Berry v. Sladco, Inc.

• Decision Date: 07 June 1974
• Docket Number: No. 73-3023.,73-3023.
• Parties: William H. BERRY, Plaintiff-Appellee-Cross Appellant, v. SLADCO, INC., et al., Defendants-Appellants-Cross Appellees. CONTINENTAL OIL CO., INC., Defendant-Third Party Plaintiff-Appellee, v. DIAMOND M. DRILLING COMPANY, Third Party Defendant, Travelers Insurance Company, Intervenor-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

495 F.2d 523 (1974)

William H. BERRY, Plaintiff-Appellee-Cross Appellant, v. SLADCO, INC., et al., Defendants-Appellants-Cross Appellees.

CONTINENTAL OIL CO., INC., Defendant-Third Party Plaintiff-Appellee, v. DIAMOND M. DRILLING COMPANY, Third Party Defendant, Travelers Insurance Company, Intervenor-Appellee.

No. 73-3023.

United States Court of Appeals, Fifth Circuit.

June 7, 1974.

Wood Brown, III, New Orleans, La., for appellant.

John R. Martzell, New Orleans, La., for Berry.

Frank C. Allen, Jr., New Orleans, La., for Continental Oil & Travelers Ins. Co.

Sam A. Le Blanc, III, New Orleans, La., for Diamond Drilling.

Before GEWIN, GOLDBERG and CLARK, Circuit Judges.

GEWIN, Circuit Judge:

I

William H. Berry commenced this personal injury action against Sladco, Inc. (Sladco) pursuant to the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 et seq. (1970) (Lands Act), for compensatory damages he claims to have sustained as a result of the alleged defective condition of the hydraulic casing tongs owned and furnished by Sladco pursuant to a lease for the purpose of casing a drill hole on an offshore platform in the Gulf of Mexico. Berry was an employee of the Louisiana Casing Crew & Rental Service Corporation (Louisiana Casing Crew) which had contracted with the Continental Oil Company (Continental), the lessor of the platform and drilling site, to case the drilling hole. Additionally, Sladco had contracted with Continental to supply tongs and a tongs operator which were necessary for the casing operation.

Following a trial on the issue of Sladco's negligence and the damages suffered by Berry, a jury returned a verdict against Sladco and awarded Berry $100,000.00 in compensatory damages in addition to an award for the medical expenses he had incurred as a result of his injuries. Thereafter, Sladco filed a motion for judgment notwithstanding the jury's verdict, a motion for remittitur or in the alternative a new trial, and a motion to limit interest on the amount awarded by the jury's verdict from the date of judgment pursuant to 28 U.S.C. § 1961 (1970), instead of the date of judicial demand as provided by Louisiana law, L.R.S. 13:4203. Additionally, Sladco requested that the court retain jurisdiction over any claim which Sladco might wish to assert against Continental. Continental, an original party-defendant, had been non-suited prior to trial. The trial court denied all the motions except it did order that interest would accrue from the date of judgment.

Sladco has appealed and presents the following issues for our review. First, it asserts that the district court erred when it refused to submit for the jury's consideration a proffered instruction which Sladco characterizes as the law applicable to the doctrine of assumption of risk in Louisiana. All parties agree that this issue is governed by Louisiana law since the Outer Continental Shelf Lands Act, supra, looks to the applicable state law on substantive issues unless there is controlling federal law on the particular issue involved. Second, Sladco contends that the district court erred in failing to grant its motion for judgment notwithstanding the verdict since Berry failed to prove that the tongs were defective when they left its control and further that Berry's proof is infirm since he failed to show that Sladco knew or should have known that the tongs were defective. Third, the district court abused its discretion by refusing to retain jurisdiction over Continental. Finally, Sladco asserts that the trial court should have granted its motion for remittitur or in the alternative a new trial since the damages awarded by the jury are excessive. Berry has cross appealed on the interest issue. It is his contention that the district court should have granted interest from the time of judicial demand as permitted under Louisiana law. We affirm.

