Mouton v. Tug Ironworker, 86-3454

• Decision Date: 10 March 1987
• Docket Number: No. 86-3454,86-3454
• Parties: , 22 Fed. R. Evid. Serv. 1017 Gerald R. MOUTON, Jr., Plaintiff-Appellee, v. TUG "IRONWORKER" her equipment, tackle, apparel, etc., et al., Defendants, John F. Beasley Construction Company, et al., Defendants-Appellants. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 946

811 F.2d 946

1988 A.M.C. 605, 22 Fed. R. Evid. Serv. 1017

Gerald R. MOUTON, Jr., Plaintiff-Appellee, v. TUG "IRONWORKER" her equipment, tackle, apparel, etc., et

al., Defendants,

John F. Beasley Construction Company, et al., Defendants-Appellants.

No. 86-3454.

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

March 10, 1987.

Mark J. Spansel, Brian J. Miles, Adams & Reese, New Orleans, La., Manfred W. Leckszas, Ober, Kaler, Grimes & Shriver, Baltimore, Md., for defendants-appellants.

Stephen P. Bruno, Bruno & Bruno, New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before REAVLEY, JOHNSON and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Gerald R. Mouton, Jr., injured his left knee while employed by the John F. Beasley Construction Company (Beasley) as an oiler on a 150-ton derrick barge, owned and operated by Beasley. Beasley used the derrick barge to transport men and materials across the Mississippi River during the construction of a new bridge in New Orleans. Beasley and its insurer, the National Union Fire Insurance Company, appeal a jury verdict of $175,000 in damages awarded to Mouton because of Beasley's negligence. We affirm.

I.

Mouton injured his left knee while disembarking from the Tug M/V IRONWORKER, a vessel used to transport personnel from the derrick barge to the east and west banks of the Mississippi. Mouton was instructed by Beasley's derrick operator to travel ashore on the IRONWORKER to purchase and deliver lunch. The IRONWORKER maneuvered within three to five feet of the pier and Mouton jumped ashore, injuring his knee in the process. At the time of Mouton's injury, the IRONWORKER did not provide a gangway for those employees who were disembarking onto the pier. Mouton argues that Beasley negligently caused the injury to his left knee by forcing him to jump from the vessel to the pier.

Mouton sued Beasley and its insurer, the National Union Fire Insurance Company, under the Jones Act and general maritime law, and the case was tried to a jury. At the close of the evidence, the district court granted Mouton's motion for a directed verdict on the issue of seaman status, holding that Beasley's 150-ton derrick barge was a vessel and that Mouton was a Jones Act seaman. The jury returned a verdict of $175,000 for Mouton which was reduced to $148,750 because Mouton was found to be fifteen percent (15%) comparatively negligent.

Beasley and its insurer now appeal raising four issues: (1) that the district court erred in directing a verdict on seaman status; (2) that the district court erred in failing to grant a new trial because of the impermissible introduction of evidence of subsequent remedial measures; (3) that the district court erred in failing to grant a new trial because of plaintiff's improper statements during closing argument; and (4) that the jury verdict of $175,000 is excessive and is subject to remittitur.

II.

Beasley ¹ first argues that the district court erred by directing a verdict in Mouton's favor on the issue of seaman status. Beasley contends that the derrick barge was not a vessel and that Mouton was therefore not a seaman. We disagree. The undisputed facts were sufficient to permit the district court to conclude as a matter of law that the derrick barge was a vessel. The derrick barge was used to transport men and materials across the Mississippi River five to eight times per day. The derrick barge was capable of movement under its own power and only required tug assistance when the Mississippi River was at high levels. The district court followed clear circuit authority in determining as a matter of law that the derrick barge was a vessel and Mouton was a seaman. Davis v. Hill Engineering, Inc., 549 F.2d 314, 326-28 (5th Cir.1977). See also Producers Drilling Co. v. Gray, 361 F.2d 432, 437 (5th Cir.1966).

III.

Beasley next argues that the district court erred by denying its motion for a new trial based on the improper introduction of evidence of subsequent remedial measures. Fed.R.Evid. 407. Beasley placed a gangway aboard the IRONWORKER after Mouton's accident. The District Court granted Beasley's motion in limine to exclude any evidence of this subsequent remedial measure. Despite this pretrial order, the issue of subsequent remedial measures was raised three times during the trial.

In the first instance, Mouton asked the captain of the IRONWORKER on direct examination: "Are you saying that you never used a board as a gangway on the bow of the IRONWORKER for precisely this reason to transfer men from the bow of the IRONWORKER onto this pier?" The court sustained Beasley's objection to the question. The second instance involved a direct violation of the motion in limine when Mouton asked the captain on redirect: "Isn't it a fact that the day following Mr. Mouton's injury, you employed the use of a gangway from the vessel to the pier?" The court sustained Beasley's objection to the question and instructed the jury to disregard the question. From the trial transcript it appears that Mouton believed that a previous question by Beasley to the captain opened the door to this question about subsequent remedial measures. Finally, when asked whether a gangway was available at the time of Mouton's injury, a deckhand on the IRONWORKER volunteered the fact that a gangway was not used until after Mouton's injury. Beasley failed to ask for a limiting instruction for this unsolicited remark.

The district court did not abuse its discretion in concluding that the introduction of subsequent remedial measures as...