96 0377 La.App. 1 Cir. 11/8/96, Hollenbeck v. Oceaneering Intern., Inc.

• Decision Date: 08 November 1996
• Citation: 685 So.2d 163
• Parties: 96 0377 La.App. 1 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 163

685 So.2d 163

96 0377 La.App. 1 Cir. 11/8/96

Paul E. HOLLENBECK, v. OCEANEERING INTERNATIONAL, INC. and Liverpool & London Steamship Protection and Indemnity Association, Ltd.

No. 96 CA 0377.

Court of Appeal of Louisiana First Circuit.

Nov. 8, 1996.

Rehearing Denied Jan. 23, 1997.

Writ Denied April, 4, 1997.

Charles B. Plattsmier, Baton Rouge, and Anthony M. Fazzio, Lafayette, for plaintiff/appellee, Paul Hollenbeck.

George D. Ernest, III, Preis, Kraft & Roy, Lafayette, for defendants/appellants, Oceaneering International and Liverpool & London Steamship Protection and Indemnity Association, Ltd.

Before WHIPPLE, PITCHER and FITZSIMMONS, JJ.

[96 0377 La.App. 1 Cir. 2] WHIPPLE, Judge.

This is an appeal by defendants, Oceaneering International, Inc. (Oceaneering) and Liverpool & London Steamship Protection and Indemnity Association, Ltd., from trial court judgments in favor of plaintiff, Paul E. Hollenbeck. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

In 1992, plaintiff began working for Oceaneering as a tender, a position which included duties of setting up equipment for the dive crew and generally assisting the dive crew aboard a vessel. On May 28, 1994, plaintiff was injured while working as a tender aboard the Ocean Diver III, a vessel owned and operated by Oceaneering. David Martin, the lead tender on this particular job, instructed plaintiff and another tender, Joseph Pouech, Jr., to transport some odem weights from the cargo deck, or main deck, up to the 0-1 level of the vessel. An "odem weight" is a square lead block weighing approximately fifty pounds, which is tied to a buoy. The buoy is then used to mark the location of an object below the water, such as a pipeline. Martin indicated to plaintiff and Pouech that the vessel was approaching the location of the pipeline which they needed to mark, and the odem weights were needed on the 0-1 level as soon as possible for deployment.

Because there were no mechanical lifting devices aboard, plaintiff and Pouech were required to manually transport the weights up the stairs to the 0-1 level. They first located the weights and carried them to the base of the stairs. After plaintiff and Pouech had positioned the weights at the base of the stairs, Martin returned and again urged them to get the weights to the 0-1 level as quickly as possible.

[96 0377 La.App. 1 Cir. 3] Pouech proceeded up the stairs, and as plaintiff started up the steps with a weight, Pouech reached down to grab the weight from plaintiff. Thereafter, plaintiff and Pouech continued to transport the weights in this fashion. Plaintiff would lift the odem weight by the PVC pipe handle attached to the weight by a chain. He would then walk up a couple of steps and hand the weight to Pouech, who had walked down a couple of steps. Pouech would grab a portion of the handle and the chain to receive the weight from plaintiff. As plaintiff handed a weight to Pouech, he would ask Pouech if he had the weight, and Pouech would respond with words to the effect, "Yeah, I got it." Pouech would then walk up the remaining steps and place the weight on the 0-1 deck.

After successfully transferring some of the weights in this fashion, plaintiff attempted to hand an odem weight to Pouech and asked Pouech if he had the weight. Pouech responded that he had the weight, so plaintiff began to release his grip on the weight. However, Pouech had not in fact gained control of the weight, and as plaintiff attempted to release his grip, the weight began to fall. Plaintiff attempted to re-grip the weight and gain control of it. However, the weight fell across the front of plaintiff's body, and at the same time, plaintiff's foot slipped off the stairs, causing him to fall. Plaintiff felt a twisting and popping in his back, followed by a very sharp pain at his belt line. Plaintiff was subsequently diagnosed with a ruptured disc at L4-5 and a bulging disc at L5-S1.

On September 22, 1994, plaintiff filed suit in state court against Oceaneering under general maritime law and the Jones Act, 46 U.S.C. § 688. ¹ [96 0377 La.App. 1 Cir. 4] Oceaneering's liability was predicated upon the alleged unseaworthiness of the vessel; failure to provide an adequate crew; failure to properly supervise the work performed; failure to properly train the crew; failure to provide proper equipment to perform the assigned tasks; failure of its employees to warn plaintiff of dangerous equipment; and failure of fellow employees to perform their tasks in a safe and reasonably efficient manner.

