812 F.2d 1509 (5th Cir. 1987), 86-3005, Gates v. Shell Oil

Docket Nº:86-3005.
Citation:812 F.2d 1509
Party Name:Robert M. GATES, Plaintiff-Appellant, v. SHELL OIL (Shell Offshore, Inc.), Defendant-Appellee, v. TOTAL SERVICES, INC., and Northwest Insurance Co., Intervenors-Appellants.
Case Date:March 30, 1987
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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812 F.2d 1509 (5th Cir. 1987)

Robert M. GATES, Plaintiff-Appellant,


SHELL OIL (Shell Offshore, Inc.), Defendant-Appellee,


TOTAL SERVICES, INC., and Northwest Insurance Co.,


No. 86-3005.

United States Court of Appeals, Fifth Circuit

March 30, 1987

As Amended May 8, 1987.

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William Rutledge, Bob F. Wright, Domengeaux & Wright, Lafayette, La., for Gates.

Jeffrey P. Lozes, New Orleans, La., for Total Services and Northwest Ins. Co.

Arthur A. Crais, New Orleans, La., Robert C. Leininger, Jon D. Picou, Bailey & Leininger, Metairie, La., for Shell Oil.

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

Before CLARK, Chief Judge, REAVLEY and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Robert Gates won a jury verdict against Shell Oil Co. for personal injuries, but the district court granted judgment notwithstanding the verdict ("JNOV") or, in the alternative, a new trial. Gates filed a timely appeal, and we reverse the granting of a JNOV but affirm the granting of a new trial. Both Gates and Shell complain also that the district court made improper evidentiary rulings and gave an improper jury charge. Because we remand for a new trial, we address those rulings that are likely to arise again at the new trial.

I. Facts

Shell Oil Co. drills for oil and gas on the Outer Continental Shelf off the Louisiana coast. In 1982, Shell hired Total Services, Inc. to install piping on a new drilling platform

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that was under construction. Gates worked as a pipefitter for Total, and Fred Lovern was Total's supervisor for the work on the Shell platform. Shell hired an independent contractor, James DuBois, to inspect Total's work as it progressed.

On May 10, 1982, Gates injured his back when he and Louis Erwin, a Shell employee, tried to lift and move a valve assembly. After the injury, Total's insurer, Northwest Insurance Co., paid Gates $94,438.36 as compensation and medical benefits under the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. Sec. 901 et seq.

On November 8, 1982, Gates sued Shell under the Outer Continental Shelf Lands Act ("OCSLA"), 43 U.S.C. Sec. 1331 et seq., 1 claiming that Erwin caused his injuries by negligently ordering him to pick up the valve assembly. Gates did not name Total or Northwest as a defendant, but Northwest intervened for reimbursement of LHWCA benefits out of any recovery Gates won against Shell. Shell denied that it was liable and claimed that Total, if anyone, caused Gates' injury.

At trial, both sides called several witnesses to testify about how Gates hurt his back and the seriousness of the injuries. Fred Lovern testified by deposition that minutes before the injury he went to get a crane to move the valve and warned Gates not to move the valve by himself. Gates testified that the valve lay underneath a ledge, out of reach of the crane, and that the valve had to be moved a few feet by hand so that the crane could reach it. Total employees had shipped the valve to the platform and placed it under the ledge. Gates' own account of the accident is as follows:

This man came up to me, a Shell man, and asked me if I needed any help with this valve, and I told him no, that I was waiting. [H]e just turned around and started walking away, and he come back for me and then he told me, "Come on, me and you can lift this valve." ... I grabbed a hold of it and he grabbed it [and as we lifted, I hurt my back].

Several witnesses--including Gates--testified that Lovern was Gates' boss. DuBois and Richard Johnston, Total's president, testified that Erwin had no authority to control Total's employees and that Lovern supervised Total's workers and made sure they worked in a "safe manner." Shell hired Erwin only to watch for fires and fire hazards during construction and to familiarize himself with the platform. Gates himself had never seen Erwin do any work or give any orders; nevertheless, Gates claimed he saw Erwin's comment as an order to pick up the valve assembly and that he had to obey.

Erwin's version of the accident differed from Gates'. Erwin testified that he saw Gates standing over the valve, that he approached Gates without saying a word, and that each of them picked up one end of the valve at the same time.

Both Erwin and Gates estimated that the valve assembly weighed about 200 pounds. Carl Brown, who works for the valve manufacturer, testified that the valve itself, without the assembly, weighed 123 pounds. Michael Salmon, another Total employee, testified that he had lifted similar valves in the past with the help of one other person without injury. Gates also had "handled" similar valves in the past.

The jury found that both Gates and Shell were negligent, that Gates' negligence had contributed thirty percent to his injuries, and that Gates suffered $315,000 in damages. The district court entered judgment on the verdict for $220,500 to Gates (70 percent of $315,000) and also for Northwest against Gates for the benefits it had paid under the LHWCA.

Shell moved for a JNOV or a new trial, and the district court granted the motions without opinion. On appeal to this Court, we ordered the court to make written findings as the bases for its reasons for granting the new trial motion. The district court

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did so in an order dated September 17, 1986. 2

II. JNOV and New Trial

A JNOV is justified if, viewing the evidence in the light most favorable to the non-movant, no reasonable jury could have found in favor of the non-movant. Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969). On the appeal of a JNOV, we review the evidence anew, and we apply the standard announced in Boeing. Worthington Corp. v. Consolidated Aluminium Corp., 544 F.2d 227, 232 (5th Cir.1976). The district court's alternative granting of a new trial requires a less stringent standard. The granting of a new trial is appropriate if the verdict was against the weight of the evidence. Rule 59, Fed.R.Civ.P. We will reverse the granting of a new trial only if the district court abused its discretion. Smith v. Transworld Drilling Co., 773 F.2d 610, 613 (5th Cir.1985).

Upon our review of all the evidence, we find that a reasonable jury...

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