93-1494 La.App. 3 Cir. 10/12/94, Watterson v. Mallard Bay Drilling, Inc.

• Decision Date: 12 October 1994
• Citation: 649 So.2d 431
• Parties: 93-1494 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 431

649 So.2d 431

93-1494 La.App. 3 Cir. 10/12/94

Aubry WATTERSON, et al., Plaintiffs/Appellants, v. MALLARD BAY DRILLING, INC., et al., Defendants/Appellees.

No. 93-1494.

Court of Appeal of Louisiana,Third Circuit.

Oct. 12, 1994.

Writ Denied Jan. 27, 1995.

Fred H. Belcher Jr., Edward B. Kramer, Baton Rouge, for Aubry Watterson et al.

Douglas C. Longman Jr., Lafayette, for Mallard Bay Drilling, Inc., et al.

Before GUIDRY, DOUCET, LABORDE and COOKS, JJ., and BERTRAND, ^* J. Pro Tem.

[93-1494 La.App. 3 Cir. 1] LUCIEN C. BERTRAND, Jr., Judge Pro Tem.

This maritime action was tried without a jury and resulted in a $498,508 award to plaintiff against the shipowner and its insurers, but reduced by 85% contributory negligence of the plaintiff. Watterson appealed and assigned six errors. Mallard answered the appeal and urged three errors.

Plaintiff, Aubry Watterson, an employee of Mallard Bay Drilling, Inc., sued Mallard under the Jones Act and general maritime law, for injuries he allegedly sustained in the course of his employment.

[93-1494 La.App. 3 Cir. 2] The parties stipulated that on October 23, 1990, the day of the accident, Watterson was employed by Mallard as a "floorhand" and a member of the crew assigned to its inland drill barge, Mallard Bay Rig # 27, located in Terrebonne Parish in navigable waters.

Watterson was hired by Mallard, a drilling contractor, in May of 1990 and assigned to Mallard Bay Rig # 27, and inland barge. He had previously worked on this rig for two years when it was owned by another drilling contractor. Watterson was an experienced hand with over seven years in the oil patch. During October 1990, Rig # 27 was on location in Catfish Lake, within the territorial waters of Louisiana. As a floorhand, Watterson worked seven days "on" and seven days "off."

On October 23, 1990, Watterson and his fellow crew members arrived on the rig to begin their seven day hitch. Shortly after beginning their tour at 6:00 a.m., Watterson and fellow crew member, James Jones, were assigned to chip paint on the rig's substructure above the keyway deck which is located on the bottom deck of the rig directly below the rig floor. The rig crews had been chipping paint on the substructure for several months. In order to chip the substructure above the keyway deck, an aluminum, non-skid scaffold board was used. It was positioned between the crane motor deck and the shale shaker deck some 10 to 12 feet above the keyway deck. The crew members could step easily from the crane motor deck to the scaffold. After receiving instructions from the driller, Watterson and his co-employee, Jones, left the rig floor, walked down to the pipe rack and from the pipe rack onto the crane motor deck. Watterson was wearing a safety harness which he attached to an overhead beam after stepping from the crane motor deck onto the scaffold board. Watterson noticed water on the scaffold board and decided to clean it up with rags [93-1494 La.App. 3 Cir. 3] that were located in a room below him on the keyway deck.

Watterson spotted a wooden ladder, below the scaffold, on the keyway deck. Instead of climbing off the scaffold the same way he climbed on. Watterson decided to take a short cut by climbing down from the scaffold board to the ladder. He voluntarily chose to use the ladder although he had been told not to work on top of a ladder. He had not been told to use the ladder (nor had he seen anyone else use it.) Nothing prevented Watterson from getting off the scaffold the same way he had gotten on. The top of the ladder was approximately one foot from and two feet below the scaffold board with the steps of the ladder facing away from the scaffold. Watterson knelt down on the edge of the scaffold facing the crane deck. The ladder was behind him and to his right. He attempted to shimmy off the scaffold groping for the ladder with his right leg.

Watterson testified that the scaffold board shifted, and he fell onto the ladder and then to the keyway deck. He admitted that prior to the accident, the scaffold never slipped or moved and was sturdy.

ACTIONS OF TRIAL COURT

The court found that the scaffold was extended from the crane motor deck to the pipe joints or rack and there was no unseaworthiness or negligence in providing access to the scaffold. He found that the lack of a railing on the scaffold was not a proximate cause of the accident because a railing would have prevented an inadvertent fall from the scaffold, not Watterson's intentional attempt to climb off the scaffold. He found that the presence of the ladder was neither negligence nor did it make the rig unseaworthy because it was not to be used as a means of access to and from the scaffold and that any reasonable person would realize the obvious danger of using it for access. Therefore, there was no obligation on the part of Mallard to [93-1494 La.App. 3 Cir. 4] warn of the danger or to prohibit the use of the ladder for access.