Following a bench trial, Oceaneering was found liable under general maritime law as the owner of the vessel and under the Jones Act as plaintiff's employer. In reasons for judgment, the trial court concluded that Oceaneering was liable to plaintiff under the Jones Act based on the negligence of co-employee Pouech, which it found to be the "predominant cause" of plaintiff's injuries. The trial court further concluded that the Ocean Diver III was unseaworthy, because the stairs were slippery and did not have a non-skid surface and that this condition of the stairs was also a cause of plaintiff's injuries. The court acknowledged the corresponding duty of a seaman to use reasonable care, but noted that this duty was slight. After considering all of the facts and circumstances, including the supervisor's admonition to hurry, the slippery and unseaworthy condition of the stairs and Pouech's negligence in stating that he had control of the weight when in fact he did not, the trial court assigned plaintiff 15% comparative fault based on plaintiff's decision to transfer the weights in the manner described above.

The court assessed plaintiff's damages as [96 0377 La.App. 1 Cir. 5] follows:

                Past medical expenses                                               $  2,369.15
                Future medical expenses                                               47,000.00
                Past pain and suffering, mental anguish and mental pain and          125,000.00
                  suffering
                Future pain and suffering, mental anguish and future mental pain     125,000.00
                  and suffering
                Permanent physical impairment and loss of enjoyment of life,         100,000.00
                  including loss of ability to work at chosen profession
                Past loss of wages                                                    32,100.00
                Future loss of wages and loss of earning capacity                    489,223.00
                                                                                    -----------
                                                                            TOTAL:  $920,692.15
                

Judgment was rendered on November 9, 1995, awarding plaintiff the above sums, reduced by his 15% comparative fault, together with legal interest. The judgment further ordered the parties to submit calculations on the issue of loss of found to the court within ten days. Subsequently, on November 27, 1995, the trial court rendered a supplemental judgment, awarding plaintiff $43,200.00 for loss of found and assessing expert witness fees to be taxed as costs against defendants.

From these judgments, defendants appeal, assigning the following as error:

(1) The trial court failed to apply the correct cause-in-fact standard in determining Oceaneering's liability (2) The trial court erred in not assessing a greater percentage of fault to plaintiff;

(3) The trial court applied the improper legal standard by placing the burden of proof on Oceaneering to show it was not negligent;

(4) The trial court erred in applying an improper standard in finding the Ocean Diver III unseaworthy;

(5) The trial court's general damage award of $350,000.00 is excessive;

[96 0377 La.App. 1 Cir. 6] (6) The trial court erred in awarding damages for future lost wages when it concluded that plaintiff would continue to earn diver's wages when plaintiff "left the water";

(7) Even if the trial court's findings are correct, the trial court erred in calculating the amount of lost future wages;

(8) The trial court erred in awarding damages for "found" because plaintiff did not plead "found" as an element of damages;

(9) The trial court erred in using impeachment evidence to support an award of "found";

(10) The trial court erred in awarding damages for "found" because there was no evidence introduced at trial to support an award of "found";

(11) The trial court erred in not discounting damages for "found" to present value;

(12) The trial court erred in awarding damages for future medical expenses because there was no evidence to support an award of $47,000.00 for future medicals; and

(13) The trial court erred by not discounting future medical expenses to present value.

JONES ACT NEGLIGENCE

(Assignment of Error No. 1)

In their first assignment of error, defendants aver that the trial court erred in finding that Oceaneering's conduct was the cause-in-fact of plaintiff's accident. Rather, they argue that the trial court should have concluded that but for plaintiff's decision to transfer the odem weight in the manner he employed, the accident would not have occurred. Thus, they aver that plaintiff's conduct was the only cause of his accident. We disagree.

[96 0377 La.App. 1 Cir. 7] Under the Jones Act, a defendant must bear the responsibility for any negligence, however slight, that played a part in producing the plaintiff's injury. In re Cooper/T. Smith, 929 F.2d 1073, 1076-1077 (5th Cir.), cert. denied sub nom., Abshire v. Gnots-Reserve, Inc., 502 U.S. 865, 112 S.Ct. 190, 116 L.Ed.2d 151 (1991). Because an employer is liable for the negligence of his employees under the Jones Act, the Jones Act generally provides a broad basis for liability. In addition, the Jones Act contains a liberal causation requirement. If the defendant's negligence played any part, however small, it results in liability. Brister v. A.W.I., Inc., 946 F.2d 350, 354 (5th Cir.1991). Evidence of the "slightest" negligence is sufficient to sustain a finding of Jones Act liability, and the burden on a...