Opinion
No. 2009 CA 1548.
January 19, 2011.
I agree with the majority that JLG Industries, Inc. is not entitled to summary judgment as a matter of law. However, I believe the rationale found in Hercules v. Stevens Shipping Co., 765 F2d. 1069 (11th Cir. 1985) to be the more persuasive reasoning. Federal maritime law utilizes a system of strict comparative fault. With the adoption of comparative fault in Louisiana, many of the theories formerly used in the analysis of contributory negligence are no longer applicable. Concepts such as last clear chance and assumption of the risk have been subsumed into the theory of comparative fault. I believe this also to be the case with superseding cause. "Unless it can truly be said that one party's negligence did not in any way contribute to the loss, complete apportionment between the negligent parties, based on their respective degrees of fault is the proper method for calculating and awarding damages in maritime cases. . . " Hercules, 765 F2d. at 1075.
The focus of this motion for summary judgment is the superseding action of the Rowan employee. The only claims against JLG are those by Rowan for defective manufacture of the man lift. Whether these claims would survive another motion for summary judgment are not before us.
For these reasons I respectfully concur.