Sam Bell, Plaintiff-appellee,north-west Insurance Company, Intervenor-appellee, v. Jet Wheel Blast, Division of Ervin Industries, and Northamerican Mfg., & Insurance Co., Defendants-appellants, 709 F.2d 6 (5th Cir. 1983)

Sam Bell, appellee, brought this diversity jurisdiction suit under 28 U.S.C. § 1332 to recover for injuries occasioned while employed at Vulcan Foundry. He was injured while working on a large shot blast machine used to clean large metal castings. The machine was manufactured and installed by appellant Jet Wheel Blast, Division of Ervin Industries, Inc. As found by the jury, Bell's injury occurred when his hand got caught in the chain and sprocket drive of the conveyor system of the machine because of a lack of an adequate guard at the particular place on the drive that the injury occurred.

The case was submitted to the jury on separate theories of product liability and negligence, both alleged to be on the part of the appellant manufacturer-installer, Jet Wheel Blast. The jury responded to interrogatories by finding that the product, the shot blast machine, sold by appellant was defective, the defect was a proximate cause of the injury to Bell, and Bell did not assume the risk of the injury. Under the negligence theory, the jury answered interrogatories finding that the appellant seller of the product was negligent, that the negligence was a proximate cause of the injury to Bell, but that Bell was guilty of contributory negligence. Based upon the answers to these interrogatories, and a finding by the jury of $150,000 damages, the district court awarded judgment for plaintiff-appellee Bell on the strict liability claim. Jet Wheel Blast appeals.

The contention on appeal is that the jury exonerated appellant from liability by finding Bell guilty of "contributory negligence," which under Louisiana law constitutes "victim-fault" and defeats a strict liability claim based upon product liability as well as a claim based upon negligence. We find that the law of Louisiana gives a clear negative answer to this contention. We uphold the jury verdict and affirm the judgment of the district court.

It is well established in Louisiana law that contributory negligence is not a defense to strict liability. Langlois v. Allied Chemical, Inc., 258 La. 1067, 249 So. 2d 133, 140 (1971). Appellant relies upon the citation of several intermediate appeals decisions in Louisiana courts which if taken out of context seem to equate assumption of risk with contributory negligence. The distinction, however, is clearly analyzed and explained by our brother Tate, a distinguished Louisiana jurist, who discusses the issue thoroughly in Rodrigue v. Dixilyn Corp., 620 F.2d 537 (5th Cir. 1980). That case points out that assumption of risk involves "first, knowledge and appreciation of a danger, and second, a voluntary encountering of it." In contrast, "The essence of contributory negligence is simply carelessness." Id. at 539, quoting Crowe, The Anatomy of a Tort, 22 Loyola L.Rev. 903, 915 (1976).

Judge Tate then deals with those intermediate appellate court decisions upon which the appellants rely:

The defendants refer us to language in several intermediate court decisions, some of which seem to have recognized contributory negligence as a defense in Article 2317, 2318 or 2321, strict liability cases, and some of which recognize only assumption of risk. For the most part, the former decisions are distinguishable or not squarely in point, but to the extent that they imply that ordinary carelessness or inadvertence of a plaintiff may exonerate a strict liability defendant, they seem to be inconsistent with the law clearly pronounced by the State Supreme Court in Langlois (supra) and Loescher (Loescher v. Parr, 324 So. 2d 441 (La.1975)). (Footnote omitted.) 620 F.2d at 543.

These established Louisiana authorities, none of which is even mentioned by appellant, show without question that there is no inconsistency in a jury verdict which finds a defendant guilty of contributory negligence ("ordinary carelessness or inadvertence") but yet not having assumed a risk ("having knowledge and appreciation of a danger ... and ... a voluntary encountering of it", emphasis added). Thus, under Louisiana law, the mere carelessness or inadvertence which defeats a negligence claim does not defeat a strict liability claim, since defeat of the strict liability claim can occur only upon the much stronger showing of the voluntary assumption of the known risk created by the defect. See also our decision in LeBouef v. Goodyear Tire & Rubber Co., 623 F.2d 985, 991 (5th Cir. 1980).

AFFIRMED.