93-0182 La.App. 4 Cir. 1/19/94, Gaston v. G & D Marine Services, Inc.

• Decision Date: 19 January 1994
• Citation: 631 So.2d 547
• Parties: 93-0182 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 547

631 So.2d 547

93-0182 La.App. 4 Cir. 1/19/94

Nell GASTON, v. G & D MARINE SERVICES, INC., et al.

No. 93-CA-0182.

Court of Appeal of Louisiana Fourth Circuit.

Jan. 19, 1994.

Writ Denied April 4, 1994.

Stephen B. Murray, Charles R. Ward, Jr., Murray Law Firm, New Orleans, for plaintiff-appellee.

James M. Tompkins, J. Michael Grimley, Jr., Galloway, Johnson, Tompkins & Burr, New Orleans, for defendant-appellant.

Before KLEES, ARMSTRONG and JONES, JJ.

[93-0182 La.App. 4 Cir. 1] ARMSTRONG, Judge.

Defendant G & D Marine Services, Inc. (G & D), appeals from a judgment in favor of plaintiff Nell Gaston, who was awarded damages for injuries sustained in an accident while preparing to get off of a crewboat which had transported her across the Mississippi River. We now amend the judgment of the trial court.

Plaintiff was a fifty-six year old female at the time of the incident in question. She worked as a head steward or cook for SHRM Catering which had a contract with Chevron, U.S.A. to provide catering services to a Chevron facility located on the east bank of the Mississippi River across the river from Empire, Louisiana. G & D had the contract to transport SHRM personnel from the Cal-Ky dock in Empire, on the west bank of the Mississippi River, to the Chevron facility. On November 15, 1988 plaintiff had finished her two-week hitch at the Chevron facility and boarded a fifty-foot crewboat owned and operated by G & D, the M/V MISS VIVIAN, to be transported across the river to the Cal-Ky dock. The captain of the M/V MISS VIVIAN was Riley Terrebone. The only other passenger was Kristi Guidry, plaintiff's galley hand.

Upon reaching the Cal-Ky dock Capt. Terrebone backed his vessel to the dock and attempted to hold it there by keeping the engines in reverse, rather than by tying the vessel to the dock. Kristi Guidry exited the vessel first. As plaintiff was bending over to pick up her suitcase, she claimed that movement of the vessel bumping against the dock caused her to "crunch down." Although she felt a sharp pain in her back, plaintiff proceeded to pick [93-0182 La.App. 4 Cir. 2] up her suitcase and exit the vessel. She entered her automobile and dropped Ms. Guidry off enroute to her sister's residence in Gretna, Louisiana. Plaintiff testified that she felt constant pain after the accident. She sought treatment from Dr. Earl J. Rozas the next day. Dr. Rozas hospitalized plaintiff for several weeks and was still treating plaintiff at the time of trial, over three years later.

Dr. Rozas testified by deposition that on examination of plaintiff he found muscle spasm in her lower back and stated that a straight leg raising test on her left leg was positive for pain. He said these findings were consistent with the history reported by the plaintiff, i.e., a sharp pain in her lower back and severe pain in her left leg with numbness. X-rays and CAT scans showed "fairly advanced" degenerative arthritic changes in her lumbar spine and narrowing of two disc spaces, one at the L3-L4 level and one at the L5-S1 level. Dr. Rozas diagnosed plaintiff to be suffering from a herniated disc with sciatica in her left leg and lumbar strain. It was his opinion that the incident on the M/V MISS VIVIAN aggravated plaintiff's pre-existing degenerative arthritic problems and cause them to become symptomatic.

Dr. Rozas stated that at first he did not focus on plaintiff's left knee but on her whole left leg which she complained was in pain and numb. She had no specific complaints regarding the left knee when he first saw her. Dr. Rozas's December 14, 1988 office notes show plaintiff complaining of knee pain. As of January 25, 1989 plaintiff's knee pain had worsened. An arthrogram showed no evidence of a torn cartilage. An MRI ordered on March 1, 1989 showed degeneration between both the medial meniscus and the lateral meniscus. An arthroscopic examination done on June 26, 1989 showed no tear of either meniscus but revealed extensive chondromalacia in the left knee. Arthroscopic surgery was performed to shave off some damaged cartilage. It was Dr. Rozas's opinion that most of this chondromalacia pre-existed the accident. However, based on plaintiff's symptoms, he felt that something in the accident aggravated this pre-existing condition.

