Cook v. Ross Island Sand and Gravel Co.

• Decision Date: 02 September 1980
• Docket Number: No. 76-3625,76-3625
• Parties: Bruce Edward COOK, Administrator of the Estate of Dennis Brian Cook, Plaintiff-Appellee, v. ROSS ISLAND SAND AND GRAVEL COMPANY, an Oregon Corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 746

626 F.2d 746

Bruce Edward COOK, Administrator of the Estate of Dennis Brian Cook, Plaintiff-Appellee, v. ROSS ISLAND SAND AND GRAVEL COMPANY, an Oregon Corporation Defendant-Appellant.

No. 76-3625.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 13, 1979.

Decided Sept. 2, 1980.

Clayton Hess, Portland, Or., for defendant-appellant.

Thomas F. Mortimer, Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before WALLACE, HUG and PECK, ^* Circuit Judges.

JOHN W. PECK, Circuit Judge.

Plaintiff Bruce Edward Cook, administrator of the Estate of Dennis Brian Cook, filed a wrongful death action in the district court under the provisions of the Jones Act, 46 U.S.C. § 688, and in accordance with general maritime law. The action was instituted following the death of Dennis Cook, an employee of defendant Ross Island Sand and Gravel Company who had drowned in the Columbia River on January 24, 1974. The action proceeded to a jury trial, wherein defendant admitted liability for the decedent's death. Thus, the trial below dealt exclusively with the question of what damages, if any, defendant was obligated to pay. The jury, after hearing both eyewitness and expert testimony, returned a verdict in favor of plaintiff on two of the three elements of damage which plaintiff had claimed. The jury awarded $100,000 for the decedent's "conscious pain and suffering" and $75,000 for the "value of deprivation of (decedent's) comfort, care, aid and society." However, the jury did not award damages for the "deprivation of (decedent's) physical assistance" to his mother. ¹ After the jury had returned its verdict, defendant moved the district court to enter a judgment n.o.v. The court denied defendant's motion, and instead issued sua sponte an order of remittitur. Therein, the court reduced the jury's award for "pain and suffering" from $100,000 to $35,000, as well as its award for "deprivation of comfort, care, aid and society" from $75,000 to $15,000. Plaintiff has accepted the court's order of remittitur; defendant nevertheless perfected the present appeal.

Defendant raises three basic issues, two of which relate to the court's award for pain and suffering. First, defendant argues that plaintiff was not entitled to damages for the decedent's pain and suffering of a mental nature. Second, and in the alternative, defendant argues that, even if damages for mental pain and suffering are properly compensable under maritime law, there was not sufficient evidence presented at trial to support the court's award of $35,000. Finally, defendant argues that, both under the provisions of the Jones Act and under the principles of general maritime law, a plaintiff is not entitled to damages for the deprivation of a decedent's "comfort, care, aid and society." We conclude that the arguments of defendant are without merit, and we affirm the district court's award both on the element of the decedent's conscious pain and suffering, as well as on the element of the loss of the decedent's comfort, care, aid and society.

I. THE EVIDENCE

At the time of his death on January 24, 1974, the decedent Dennis Cook was employed by defendant Ross Island Sand and Gravel Company as a deckhand on one of the company's tugs and barges. On that date, according to the testimony of eyewitness Captain Robert Osborne, the decedent fell off the tug and barge and into the Columbia River. Although Captain Osborne testified as to the details of the decedent's fall, his testimony did not indicate whether the decedent had been conscious either during his fall, or immediately after he had entered the water. For example, Captain Osborne did not indicate that he had, at any time, heard the decedent cry for help.

The decedent's body was found approximately three months later. A short time thereafter, on May 17, 1974, Dr. Larry Newman, a forensic pathologist, performed an autopsy on the body. Dr. Newman testified at trial that the autopsy had established that the cause of the decedent's death had been asphyxia from drowning. Dr. Newman further testified that the autopsy had produced no evidence that the decedent had sustained any skull fracture whatever. Based on the absence of such evidence, Dr. Newman concluded that the decedent had been conscious when he had entered the Columbia River, and that he had remained conscious for up to two and one-half minutes after he had become submerged in its water.

In addition to Dr. Newman, plaintiff called another medical expert, Dr. Barry Maletsky, a specialist in the fields of psychiatry and neurology, to describe for the jury the mental pain and suffering which the decedent had experienced. In his testimony, Dr. Maletsky detailed the severe emotional strain and anguish that a drowning person experiences in the moments immediately prior to his death. Further, Dr. Maletsky indicated that, in a death by drowning, the final moments of consciousness seem longer in duration to the drowning person who is struggling for his life.