The trial court found, as a matter of fact, that the scaffold did move when Watterson attempted to get down from it onto the ladder and that this was caused by a failure to properly secure the scaffold. The court further found that the purpose of securing the ends of the scaffold is to prevent it from moving while in use, and this failure was a cause in fact and a proximate cause of Watterson falling to the keyway deck.

The trial court assigned 85% of the fault to Watterson and 15% to Mallard.

ISSUES

The issues presented in this appeal are set forth in the respective parties' assignments of error. Plaintiff, Watterson, contends that the trial court erred in the following respects:

1. The trial court erred in not applying 45 U.S.C. § 53 and the Kernan Rule to bar contributory negligence on the part of Watterson.

2. The trial court erred in applying the standard of "ordinary care" and not "slight care" in this Jones Act case.

3. The trial court erred in finding Watterson is 85% contributorily negligent in this case.

4. The trial court erred in not using the "scintilla of evidence" standard of the Jones Act, instead of the "preponderance of the evidence" standard, which is used to measure the conduct of Watterson.

5. The trial court erred in awarding only $250,000 in general damages for two fusion surgeries to a 28 year old seaman.

6. The trial court erred in not awarding "found."

Defendant, Mallard, in its answer to the appeal assigns the following errors:

1. Was the trial court's finding that Mallard was 15% at fault manifestly erroneous?

2. Was the trial court's finding that Watterson sustained damages of $498,508 manifestly erroneous?

[93-1494 La.App. 3 Cir. 5] 3. Did the trial court err in awarding prejudgment interest on items of future damages.

Plaintiff's first four assignments of error and defendant's first assignment of error will be addressed together. They all deal with negligence, standard of care and the allocation of fault.

In a Jones Act case, evidence of the slightest negligence is sufficient to sustain a finding of Jones Act liability, and the plaintiff's burden to show causation is "featherweight." Johnson v. Offshore Express, Inc., 845 F.2d 1347 (5th Cir.1988), cert. denied, 488 U.S. 968, 109 S.Ct. 497, 102 L.Ed.2d 533 (1988); Daugherty v. Cross Marine, Inc., 598 So.2d 595 (La.App. 4th Cir.1992).

Under this standard, the trial court's finding that Mallard was negligent in failing to properly secure the scaffold is supported by the evidence and thus not clearly erroneous. Likewise, the trial court was not in error in finding Watterson negligent in attempting to leave the scaffold by way of the ladder.

Both Watterson and Mallard complain about the percentage of fault assessed them by the trial judge. Mallard contends that the sole cause of the accident was Watterson's voluntary decision to try a short cut. This argument has no merit. The trial court in its oral reasons stated that:

I find that the preponderance of the evidence shows that the scaffolding did move when Mr. Watterson attempted to get down from the scaffolding onto the ladder, and that this was caused by a failure to properly secure the scaffolding. The purpose of securing the ends of the scaffolding is to prevent the scaffolding from moving while the workers are using it. And that failure to secure the ends of the scaffolding was a cause, in fact, and a proximate cause of Mr. Watterson falling to the keyway deck.

Our manifest error standard of review of fact is applicable in this case. Hanks v. Barge Transport Co., Inc., 563 So.2d 1297 (La.App. 3d Cir.), writ denied, 569 So.2d 964 (La.1990). The trial court's finding of negligence on the part of Mallard [93-1494 La.App. 3 Cir. 6] is supported by the evidence and is not clearly wrong.

The respective duties of an employee and a seaman were discussed by the U.S. Fifth Circuit Court of Appeals in Ceja v. Mike Hooks, Inc., 690 F.2d 1191 (5th Cir.1982), wherein the court stated:

In contrast to the broad duty imposed upon a vessel owner [employer] to supply a safe work place, the seaman's duty to protect himself is slight. Bobb v. Modern Products, Inc., 648 F.2d 1051, 1056-57 (5th Cir.1981).

690 F.2d at p. 1193.

Considering the relative burdens of the parties involved and the facts revealed by the record, we find that the trial judge committed clear error in his apportionment of fault at 85% to Watterson and 15% to Mallard. However, for the reasons to follow, there is no need for us to reapportion fault.

Watterson urges that the trial court erred in not applying 45 U.S.C. § 53 to bar a finding on contributory negligence on the part of Watterson. That section of the U.S.Code provides:

In all actions ... brought against any such common carrier by railroad employees under or by virtue of any of the provisions of this chapter to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory...