97-682 La.App. 3 Cir. 2/18/98, Parks v. Pine Bluff Sand & Gravel Co.

• Decision Date: 18 February 1998
• Citation: 712 So.2d 905
• Parties: 97-682 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 905

712 So.2d 905

97-682 La.App. 3 Cir. 2/18/98

Richard J. PARKS, Jr., et al., Plaintiff--Appellee, v. PINE BLUFF SAND & GRAVEL CO., Defendant--Appellant.

No. 97-682.

Court of Appeal of Louisiana, Third Circuit.

Feb. 18, 1998.

Jerold Edward Knoll, Marksville, Richard Joseph Arsenault, Alexandria, for Richard Joseph Parks, Jr., et al.

Rufus Carrollton Harris, III, J. Fredrick Kessenich, Alfred J. Rufty, Jr., Spiro J. Verras, New Orleans, for Pine Bluff Sand & Gravel Co.

Before COOKS, WOODARD and PICKETT, JJ.

[97-682 La.App. 3 Cir. 1] WOODARD, Judge.

Richard J. Parks, Jr. (Parks) injured his back when he fell into the Red River from a floating pontoon pipeline while attempting to secure this floating structure to a wall in a lock on the river. At the time of his injury, he was employed by Pine Bluff Sand & Gravel Company (Pine Bluff). Parks brought this action under 46 U.S.C.App. Sec. 688, commonly referred to as the Jones Act, and general maritime law, pursuant to the "savings to suitors" clause against Pine Bluff. From a decision by the trial court in favor of Parks, Pine Bluff appealed. We affirm in part, reverse in part, and remand to the trial court for additional findings.

FACTS

On September 16, 1993, Parks was a Jones Act seaman, performing duties in the course and scope of his employment with Pine Bluff. At the time of his accident, he was twenty-two years old, married with one child. He had dropped out of school after completing the eighth grade and had been gainfully employed since the age of sixteen.

[97-682 La.App. 3 Cir. 2] On the day of the accident, one of Pine Bluff's dredges, the M/V Dredge Butcher, and its crew, including Parks, was performing dredging operations on the Red River. These operations consisted of removing sand and silt from the river bottom and discharging it at a desired location through a floating pontoon pipeline connected directly to the dredge. The floating pipeline pontoons were constructed with a catwalk and handrails which ran along the top of each section of the floating pipeline. The dredging operations required passage through the John H. Overton Lock and Dam on the river.

In order to traverse the lock, the Captain, Clay Shill, directed Parks and other deck hands to dismantle the dredge's pipeline pontoon, and travel aboard the pipeline pontoon into the lock and secure it to the lock wall. This was not unusual for Parks. He had traveled aboard the pontoon pipeline on many occasions. It was commonplace to move the pontoon pipeline from one location to another this way.

The catwalk on the pipeline was equipped with cable handrails running along the top of each section of pipe. The handrails were provided to prevent crew members from falling into the water. As Parks attempted to throw a line around the bitt in the lock wall, he leaned against the cable handrail. The pipe stanchion supporting the handrail cable broke at the weld where the pipe stanchion joined the floating pontoon. Parks fell overboard, hitting the pipeline with his right side as he fell into the Red River. Ron Smith, one of Pine Bluff's boat operators, witnessed the accident from the wheelhouse of the M/V Captain Joe. He testified that Parks did absolutely nothing wrong to cause this accident. Moments after Parks fell overboard, he was immediately pulled from the water by his fellow deckhands.

The Captain, Clay Shill, told Parks to go to the engine room of the M/V Captain Joe to dry his clothes. Later, Parks returned to his duties and worked the remainder of the day. When he returned home that night he told his wife about the accident and complained of being stiff and sore. The following morning, he was not feeling any better. When he realized that his injury was not improving, he telephoned Pine Bluff's time keeper, Roger Cole, who told him that he needed to complete an accident report, which Parks did a couple of days later.

Immediately after the accident, Dr. Brian McCann of Marksville, Louisiana, Parks' family physician, saw him. He diagnosed his condition as a muscle and ligament strain of the neck, shoulder, and back. When Parks complained of continued [97-682 La.App. 3 Cir. 3] pain, Dr. McCann referred him to Dr. Robert Rivet, a neurosurgeon in Lafayette, Louisiana. Dr. Rivet concluded that Parks had sustained only soft issue injuries to his cervical and lumbar spine; however, a radiology report showed a diffused broad based annular disc bulge. Dr. Rivet also specifically noted that Parks exhibited bilateral muscle spasms. Based upon these objective conditions, he felt that Parks needed to be hospitalized for a myelogram and CT scan. He also referred him to Dr. Jerry Smith, a psychiatrist in Alexandria, Louisiana. Dr. James Domingue, a radiologist, reviewed Parks' CT scan and concurred with Dr. Rivet's opinion that the myelogram and CT scan were normal. Dr. William Brown of Alexandria, Louisiana, Pine Bluff's company physician, saw Parks and concluded that he had sustained no injury. Dr. Brown released him, without restrictions, from his care on November 1, 1993. In February 1994, after Dr. McCann was pressured by Dr. Brown, he, likewise, released Parks but testified that he could not return to work or to any type of unrestricted employment.