II. MENTAL PAIN AND SUFFERING

Defendant makes the general assertion that a decedent's mental pain and suffering is not a pecuniary loss that is compensable either under the provisions of the Jones Act or under the principles of general maritime law. We need not address this argument of defendant in the context of general maritime law, in light of the fact that a decedent's mental pain and suffering is a compensable injury under the provisions of the Jones Act. ²

At the outset, we note that the pain and suffering of the decedent Dennis Cook did not result from an injury of a strictly mental nature. Dr. Larry Newman, the pathologist who had performed the autopsy on the decedent's body, testified that the cause of the decedent's death had been asphyxia from drowning. Asphyxiation is a physical injury, and thus the evidence of record establishes that the alleged pain and anguish of the decedent Dennis Cook resulted from a physical injury.

Second, while we assume, for the sake of argument, that the Jones Act permits a decedent's beneficiaries to recover damages only for the "pecuniary losses" which they have sustained, ³ we note that the Act further permits these beneficiaries to recover damages for any loss or injury that was sustained by the decedent himself.

Section 688 of the Jones Act incorporates the death provisions of the Federal Employers Liability Act (FELA), 45 U.S.C. §§ 51-60. It has been held that, under the provisions of the FELA, a decedent's beneficiaries are able to recover, in relation to their personal damages, only those damages that are classified as pecuniary losses. See, e.g., Michigan Central Railroad v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417 (1913); Ivy v. Security Barge Lines, Inc., 606 F.2d 524 (5th Cir. 1980). According to the definition that has been given by the courts, pecuniary losses are limited to those losses that ". . . (may) be measured by any money standard." American Railroad Company of Porto Rico v. Didricksen, 227 U.S. 145, 150, 33 S.Ct. 224, 225, 57 L.Ed. 456 (1913). Thus, the loss of a decedent's support ⁴ a pecuniary loss is a damage that is compensable in an action under the Jones Act; however, the grief, bereavement, anxiety distress or mental pain and suffering of a decedent's beneficiaries ⁵ all non-pecuniary losses are damages that are not compensable in such action. Cf. Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 584-585, notes 11-17, 94 S.Ct. 806, 814-815, notes 11-17, 39 L.Ed.2d 9 (1974).

Yet, while the Jones Act arguably may apply a pecuniary loss restriction to the personal losses of a decedent's beneficiaries, ⁶ the Act does not apply a pecuniary loss restriction to the injuries of a decedent himself. On the contrary, a decedent's beneficiaries are able to recover damages for any type of injury or loss which the decedent sustained during the time that he was conscious prior to his death. Section 59 of the FELA, which is incorporated into the Jones Act, provides that "(a)ny right of action given by this chapter to a person suffering injury shall survive to his or her personal representative . . . ." Courts have never interpreted this provision to require the bifurcation of the conscious pain and suffering of a decedent or a claimant either into categories of "pecuniary loss" versus "nonpecuniary loss," or into categories of "physical injury" versus "mental or emotional injury." Rather, courts have interpreted the provision to allow a plaintiff to recover damages for all conscious pain and suffering of a decedent or a claimant, mental or otherwise, at least when such pain and suffering has been accompanied by an injury of a physical nature. See, e.g., Gillespie v. United States Steel Corporation, 379 U.S. 148, 156-158, 85 S.Ct. 308, 313-314, 13 L.Ed.2d 199 (1964); Barger v. City of Baltimore, 616 F.2d 730 (4th Cir. 1980) (emotional injury caused by loss of hearing compensable under the Jones Act); Borras v. Sea-Land Service, Inc., 586 F.2d 881, 884-886 (1st Cir. 1978) (in plaintiff's action under the Jones Act, liability of defendant for plaintiff's mental breakdown is a question for the jury); Menard v. Penrod Drilling Co., 538 F.2d 1084, 1089 (5th Cir. 1976) (damages for plaintiff's impotency, as well as damages for his mental anguish and humiliation are recoverable under the Jones Act). See generally, 2 Benedict, Admiralty at 7-7 (7th ed., revised, 1979). As stated above, the mental pain and anguish that was experienced by the decedent Dennis Cook was accompanied by the physical injury that he experienced in the course of his asphyxiation.

This policy of allowing damages for a decedent's mental pain and anguish, but of excluding damages for the mental pain and anguish of a decedent's beneficiaries is a policy that is based on sound reasoning. In essence, the mental pain and suffering of a decedent's beneficiaries is the emotional response of the...