Cagle v. Harrah's Lake Charles, L.L.C.

• Decision Date: 12 December 2007
• Docket Number: No. 2007-653.,2007-653.
• Citation: 974 So.2d 34
• Parties: Dione CAGLE v. HARRAH'S LAKE CHARLES, L.L.C. and/or Players Lake Charles, L.L.C.
• Court: Court of Appeal of Louisiana — District of US

974 So.2d 34

Dione CAGLE v. HARRAH'S LAKE CHARLES, L.L.C. and/or Players Lake Charles, L.L.C.

No. 2007-653.

Court of Appeal of Louisiana, Third Circuit.

December 12, 2007.

Rex D. Townsley, The Townsley Law Firm, Lake Charles, LA, for Plaintiff/Appellee/Cross-Appellant, Dione Cagle.

J. Mac Morgan, Law Office of J. Mac Morgan, Lake Charles, LA, for Plaintiff/Appellee/Cross-Appellant, Dione Cagle.

James B. Doyle, Lake Charles, LA, for Defendants-Appellants, Harrah's Lake Charles and/or Players Lake Charles, L.L.C.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS and BILLY H. EZELL, Judges.

COOKS, Judge.

Plaintiff, Dione Cagle, was employed by Harrah's Lake Charles as a slot machine technician aboard the M/V Players III casino riverboat. On November 5, 2000, Ms. Cagle reported to the Player's Security Office that she slipped and fell on the stairs of the third deck of the riverboat. Ms. Cagle filed suit on April 30, 2002, alleging her status as a seaman under the Jones Act, 46 App.U.S.C. § 688, and asserting claims for negligence and unseaworthiness. The defendants answered the lawsuit, denying that any such accident occurred, and alternatively denying liability. A bench trial was held on June 28-30, 2006.

At trial, Ms. Cagle contended the steps did not have the appropriate non-skid material upon them and were improperly installed, which allowed water to pool up on the steps. She also claimed the lighting on and around the stairs was inadequate, and rendered the riverboat unseaworthy. Testimony at trial indicated the lighting in the stairs area was "dim," although the defendants claimed it was sufficient.

Defendant pointed out that Ms. Cagle did not immediately seek medical treatment, but waited until a few hours after she said she fell. After filling out the accident report, Ms. Cagle drove herself to St. Patrick's Hospital, where she was treated and released. Defendant notes she returned for her next assigned shift and remained in Defendant's employ until she was fired six weeks later for excessive absences.

Defendant stated it conducted an immediate examination of the scene of the incident. Ernest Kickel, who was a security officer, testified he did not find any unreasonably dangerous conditions present at the incident site. He noted the lighting was "dim," but believed it was adequate for him to see the steps. The lighting in the area was reported on Defendant's accident report as "Outside Dim."

After the alleged accident, Ms. Cagle was treated for a number of months by Dr. James Perry with complaints of lower back pain. She was diagnosed with a lumbar strain with mild radicular symptoms and some disc protrusion at the L5/S1 level. Dr. Perry did question whether the objective findings of injury supported the amount of pain complained of by Ms. Cagle. Ms. Cagle received treatment from other physicians over the next few years. Complaining of continued severe pain, an independent medical evaluation was performed by Dr. Clark Gunderson. In his report, Dr. Gunderson found Ms. Cagle to have an "EMG consistent with the disc protrusion with a lumbosacral radiculopathy." Considering that five years had elapsed since the injury and Ms. Cagle still had significant limitation despite years of conservative therapy, Dr. Gunderson was of the belief that Ms. Cagle would require future surgery to alleviate her disc problems.

After a three-day trial, the court rendered judgment in favor of Ms. Cagle, and set forth the following reasons for judgment:

Based on the evidence, it appears evident that, at the time of the accident at issue in this case, the Player's III was a vessel in navigation `for the purposes of the Jones Act. The Court accepts this particularly based on the fact that records show that the Player's III was still making voyages over Lake Charles at the time of the accident in November 2000.

Considering the fact that Player's III was in fact a vessel in navigation, then it is evident that Plaintiff had attained seaman status during her employment with Harrah's and should be able to assert her claim for damages under the Jones Act.

