH JUDICIAL DISTRICT COURT, PARISH OF ST. CHARLES, STATE OF LOUISIANA, HONORABLE THOMAS J. MALIK, J.
Adelaide Baudier, Metairie, for plaintiff-appellant Daniel D. Curole.
Edmund W. Golden, New Orleans, for defendants-appellees U.S. Fidelity Guaranty Co. and Grimaldi Plumbing and Heating, Inc.
Hammett, Leake Hammett, John A. Stewart, Jr. and F.M. Stoller, New Orleans, for defendants-appellees Louisiana Power Light Co. and Ebasco Services, Inc.
Carville Edrington, William P. Golden, Jr., LaPlace, for defendants-appellees J.A. Jones Const. Co.
Before GARRISON, CHEHARDY and STOULIG, JJ.
This is an appeal from a judgment of the district court denying plaintiff recovery for injuries sustained by him on August 19, 1976, when he injured his back while delivering an air conditioner compressor at the site of the Waterford III nuclear power plant in Taft, La. Plaintiff filed suit in negligence against the following parties:
1. Louisiana Power Light — the landowner
2. Ebasco Services, Inc. — L.P. L.'s agent for construction of the plant
3. J.A. Jones Construction Co. — a contractor with L.P. L. and Ebasco
4. Grimaldi Plumbing and Heating Inc. — a subcontractor of Jones
At the time of the accident, plaintiff was employed by Flettrich Environmental Services, Inc. Flettrich was a contractor with Ebasco and LPL for materials and equipment and a subcontractor through Grimaldi for labor costs.
After a full trial on the merits, the district court rendered judgment in favor of LPL and Ebasco, dismissing plaintiff's suit against them. The trial court additionally declared several third-party demands moot in light of the court's judgment on the principal demand.
From that judgment which we affirm, plaintiff has appealed.
Plaintiff's truck was parked 60 to 70 feet away from the compressor due to be replaced. The ground was a shell surface and several not yet erected telephone poles were on the ground. Plaintiff was carrying a compressor and stepping over a telephone pole when he felt a "pop" in his back.
The trial court judge found that plaintiff failed to use a handcart provided to him by his employer, that plaintiff disobeyed his employer's directions to use the handcart on his truck, that plaintiff knew he needed assistance as evidenced by the prior loading of the compressor on plaintiff's truck and that plaintiff could have avoided walking over the telephone poles by using an alternate path.
We agree with the findings of the trial judge that plaintiff's accident was caused solely by his own negligence, and cannot conclude that the trial court was manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La., 1978).
For the reasons discussed, the judgment of the district court is affirmed.
AFFIRMED.
STOULIG, J., concurs with written reasons.
Plaintiff, an employee of Flettrich Environmental Services, Inc., was injured while performing work in fulfillment of his employer's subcontract with Ebasco, an agent of Louisiana Power Light (LPL). Because of this contractual relationship, plaintiff became the statutory employee of the defendant under R.S. 23:1061 and as such his exclusive remedy to be compensated for his job-related injury is restricted to an action for workmen's compensation benefits. (R.S. 23:1032).
In Gray v. Louisiana Power and Light Company, 247 So.2d 137 (La.App. 4th Cir. 1971) this court held that the construction and maintenance of plants for the transmission of electricity was authorized by the charter of Louisiana Power Light Company and that employer-employee relationships arising out of contracts in pursuance of the objects of its charter would fall within the purview and scope of the workmen's compensation statutes.
In addition, plaintiff has no right to maintain his suit for damages arising out of the alleged negligence of LPL as the owner of the property. Louisiana does not recognize the dual capacity doctrine of liability. In Hebert v. Gulf States Utilities Co., 369 So.2d 1104, 1107 (La.App. 1st Cir. 1979) the court held:
"Is the landowner to be held liable in tort for breach of legal obligations when he is also immune from tort actions because he is also the statutory employer of the employee? We find that he cannot. We have reviewed extensively the dual capacity doctrine and find it inapplicable. Even if the doctrine were viable in Louisiana, the allegations of fault against the landowner are really failure to furnish employee a safe place to work."
Having concluded that the pleadings and evidence in this matter clearly demonstrate that plaintiff has no right of action sounding in tort against the defendant, this court, acting under the authority of C.C.P. art. 927, should declare this conclusion as an additional basis for affirmation of the judgment of the trial court.
Rosenthal v. Caballero, 309 So.2d 797 (La.App. 4th Cir. 1975).
AFFIRMED.