Andries v. Nelson, 46 So.2d 333 (La.App. 1st Cir. 1950); Standard Motor Car Co. v. St. Amant, 134 So. 279 (La.App. 1st Cir. 1931). See, for similar principle, when a constructed thing fails shortly after being put into use. Joyner v. Aetna Casualty Surety Co., 259 La. 660, 251 So.2d 166 (1971). 3.
The Louisiana Supreme Court employs a burden shifting approach in breach of warranty cases where construction designed as a permanent installation fails shortly after being put into use. Town of Slidell v. Temple, 164 So. 2d 276 (La. 1964); Joyner v. Aetna Cas. & Sur. Co., 251 So. 2d 166 (La. 1971). In Town of Slidell, the plaintiff hired the defendant-contractor to construct a pipeline.
Apparently plaintiff had some physical disability and wished to eliminate the necessity in the future of disembarking from his vehicle to walk to the platform. Plaintiff contends on this appeal (and apparently did so at trial) that under the principles set forth in Joyner v. Aetna Casualty Surety Company, 259 La. 660, 251 So.2d 166 (1971) an inference of faulty workmanship and/or materials arose under the facts of this case and the burden of proof was therefore upon the defendant to establish that the defects and/or damages resulted from causes other than faulty workmanship and/or materials. Joyner held:
Plaintiff, after destroying the best evidence obtainable to explain whether the heating unit was defective or played a part in causing the fire, now takes the position that it has no evidence to establish the cause of the fire, that the explanation of the loss is exclusively within the knowledge of defendants, and that plaintiff thus is entitled to invoke res ipsa loquitur. In Joyner v. Aetna Casualty Surety Company, 259 La. 660, 251 So.2d 166 (1971), Justice Hamlin, in a concurring opinion, stated: "I note that in Footnote No. 3 of the majority opinion, it is stated: `Unfortunately, Moorehead's employees, upon removing the broken fulcrum, had sent it to the city dump on the day of or the day after the accident.
Under the Code articles an owner-lessor is strictly liable for loss suffered by a tenant which is caused by a vice or defect of the premises. King v. Allstate Insurance Company, 224 So.2d 42 (La.App., 1st Cir. 1969); Anslem v. Travelers Insurance Company, 192 So.2d 599 (La.App., 3d Cir. 1966); Morgan v. American Indemnity Company, 180 So.2d 429 (La.App., 1st Cir. 1965); Joyner v. Aetna Casualty & Surety Company, 240 So.2d 545 (La.App., 2d Cir. 1970), amended 259 La. 660, 251 So.2d 166 (1971). Moreover, a lessor's obligations extend beyond the building or space actually occupied by the tenant and encompass all features of the premises available to the lessee.
Having paid damages to the Tebow Plaintiffs, BEPCO is entitled to seek contribution or indemnity from its co-obligor, Santa Fe. La.C.C. art. 1805; Constans v. Choctaw Transport, Inc., 712 So.2d 885 (La.App. 4th Cir. 1997). To the extent that pollution damages arose from the use and closure of the East Pit, where Bass claims it had no involvement, BEPCO may be entitled to full indemnity from Santa Fe. La.C.C. art. 1804; Smith Brothers Co. v. New Orleans North East Railroad, 109 La. 782, 33 So. 769 (1903); Truxillo v. Gentilly Medical Building, Inc., 225 So.2d 488 (La.App. 4th Cir. 1969); Joyner v. Aetna Casualty Surety Company, 259 La. 660, 251 So.2d 166 (1971). A basis for indemnity is restitution, the indemnitor (Santa Fe) having been unjustly enriched when the person seeking indemnity (BEPCO) has discharged liability that was the indemnitor's responsibility.
This indemnity, or recovery over, has been allowed a contractor from his subcontractor and/or supplier, so long as the exclusive fault producing liability has been that of such subcontractor and/or supplier. Appalachian Corporation v. Brooklyn Cooperage Company, 151 La. 41, 91 So. 539 (1922); Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967); Joyner v. Aetna Casualty Surety Co., 259 La. 660, 251 So.2d 166 (1971); Frees Laine v. C. W. Vollmer Co., Inc., 78 So.2d 187 (La.App.Orl. 1955); Hunter v. Mayfield, 106 So.2d 330 (La.App. 2d Cir. 1958); Pittman Construction Company v. Housing Authority of New Orleans, 169 So.2d 122 (La.App. 4th Cir. 1964) cert. denied 247 La. 344, 170 So.2d 865 (1965); A. J. Toups Company, Inc. v. Dixie Building Material Company, Inc., 250 So.2d 111 (La.App. 4th Cir. 1971). The rule of indemnity enunciated in these cases is founded upon the general obligation to repair the damage caused by one's fault (La.Civ. Code Art. 2315) and the moral maxim that "no one ought to enrich himself at the expense of another."
Considering the heavy burden on Ferrington to exculpate himself from any fault, we are unable to say that the failure of himself and his insurer to preserve the defective ball joint, immediately claimed to be the cause of the accident and as a factor exculpating himself from negligence, is without consequence. See concurring opinion (Hamlin, J.) in Joyner v. Aetna Casualty Surety Co., 259 La. 660, 251 So.2d 166, 171 (1971). Ferrington removed the defective joint when he repaired his vehicle about three weeks after the accident, and he threw it away.
Instead, the plaintiff's argument is explicitly limited "to the court's error in refusing to find the contractor solidarily liable with the sub-contractor . . . as a matter of law." Lafayette asserts that the court's failure to find Albert at fault is irrelevant, because Civil Code article 2762, as interpreted in Joyner v. Aetna Casualty Surety Co., 259 La. 660, 251 So.2d 166 (1971), and AM Pest Control Service v. Fejta Construction Co., 338 So.2d 946 (La.App. 4th Cir. 1976), renders a general contractor solidarily liable for any harm caused by a subcontractor. Lafayette thus contends that in this case, Albert's legal liability is established by the 1990 judgment holding the electrical subcontractor liable for all damages suffered as a result of the fire.
Andries v. Nelson, 46 So.2d 333 (La.App. 1st Cir. 1950); Standard Motor Car Co. v. St. Amant, 18 La.App. 298, 134 So. 279 (La.App. 1st Cir. 1931). See, for similar principle, when a constructed thing fails shortly after being put into use. Joyner v. Aetna Casualty Surety Co., 259 La. 660, 251 So.2d 166 (1971). Ticheli v. Silmon, 304 So.2d 792 (La.App. 2 Cir. 1974).