Muhammad v. Diamond Offshore Company, 02-0172.

• Decision Date: 10 July 2002
• Docket Number: No. 02-0172.,02-0172.
• Citation: 822 So.2d 869
• Parties: Sadat MUHAMMAD v. DIAMOND OFFSHORE COMPANY.
• Court: Court of Appeal of Louisiana — District of US

822 So.2d 869

Sadat MUHAMMAD v. DIAMOND OFFSHORE COMPANY.

No. 02-0172.

Court of Appeal of Louisiana, Third Circuit.

July 10, 2002.

Rehearing Denied August 21, 2002.

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Lawrence D. Wiedemann, Wiedemann & Wiedemann, New Orleans, LA, for Plaintiff/Appellant Sadat Muhammad.

Cameron B. Simmons, Jeanerette, LA, for Defendant/Appellee Diamond Offshore Company.

Christopher Bremer Siegrist, Houma, LA, for Defendant/Appellee Diamond Offshore Company.

Linda Jane Nelson, Lambert & Nelson, New Orleans, LA, for Defendant/Appellee Lambert & Nelson.

Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.

GREMILLION, Judge.

The plaintiff, Sadat Muhammad, appeals the trial court's judgment finding that he failed to prove negligence on the part of the defendant, Diamond Offshore Company, and the denial of his claim of unseaworthiness. Diamond answered the appeal seeking reversal of portions of the trial court's judgment. We affirm in part and reverse in part.

FACTS

On March 8, 1997, Muhammad sustained injuries as a result of a fall while traversing the stairs leading from the port pipe rack deck to the air conditioner deck on the Rig OCEAN LEXINGTON. Muhammad, a roustabout for Diamond, was carrying a five-gallon bucket of industrial soap in one hand and a long-handled brush in the other as he approached the stairs. He fell down the stairs as he was attempting to step over a four and one-half inch coaming located at the top of the stairs. Shortly thereafter, Muhammad filed suit against Diamond seeking damages pursuant to the Jones Act, 46 U.S.C.App. § 688, and the general maritime law claim of unseaworthiness. A petition of intervention was filed by Muhammad's former attorneys, Lambert & Nelson, P.L.C., seeking attorney's fees as a result of a contingency fee contract entered into between them aid Muhammad. This matter was severed from the trial of the main demand.

Following a bench trial on the merits, the trial court held that Muhammad was solely at fault in causing the accident and that Diamond did not breach any duty owed to him. It further held that he failed to prove that an unseaworthy condition of the OCEAN LEXINGTON was a proximate cause of his accident and subsequent injuries. The trial court also held that Diamond improperly withheld maintenance and cure payments from Muhammad and that he had not vet reached maximum medical recovery due to the fact that further surgery was scheduled on his lumbar spine. It awarded Muhammad maintenance of 815 per day from November 8, 1997 until he reached maximum medical recovery, past medical expenses of $59,599.53, and future medical expenses of $46,309. Based on a joint motion of the parties, Muhammad's daily rate of maintenance was amended from $15 to $20 per day.

A judgment was rendered on May 14, 2001, which awarded Muhammad the above stated damages, and also awarded him pre-judgment judicial interest on his past and future medical expense awards from March 8, 1997, and judicial interest on his maintenance award from November 8, 1997, until he reached maximum medical recovery. This appeal by Muhammad followed. Subsequent to his motion for appeal, an order was issued staying execution of the May 14, 2001 judgment pending this appeal. A hearing on the award of attorney's fees was held, after which the trial court awarded Muhammad attorney's fees in the amount of $15,000.

ISSUES

Muhammad raises six assignments of error on appeal. He argues that the trial court erred in excluding evidence of Diamond's violation of applicable Occupational Safety and Health Act (OSHA) regulations and in relying on Vendetto v. Sonat Offshore Drilling Co., 97-3103 (La.1/20/99), 725 So.2d 474, and Gantreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir.1997), in finding Diamond free from fault. He further argues that the trial court erred in failing to find the OCEAN LEXINGTON unseaworthy, in failing to apply the doctrine of momentary forgetfulness, and in failing to award him general and economic damages as a result of his cervical discectomy and his lumbar fusion.

Diamond answered Muhammad's appeal, arguing that it was aggrieved by the trial court's award of future medical expenses and pre-judgment interest on those expenses, and by the trial court's award of attorney's fees to him based on a finding that it wrongfully terminated his maintenance and cure benefits.