Plaintiff alleges that inadequate lighting on the hurricane deck was a proximate cause of the accident and caused the Player's III to be unseaworthy. Based on the evidence adduced during the trial, particularly the testimony of Mr. Kickel, it is evident that the lighting on the Player's III was not bright enough for the purpose used. Apparently there was only a set of what was referred to as "porch lights" shinning [sic] outside the door that led out to the steps in question. There were no lights near or above the stairs, which according to various accounts, were available for use by patrons and employees for moving between deck levels on the Player's III. Considering that these stairs were frequently used by both employees and patrons of the casino, during nighttime operations, there should have been lighting that was adequate to ensure that users of the stairs were able to use them safely and easily and to be able to see any hazards which could have existed on the stairs. The stairs were not adequately lit and this was a proximate cause of the accident which occurred. In ruling the vessel unseaworthy due to the lighting allegations, the Court sees no need to proceed to evaluate the steps'"non-skid" protection or the failure of the defendants to hold safety meetings. The Court, now establishing liability, moves to discuss causation and damages.

In a Jones Act case, where the vessel is considered unseaworthy, it must be shown that the unseaworthy condition played a substantial part in bringing about or actually causing the injury and that the injury was either a direct result or a reasonably probable consequence of the unseaworthiness. In this case, the Court finds that the lack of lighting on the stairs in question played a substantial part in bring [sic] about the fall of the plaintiff while she was descending the stairs. As a result of this fall, the plaintiff did in fact sustain injuries.

The level of injury sustained and the amount of damages are not abundantly clear from the evidence and testimony presented. While Dr. Raggio and Dr. Perry seem to have some doubt about the severity of the injuries sustained by plaintiff, the I.M.E. performed " by Dr. Gunderson found otherwise. The I.M.E. states that the primary complaints are lower back and right leg pain. The I.M.E. also states that the plaintiff has an EMG consistent with disc protrusion with a lumbosacral radiculopathy. As a result, the Court finds that the plaintiff has suffered damages as a result of her fall while at work and is entitled to an award of damages from the Defendant, Harrah's. The testimony of the IME doctor confirmed injury and was uncontested on medical probability of future surgery. The Court does not find that Plaintiff has reached the point of maximum medical improvement, and thus should be entitled to awards of maintenance and cure from the date of the accident, less any credits for amounts previously paid. Evidence indicates that the Defendant paid most of the accident related medicals, but at no time paid any maintenance to the Plaintiff. Therefore, the Court does find that Defendant has acted in a way, in not paying maintenance and cure which could be described as "callous and recalcitrant or arbitrary and capricious." A finding of this sort is necessary for a statutory award of attorney fee's, which the Court finds is present in this case.

The trial court awarded damages in the following amounts: $150,000 in General Damages; $143,722 in Past Loss of Earnings; 8331,677.87 in Future Loss of Earnings; $80,000 in Future Medicals; $9,287 in Past Medicals; and $30,885 in Past Maintenance. The trial court found, while Defendant did pay most of the medical abills, it paid no maintenance and cure to Ms. Cagle. The trial court then concluded that the Defendant's failure to pay maintenance and cure was arbitrary and capricious and awarded Ms. Cagle $10,043.14 in Attorney Fees. The trial court also ordered Defendant to pay "legal interest on all past losses from the date of the injury (November 5, 2000) until paid in full."

Defendant has appealed the judgment and argues the trial court erred in its finding of unseaworthiness. It also argues the trial court committed manifest error by accepting the testimony of Ms. Cagle in the face of "greatly preponderant objective evidence" to the contrary. Defendant further assigns as error, in the alternative, that the trial court erred in failing to find Ms. Cagle comparatively negligent. Lastly, Defendant contends the trial court awarded excessive damages, should not have awarded attorney fees and erred in awarding prejudgment interest. Ms. Cagle answered Defendant's appeal and argues the amount of damages awarded was inadequate and requests an increase in the award.

ANALYSIS

Appellate courts in Louisiana apply the manifest error standard of review in "Jones Act cases. Milstead v. Diamond M Offshore, Inc., 95-2446 (La.7/2/96), 676 So.2d 89; Richard v. Mike Hooks, Inc., 99-1631, 99-1632, 99-1633 (La.App. 3 Cir. 10/4/00), 772 So.2d 148, reversed on other grounds, 01-145 (La.10/16/01), 799 So.2d 462. A reviewing court must review the record in its entirety to determine whether the trial court's finding was clearly wrong or manifestly erroneous. Butler v. Zapata Haynie Corp., 92-71, p: 7 (La.App. 3 Cir. 2/23/94), 633 So.2d 1274, writ granted in part and denied in part, 94-1171 (La.7/5/94), 639 So.2d 1186, cert. denied, 513 U.S. 1017, 115 S.Ct. 579, 130 L.Ed.2d 494 (1994). To reverse the determinations of the trial court, an appellate court must (1) find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) determine that the record establishes that the finding is clearly wrong or manifestly erroneous. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993).

I. Credibility...