Colburn v. Bunge Towing, Inc.

• Decision Date: 15 September 1989
• Docket Number: No. 88-4464,88-4464
• Citation: 883 F.2d 372
• Parties: Johnny C. COLBURN, Plaintiff-Appellee, Cross-Appellant, v. BUNGE TOWING, INC., and M/V TERRY K, Defendants-Appellants, Cross-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 372

883 F.2d 372

1990 A.M.C. 879

Johnny C. COLBURN, Plaintiff-Appellee, Cross-Appellant, v. BUNGE TOWING, INC., and M/V TERRY K, Defendants-Appellants,

Cross-Appellees.

No. 88-4464.

United States Court of Appeals, Fifth Circuit.

Sept. 15, 1989.

E. Spivey Gault, C.W. Walker, III, Lake, Tindall, Hunger & Thackston, Greenville, Miss., for plaintiffs-appellants, cross-appellees.

David E. Crawley, Jr., Crawley & Ford, Kosciusko, Miss., Philip Mansour, Mansour & Mansour, Greenville, Miss., for defendant-appellee, cross-appellant.

Appeal from the United States District Court For the Northern District of Mississippi.

Before GOLDBERG, JOHNSON, and DUHE, Circuit Judges.

DUHE, Circuit Judge:

I. FACTS AND PROCEDURAL HISTORY

Plaintiff-appellee Johnny C. Colburn ("Colburn") was employed as a mate aboard the towboat M/V Terry K., owned by defendant-appellant Bunge Towing ("Bunge"). In November 1985 he injured his back when he slipped and fell on the deck of a barge being added to the TERRY K's tow. The injury occurred while he was attempting to cut a metal retaining band from a spool of steel cable by striking it with a maul. ¹

Bunge fired the first salvo in this litigation by filing a declaratory judgment action seeking a determination of its maintenance and cure obligations to Colburn. Colburn thereafter brought a claim against Bunge for unseaworthiness and Jones Act negligence. ² At trial, the Jones Act negligence and unseaworthiness claims went to the jury on two theories of liability: 1) an accumulation of grain dust and dew caused the barge to have an unreasonably slippery deck, and 2) it was unsafe to use the maul to cut the retaining bands.

The jury awarded Colburn $450,000 on the alternate theories of Jones Act negligence and unseaworthiness and found that he was entitled to continued maintenance and cure. The trial court entered judgment for $450,000 plus prejudgment interest; $20 per day maintenance from March 31, 1987, until ninety days after Colburn submits to back surgery; unpaid medical expenses of $9,348.86; and future medical expenses. Bunge appeals. Colburn cross-appeals the trial court's refusal to consider his claim for punitive damages due to Bunge's alleged arbitrary and capricious termination of maintenance and cure benefits.

II. LIABILITY

Bunge contends that the trial court erred in denying its motions for directed verdict and judgment notwithstanding the verdict on Jones Act liability.

"In Jones Act cases, a directed verdict or j.n.o.v. is proper only when there is a complete absence of probative facts supporting the nonmover's position." Theriot v. J. Ray McDermott & Co., 742 F.2d 877, 881 (5th Cir.1984) (citations omitted). "Moreover, the standard of review that this Court must employ to test the sufficiency of the evidence in a Jones Act claim is whether there is a reasonable evidentiary basis for the jury's verdict." Id.

Bunge first argues that even if there was evidence that the condition of the barge deck was unsafe, there was no proof that Bunge had knowledge of the unsafe condition. While a Jones Act employer's duty to provide a safe place for the seaman to work is a broad one, Bobb v. Modern Products, Inc., 648 F.2d 1051, 1057 (5th Cir.1981), the employer must have notice and the opportunity to correct an unsafe condition before liability attaches. Perry v. Morgan Guaranty Trust Co. of New York, 528 F.2d 1378, 1380 (5th Cir.1976). The standard of care is not "what the employer subjectively knew, but rather what it objectively knew or should have known." Turner v. Inland Tugs Co., 689 F.Supp. 612, 619 (E.D.La.1988).

While there was conflicting testimony as to whether the presence of grain dust and dew on the barge deck caused a dangerous condition, the jury could have credited Colburn's testimony that the deck was "slippery as ice." There was further evidence that grain barges will have residue remaining on deck from the loading process, and that the TERRY K's captain should have either inspected the deck of the barge or ascertained its condition from the loading elevator before accepting it for the tow or allowing crew members to work on it. The jury could have inferred that Bunge should have known of the unsafe condition.

Bunge further contends that no evidence was presented that it was unsafe to cut the retaining band with a maul. We disagree. The Terry K's captain testified that he would have prevented the crew from using the maul for this purpose had he known of this practice. This is sufficient evidence for the jury to infer that the use of the maul by Colburn for this purpose was unsafe.

