111 F.3d 1239 (5th Cir. 1997), 92-7224, Greenwood v. Societe Francaise De

Docket Nº:92-7224.
Citation:111 F.3d 1239
Party Name:37 Fed.R.Serv.3d 719 C.K. GREENWOOD, Plaintiff-Appellee, National Union Fire, Intervenor-Plaintiff-Appellee, v. SOCIETE FRANCAISE DE, et al., Defendants, Societe Francaise De, and Indian Ocean Boat Carriers, Defendants-Appellants.
Case Date:April 28, 1997
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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111 F.3d 1239 (5th Cir. 1997)

37 Fed.R.Serv.3d 719

C.K. GREENWOOD, Plaintiff-Appellee,

National Union Fire, Intervenor-Plaintiff-Appellee,


SOCIETE FRANCAISE DE, et al., Defendants,

Societe Francaise De, and Indian Ocean Boat Carriers,


No. 92-7224.

United States Court of Appeals, Fifth Circuit

April 28, 1997

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[Copyrighted Material Omitted]

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Steve Tilden Hastings, Corpus Christi, TX, Randall Keith Glover, Austin, TX, Elizabeth Ann Davis, Houston, TX, for Plaintiff-Appellee Greenwood.

Kathleen Krail Charvet, McGlinchey, Stafford & Lang, New Orleans, LA, for Intervenor-Plaintiff-Appellee.

Edward D. Vickery, Royston, Rayzor, Vickery & Williams, Houston, TX, Ralph F. Meyer, Royston, Rayzor, Vickery & Williams, Corpus Christi, TX, for Defendants-Appellants.

Appeal from the United States District Court for the Southern District of Texas.

Before JOHNSON, GARWOOD and JONES, Circuit Judges.

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GARWOOD, Circuit Judge:

Plaintiff-appellee C.K. Greenwood (Greenwood) brought this suit against defendants-appellants Indian Ocean Bulk Carriers and Societe Francaise de Transportes Maritime (collectively, the Shipowners), pursuant to section 5(b) of the Longshore & Harbor Workers' Compensation Act (the Act), 33 U.S.C. § 905(b), for injuries Greenwood received while unloading the Shipowners' vessel. The jury found in Greenwood's favor, and the magistrate judge conducting the trial rendered judgment for Greenwood. The Shipowners now timely appeal, alleging, inter alia, that there was insufficient evidence to sustain the jury's verdict. We agree and accordingly reverse the judgment in favor of Greenwood and render judgment for the Shipowners.

Facts and Proceedings Below

On April 1, 1986, in Corpus Christi, Texas, the Shipowners turned over their vessel, M/V PENAVAL, to a stevedore which employed longshoremen to discharge the ship's cargo for that day and for the next three days. During that first day of operations, Greenwood worked as a member of a gang of longshoremen who were assigned to unload a cargo of pipe from a hatch on the deck of the vessel onto third-party trucks located on the dock. The longshoremen commenced their cargo operations around 7:00 a.m., and they used the ship's crane number four (as well as other of its cranes) to assist in discharging the pipe. The longshoremen had attached the stevedore's cargo discharging gear to the crane's hook. This gear consisted of a spreader bar that had cables on each end equipped with cargo hooks. The longshoremen attached the cargo hooks to each end of a joint of pipe. Since there were three cables and hooks on each end of the spreader bar, the longshoremen could transport three joints of pipe at a time. The spreader bar also had tag lines, which consisted of lengths of rope that were used for guiding the joints of pipe to the waiting truck beds. The longshoremen's utilization of the cranes in the unloading operation was carried out without any supervision or intervention by the ship's crew.

During the morning of April 1, the number four crane was operated by longshoremen Kenneth Logue (Logue) and Wayne O'Neal (O'Neal), who worked alternating one-hour shifts. Concerning the time relevant to this case, Logue worked the first shift from 7:00 a.m. to 8:00 a.m., and he worked the shift from 9:00 a.m. to 10:00 a.m.; O'Neal worked the 8:00 a.m. to 9:00 a.m. shift. A few minutes after 9:00 a.m., Logue had just unloaded three points of pipe onto a truck bed and was swinging the crane's boom back over the ship for another load when one of the tag lines got hung up on something, apparently the truck. Logue testified that he attempted to halt the horizontal movement of the crane with the crane's slewing brake in order to ease the tension in the tag line. He further testified that the slewing brake--which controls the crane's horizontal movement--malfunctioned and the crane continued to move in a horizontal direction. The tag line then broke, causing the spreader bar and cargo hooks to swing outward. Greenwood was struck in the face with one of the swinging cargo hooks. No report was made to the ship about the accident, and the crane continued to be used without interruption by the two operators. Then, at approximately 11:30 a.m., the crane's boom brake--which controls the vertical movement of the crane--began to malfunction. The ship's log indicates that this malfunction was due to a break in the boom brake's socket lining that occurred while the crane was in operation, but it was "[c]aught right in time" and the crane was immediately shut down for repairs. The longshoremen crew received full compensation during the half hour of their work schedule that the crane was shut down. After the ship repaired the crane's boom brake, it continued to be used without incident that afternoon and for the remainder of the unloading operations.