MOTION TO REMAND

Initially, we note that Muhammad has filed a Motion to Remand asking that we remand this matter to the trial court for further proceedings in light of Chao v. Mallard Bay Drilling Inc., 534 U.S. 235, 122 S.Ct. 738, 151 L.Ed.2d 659 (2002). Chao dealt with the applicability of OSHA regulations to a vessel which had not been inspected by the Coast Guard and in which it had not issued affirmative regulations covering the working conditions at issue. However, we need not remand this matter, since the trial court never reached the issue of whether the coaming at issue was defective. Rather, the trial court held that Muhammad failed to carry his burden of proving that the coaming was the proximate cause of his accident. Since the issue of whether the coaming was defective was never reached, a remand of this matter is not called for. Additionally, the report of Diamond's expert in naval architecture and marine surveying, Sheldon Cass, states that the OCEAN LEXINGTON requires yearly inspections in order to maintain a current U.S. Coast Guard certificate. Thus, this is a vessel which has been inspected by the Coast Guard, Accordingly, the motion to remand is denied.

JONES ACT

Jones Act negligence was discussed by the supreme court in Foster v. Destin Trading Corp., 96-0803, pp. 3-4 (La.5/30/97), 700 So.2d 199, 208 (on rehearing):

The Jones Act allows an injured seaman to bring a negligence suit against his employer. 46 U.S.C.App. § 688 (1994). The employer's potential liability extends to all personal injuries arising during the course of the seaman's employment, but proof of negligence is essential to recovery. See id. Such negligence may arise in many ways including the failure to use reasonable care to provide a seaman with a safe place to work, the existence of a dangerous condition on or about the vessel, or any other breach of the duty of care. See Davis v. Hill Engineering, Inc., 549 F.2d 314, 329 (5th Cir.1977); 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 6-21, at 312 (2d ed.1994). The duty of care owed by an employer under the Jones Act is that of ordinary prudence, namely the duty to take reasonable care under the circumstances. Gantreanx Scurlock Marine, Inc., 107 F.3d 331. 335-36 (5th Cir.1997). The seaman bears the evidentiary burden of proving that a breach of the duty owed by the employer was a cause of his injuries. However a seaman need only present "slight evidence" that his employer's negligence caused his injuries in order to reach the jury or to be sustained upon appellate review. Id. at 334-35. The employer can introduce evidence of the seaman's own negligence to reduce damages through application of pure comparative fault principles. Like his employer, the seaman must meet the standard of ordinary prudence by acting as a reasonable seaman would act under the same circumstances. Id. at 339.

The manifest error—clearly wrong standard of review applies in Jones Act and general maritime cases. Ates v. Mallard Ban Drilling Inc., 01-836 (La.App. 3 Cir. 12/12/01), 801 So.2d 653, writ denied, 02-0100 (La.3/15/02), 811 So.2d 915.

After reviewing the record in its entirety, we find that the trial court was presented with differing views of the evidence pertaining to the cause of Muhammad's fall. Thus, it was reasonable for the trial court to find that Muhammad tailed to act as a reasonable seaman would under like circumstances and that he was the sole cause of the accident.

Mohammad testified that he was carrying a five gallon-plastic bucket of industrial soap in one hand and a four-foot-long brush in the other hand when he attempted to descend the stairway. He was unsure which hand held which item. He stated that he intended to step over the roaming and then grasp the stair railing with the hand holding the brush. Before he could do so, Muhammad testified that he fell as he brought his trailing foot over the roaming. However, in his deposition, he was unsure of the specific cause of his fall, stating that the brush he was carrying became caught in the roaming. After his fall, the bristle part of the brush was found caught in the roaming at the top of the stairs, while the handle was found at the bottom of the stairs with him. Muhammad testified that he had been up and down these stairs before and that he was aware of Diamond's policy requiring him to always hold onto a railing with one hand while ascending or descending stairways. However, he denied being told that he could not traverse the stairs while carrying something in both hands.

Diamond presented evidence pertaining to its policy requiring employees to hold onto railings with one hand any time they were using stairways on the OCEAN LEXINGTON. Its safety manual specifically states, "Traveling up and down ladders or stairways require the employee to use the handrails." Diamond employees, Oliver Gandy and Timothy Taylor, both testified that its policy requires an employee to maintain one hand on the handrail at all times while traversing stairways on the rig. They further stated that Diamonds policy required an employee carrying a brush and bucket to place the brush in the bucket before using a stairway. Jerry McHenry Diamond's safety representative on the rig at the time of the accident, verified its policy required employees to keep one hand on a handrail at all times.

Gandy testified that Muhammad admitted not having a hand on the handrail at the time of his fall and that he had attended a safety meeting minutes earlier, at which this policy was discussed. Gandy further...