In April 1994, Dr. Bruce Razza, an orthopaedic surgeon in New Orleans, Louisiana, saw Parks and diagnosed his condition as a spine segmental instability, which is a functional problem with the disc not providing a good supporting connection between the two bones. Dr. Razza opined that this was likely associated with an impaired disc function at L4/5 and that the disc was not acting like a good shock absorber and was allowing too much motion of the segment around the nerve. An MRI showed disc bulges at L4/5/S1, and there was clear clinical evidence of nerve root irritation. Dr. Razza testified that the accident caused Parks' back condition. After treating him for more than a year, Dr. Razza placed permanent restrictions on his work activities.

Pine Bluff's doctors, Dr. Richard Robichaux, an orthopaedic surgeon, and a psychiatrist, Dr. Rennie Culver, later examined him. After a five-minute examination, Dr. Robichaux found no objective evidence that he had an orthopaedic problem, and Dr. Culver testified that, in his opinion, Parks did not wish to get well.

Parks filed suit against Pine Bluff under the Jones Act and general maritime law on April 18, 1994. His wife and minor child also filed a claim for loss of consortium, which was dismissed pursuant to a motion for summary judgment and is not an issue in this appeal.

[97-682 La.App. 3 Cir. 4] On September 5, 1995, this case was tried without a jury. On September 17, 1996, the trial judge issued his Reasons for Judgment. He awarded general damages of $200,000.00; past lost wages of $45,189.00; lost future wages of $486,442.00; lost fringe benefits of $69,617.00; expert fees and costs of $6,413.78, plus prejudgment interest from the date of the accident, September 16, 1993, on all sums awarded as past damages, and postjudgment interest on all sums awarded, including the award of prejudgment interest until paid by Pine Bluff.

Pine Bluff suspensively appealed the trial court's decision to this court.

ASSIGNMENTS OF ERROR

Pine Bluff claims that the trial court erred in:

1. Finding defendant liable since there was no evidence of negligence on the part of defendant giving rise to a cause of action under the Jones Act and the structure which caused plaintiff's injury was not a vessel in navigation giving rise to a cause of action for unseaworthiness under the general maritime law.

2. Finding that plaintiff was totally and permanently disabled which was unsupported by the weight of the evidence.

3. Issuing an excessive general damage award of $200,000.00 for an unoperated soft tissue injury.

4. Awarding future wage losses and lost fringe benefits based on the opinions of plaintiff's economist, who did not apply the proper legal standard (i.e., Culver II ) and whose opinion was not supported by the evidence.

5. Awarding pre-judgment interest without distinguishing between damages awarded under the Jones Act and damages arising from the unseaworthiness of a vessel.

6. The trial court's unexplained delay between trial and issuing a judgment unfairly penalized and prejudiced the defendant.

7. Awarding plaintiff post-judgment interest on pre-judgment interest.

[97-682 La.App. 3 Cir. 5] LAW

JONES ACT NEGLIGENCE AND THE PONTOON PIPELINE'S STATUS

The trial court did not elaborate extensively on its reasons for finding Pine Bluff liable. In its Reasons for Judgment, the court stated:

This matter came before the Court for trial to determine liability under the General Maritime Law and the Jones Act. It is stipulated that the plaintiff was an employee of the defendant and enjoys Seaman status under the law. On September 16, 1993, the plaintiff was working for the defendant as a mate on the dredge "Butcher" when a railing or hand rail post broke and plaintiff was injured. At the time of the injury the plaintiff was leaning against the rail and attempting to throw a line to secure the vehicle to the side of the lock. The plaintiff fell striking the side of the vessel on his way down. Liability is clear in this case and there is no finding of negligence on the part of the plaintiff. The real issue is the extent of the plaintiff's injuries and the amount he is to be awarded.

Pine Bluff urges this court that it should not give the trial court's factual finding of liability the usual deference under the manifest error or clearly wrong standard as the trial court did not explain the factual or legal basis for its finding of liability of Pine Bluff. See Bloxom v. Bloxom, 512 So.2d 839 (La.1987). First, it is clear that in reviewing Jones Act claims brought in the state courts of Louisiana that the Louisiana standard of appellate review, rather than federal law, is the rule of decision. See Milstead v....