Greenwood subsequently brought this suit against the Shipowners for the injuries he suffered as a result of being struck by the swinging cargo hook. At trial, the evidence revealed that all of the cranes' brakes were inspected on March 20, 1986. A report from that inspection showed that one of the slewing brakes on crane number four had been

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replaced with a part that was "not recommended." The operating condition of the crane's other slewing brake was described as being in "slight doubt." 1 The Shipowners did not inform the stevedore that anything might be wrong with the number four crane when they relinquished control of the vessel.

Logue, who was Greenwood's first witness, testified on direct examination that at the time of the accident he had been a longshoreman for thirty-two years and had operated cranes for twenty-five or twenty-six years. He stated that when he first started operating the crane at 7:00 a.m., he immediately realized that as to the horizontal or slewing motion it was "a little jerky" and "when you did start slewing, you put it back in neutral, it would continuously kept slewing for a little ways." 2 He explained, "If it keeps slewing, then you have got to try to adjust for it," and, "If it's not functioning properly then you try to allow yourself for that--for whatever might be wrong with it." He agreed that a crane operator, in his experience, can operate a crane even though it has a defect unless "it is too rough, if it's too bad ... then you're going to get off of that crane. I know I'm going to do it." Logue testified that at 8:00 a.m. he reported the slewing-brake defect to his gang foreman, Quincy V. Guilford (Guilford), but made no other report concerning the crane. There is no evidence to suggest that the Shipowners were ever notified about the problem with the slewing brake's operation. 3 After the accident, Logue continued to use the crane although the slewing brake was not then or thereafter repaired.

At the close of Greenwood's case, the Shipowners made a motion for directed verdict on the basis, among others, that they had no duty to warn of dangers with regard to the slewing brake, because the stevedore and longshoremen tested the ship's crane before using it in unloading and knew of the slewing brake's defect, and there was no evidence the Shipowners had actual knowledge that the crane was malfunctioning to such an extent that the stevedore's decision to continue using it was obviously improvident. The magistrate judge denied the Shipowners' motion for a directed verdict.

The Shipowners then presented their evidence and Greenwood offered his rebuttal evidence. The Shipowners did not renew their motion for directed verdict at the close of all the evidence. They did, however, timely object to the proposed jury charge based on the same grounds of insufficient evidence. This objection was also overruled. 4 Subsequently,

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the jury returned its verdict finding the Shipowners were negligent and $3,234,984 in damages. The magistrate judge ultimately remitted $144,891 of this amount, resulting in a final judgment of $3,090,093. Following the verdict, the Shipowners filed a motion for judgment notwithstanding the verdict (JNOV), 5 raising the same arguments as they had presented in their motion for directed verdict that there was insufficient evidence that they had breached their duties of care to Greenwood. The magistrate judge denied this motion as well. The Shipowners now timely appeal, arguing, inter alia, that the magistrate judge erred in not granting their motions based on the insufficiency of the evidence.


I. Motion for Directed Verdict

Greenwood argues that although the Shipowners made a motion for directed verdict--which was denied--at the close of the plaintiff's case, they failed to reurge the motion at the close of all of the evidence. Therefore, he contends that under Federal Rule of Civil Procedure 50(b), the Shipowners' insufficient-evidence claims cannot be reviewed on appeal.

"It is well-established law that the sufficiency of the evidence is not reviewable on appeal unless a motion for directed verdict was made in the trial court at the conclusion of all the evidence." McCann v. Texas City Refining, Inc., 984 F.2d 667, 671 (5th Cir.1993) (citing Hall v. Crown Zellerbach, 715 F.2d 983, 986 (5th Cir.1983)). "Where this prerequisite has not been satisfied, a party cannot later challenge the sufficiency of the evidence either through a j.n.o.v. motion or on appeal." Bohrer v. Hanes Corp., 715 F.2d 213, 216 (5th Cir.1983), cert. denied, 465 U.S. 1026, 104 S.Ct. 1284, 79 L.Ed.2d 687 (1984). 6

However, this Court has not required strict compliance with Rule 50(b) and has excused technical noncompliance where the purposes of the requirement have been satisfied. See, e.g., Adjusters Replace-A-Car, Inc. v. Agency Rent-A-Car, Inc...

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