Dr. Rozas felt that at the time of the accident plaintiff had fallen and struck her knee or had sustained a rotational type of injury. Plaintiff actually did not report any type of injury to her knee. Dr. Rozas testified that at the time of trial plaintiff still complained of [93-0182 La.App. 4 Cir. 3] pain in her knee and back. He said she had consistently complained of pain in her knee and back. Dr. Rozas felt that the pain would never go away. He believed that because of the pain plaintiff would not be able to work on a sustained basis, although he gave her only a fifteen percent whole body disability rating.

Dr. Terry Habig testified as an expert in the field of orthopedic surgery on behalf of defendant. Dr. Habig admitted that the incident may have aggravated plaintiff's pre-existing degenerative problems in her back and indicated that she could have strained her back to some extent by sagging forward because of the motion of the vessel. However, he did not believe that motion could have caused plaintiff's knee injury. As for plaintiff's ability to return to work, Dr. Habig felt that because of plaintiff's symptoms it would be hard for her to do things requiring much standing or walking. He thought she would be limited to sedentary work. He did believe, however, that plaintiff complained of pain more than one might anticipate considering her x-rays.

Plaintiff testified that as she reached down to pick up her suitcase, which she estimated to weigh approximately 12-17 pounds, she went down, i.e., "crunched down," further than she would have due to movement of the vessel. Plaintiff stated that she never had the types of back and knee problems that she has had subsequent to the incident in question. She testified that her work as a steward cooking for approximately thirty-five people a day required her to frequently bend over, and to lift large pots and groceries. Counsel for defendant noted that in an earlier deposition plaintiff stated that as she was bending down to get her suitcase she was pushed down by the motion of the vessel and that she felt the sharp pain as she picked up her suitcase. She also stated that she did not twist to the right or left. Defendant emphasizes that plaintiff stated that she felt the sharp pain as she picked up the suitcase, not as she was "crunched down" or "pushed" down by the movement of the vessel.

Plaintiff admitted that the docking method used by Capt. Terrebone on the day of the accident, holding the stern of the vessel against the dock by the force of the engines in reverse, was really no different than the way he always dropped them off. She further admitted that she had never had any problems disembarking when the vessel was held [93-0182 La.App. 4 Cir. 4] against the dock. Plaintiff did not complain to Capt. Terrebone on the day of the accident and admitted that she turned around and waived to the captain after she got off of the vessel. She also admitted that when she first went to Dr. Rozas for treatment she did not relate the injury to anything happening with the vessel, only that she hurt her back as she bent down to get her suitcase.

Kristi Guidry, plaintiff's galley hand who rode across the river with her on the day of the accident, stated in her deposition that plaintiff did not mention any problems to her. They got off the vessel and plaintiff drove her to a location, got out of her vehicle, and opened the trunk so Guidry could get her suitcase. Guidry said she did not notice plaintiff having any difficulty moving around. Guidry said she was "shocked" when she learned the next week about plaintiff's injury. She confirmed that Capt. Terrebone usually let them off the vessel while holding the stern against the dock by the force of the engines.

Jeannette Beard was employed by SHRM Catering, Inc. Beard worked with plaintiff for approximately one year and roomed with her while on the job. She testified that she had heard plaintiff complain of pain "on many occasions" prior to November 1988. She said plaintiff had gained weight after she came to work at SHRM and that plaintiff quit an exercise program because it bothered her back and the back of her legs. Beard claimed that plaintiff told her that she had to take "something for pain" and that her physician said she had to lose weight because it was causing her back problem. Plaintiff denied having prior back and leg problems. She denied telling Jeannette Beard any of the things Beard said she told her.

Capt. Claude Davenport testified on behalf of plaintiff as an expert in the field of marine safety. Capt. Davenport stated that Capt. Terrebone should have pulled the M/V MISS VIVIAN alongside the dock and tied the vessel up with lines, then, when the vessel settled down, told the passengers they could get off. There were tires affixed to the stern of the M/V MISS VIVIAN. Davenport stated that the tires would cause the vessel to bounce back and forth as Capt. Terrebone tried to keep the stern backed up against the dock. Capt. Davenport explained that when trying to keep the stern of the vessel against the dock, the current of the river tends to move the bow or front end of the vessel, requiring [93-0182 La.App. 4 Cir. 5] adjustments of the engines. He also said the force of the engines can make the pilings of the dock move. He said Capt. Terrebone's technique causes the vessel to constantly bump against the dock. Capt. Davenport also noted that it was Chevron company policy to secure the vessel to the dock. Capt. Davenport testified that secured means tied up.

On cross-examination Capt. Davenport admitted that even if a vessel is tied up you will get some vertical motion when, for...