II

In this case, Louisiana Casing Crew contracted with Continental to provide casing for the well hole on Continental's stationary platform located in the Gulf of Mexico. Berry was employed by Louisiana Casing Crew as a general casing hand and relief man. Berry was completely familiar with the various jobs of the crew.

One of the last steps in the construction of an oil and gas well before it is placed into production is the installation of casing. The casing operation results in the insertion in the well hole of a large diameter pipe which serves as a protective covering of the drill pipe. Once the casing procedure has begun, it is necessary to continue it until completion since there is a grave danger of the casing sticking in the well if the operation ceases for any extended period of time. Therefore an entire casing crew cannot take a "break" for lunch and rest periods. Instead each member of the crew takes a break separately. To provide for individual breaks and to prevent boredom which would result from continued operation in the same position over a long period of time, the members of a casing crew usually rotate from one position to another.

The necessary mechanical devices for the installation of casing pipe include tongs which are large wrenches employed to screw the successive joints of the casing pipes together as they are inserted into the well hole. Because Louisiana Casing Crew did not have large enough tongs to attach the pipes in the instant case, it was necessary for Continental to acquire the tongs from another source. Accordingly, Continental entered into a lease agreement with Sladco whereby Sladco would supply tongs and a tongs operator.

In the early morning hours of July 4, 1969, the casing operation began. Luther Arnold, Sladco's tongs operator, set up the tongs on two fifty-five gallon, five-foot high drums over the well hole. The tongs supplied by Sladco were over eight years old and from the beginning of their use in this operation, it was apparent that they were defective. Rather than securely biting the pipe which is necessary for a successful attachment of one pipe to another, the tongs began to slip. Apparently, the jaws of the tongs were defective which prevented firm attachment and resulted in the slipping action. Several times Arnold was required to replace various parts of the tongs in an attempt to inhibit the slipping.

In late afternoon, Arnold decided to take his lunch break and Berry took his place at the tongs so the casing operation could continue. This was normal practice since the casing operation could not be interrupted for any extended period of time. In the event that the tongs slip, the operator is required to release the spring loaded throttle which allows the jaws of the tongs to return to a neutral position automatically. If the tongs are permitted to slip to the snub line that is placed in such a fashion as to keep the tongs stationary, they will snap back in a violent reaction. While Berry was operating the tongs, they slipped. When he attempted to use the throttle, it jammed and the tongs hit the snub line, snapped back and knocked Berry from the five-foot high barrel or drum on which he was standing resulting in severe injury to his right foot.

III

At trial, Sladco requested the court to give the following instruction for the jury's consideration in its determination of liability:

DEFENDANT'S CHARGE 10

You are charged that a person who voluntarily exposes himself to a known danger assumes the risk, and is guilty of contributory negligence if injured.

This doctrine of assumption of the risk applies where the plaintiff, who knows of a particular peril, voluntarily enters into a particular activity with full knowledge of the danger of his doing so. Under the circumstances, even though the defendant might be negligent, plaintiff\'s recognition of this negligence and his choice to expose himself to any hazard created by this negligence bars his recovery.

The trial court refused Sladco's tendered instruction on assumption of risk and Sladco contends that it erred in this regard. A reading of the record and reference to applicable law convinces us that the trial court was correct.

First, the proffered instruction equates assumption of risk with contributory negligence and as such would have been confusing to the jury. Second, Sladco's primary affirmative defense at trial was an attempt to show that Berry had been guilty of contributory negligence in the operation of the tongs. Sladco relied exclusively on this defense in its answer to Berry's complaint, its opening statement to the jury, its questioning of various witnesses and as grounds for a directed verdict after all the evidence had been submitted for the jury's consideration. By the jury's answers to the special interrogatories presented for its finding of contributory negligence on the part of Berry, the jury found no negligence on his part....