While we don't find the evidence supporting the Jones Act negligence verdict to be overwhelming, only the slightest negligence need be shown to uphold the jury verdict. Perry v. Morgan Guaranty Trust Co. of New York, 528 F.2d at 1380. Colburn has met this evidentiary burden. ³

III. TRIAL ERRORS

Bunge contends that its motion for a new trial should have been granted because of prejudicial tactics and remarks by Colburn's counsel during opening argument and trial testimony. ⁴ Despite over twenty instances of alleged prejudicial tactics and remarks, Bunge objected on only three occasions, and two of these objections were sustained. We are reluctant to address for the first time on appeal alleged errors which the trial court was not given an opportunity to consider and correct, unless it would result in a substantial miscarriage of justice. Edwards v. Sears, Roebuck & Co., 512 F.2d 276 (5th Cir.1975). Here, we are not persuaded that Colburn's tactics and comments during opening argument and trial testimony are sufficiently prejudicial that if left uncorrected would result in a substantial miscarriage of justice.

Bunge also complains about remarks made by Colburn's counsel during closing argument. "A district court may order a new trial if improper closing argument irreparably prejudices a jury verdict. The grant or denial of a new trial will not be reversed unless the district court abused its discretion...." Nissho-Iwai Co. v. Occidental Crude Sales, Inc., 848 F.2d 613, 619 (5th Cir.1988).

The propriety of Colburn's closing argument must be reviewed "within the context of the court's ruling on objections, the jury charge, and any corrective measures applied by the trial court." Westbrook v. General Tire & Rubber Co., 754 F.2d 1233, 1238 (5th Cir.1985). "[A] trial judge is generally better able than an appellate court to evaluate the prejudice flowing from improper jury arguments.... [He is] best able to measure the impact of improper argument, the effect of the conduct on the jury, and the results of his efforts to control it. Our review is not only hindsight, but is based on a written record with no ability to assess the impact of the statement on the jury or to sense the atmosphere of the courtroom." Caldarera v. Eastern Airlines, Inc., 705 F.2d 778 (5th Cir.1983).

During closing argument, Colburn's counsel made reference to Bunge's use of "gestapo-type" surveillance of Colburn, humiliation Colburn endured because of financial hardships, Bunge's violation of Colburn's constitutional rights, the need for Bunge to be punished, and the economic disparity of the parties. As with Bunge's complaints about prejudicial conduct during opening argument and trial testimony, it has chosen to wait until after the trial to address all but two statements made by Colburn's counsel during closing argument. The only statement objected to was the remark pointing out the disparity between "the rich and mighty [Bunge]" and the "poor and humble [Colburn]." The objection was sustained, and Colburn's counsel immediately followed up his remark by telling the jury that corporations are treated as equals of any other party. The jury charge also contained an instruction that "all persons, whether individuals or corporations, stand equal before the law and are to be dealt with as equals in a court of justice."

In response to Colburn's argument that it used "gestapo-type" surveillance, Bunge told the jury during its closing argument that surveillance was necessary because Colburn had not been truthful concerning his injury.

Bunge did not move for a mistrial because of any of the remarks complained of, but apparently chose to gamble on the verdict. Since its strategy failed, we will not now entertain Bunge's argument that Colburn's trial tactics are grounds for a new trial. Nissho-Iwai Co., 848 F.2d at 619; see Skaggs v. J.H. Rose Truck Line, Inc., 435 F.2d 695 (5th Cir.1970) (failure to object to use of "golden rule" argument during closing argument precludes appellate review). We find no abuse of discretion here.

IV. AMOUNT OF THE VERDICT

Bunge contends that the jury's general verdict awarding Colburn $450,000 is excessive, and that jury instructions pertaining to damages impermissibly affected the quantum of the award. Bunge makes several arguments, two of which have merit: 1) no cautionary instruction was given to ameliorate the effect of the "unit of time" argument made by Colburn's counsel, and 2) the jury was not instructed to discount the future wage loss award to present value. Recognizing that "[a]ssessment of damages is an uncertain art at best, and in the absence of a clear abuse of discretion in either direction, we must abide the jury's measure," Ward v. Buehler, 472 F.2d 1170, 1171 (5th Cir.1973) (citation omitted), we aren't persuaded that the amount of the award is per se excessive. We do, however, find that the jury charge in regard to damages was substantially flawed and resulted in prejudicial error.

A. Unit of Time

During closing argument, Colburn's attorneys made a "unit of time" argument, suggesting to the jury that $1.00 per hour for the number of hours in Colburn's 47 1/2 year remaining life expectancy, for a total of $420,000, would be a satisfactory measure of non-economic damages. Following the initial jury instructions, the trial court invited counsel to object to the...