Dempsey v. Mac Towing, Inc.

• Decision Date: 12 July 1989
• Docket Number: No. 88-7355,88-7355
• Citation: 876 F.2d 1538
• Parties: Edward T. DEMPSEY, Plaintiff-Appellee, v. MAC TOWING, INC., Defendant-Appellant. Edward T. DEMPSEY, Plaintiff, v. LONE STAR INDUSTRIES, INC., Defendant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1538

876 F.2d 1538

13 Fed.R.Serv.3d 1342

Edward T. DEMPSEY, Plaintiff-Appellee, v. MAC TOWING, INC., Defendant-Appellant.

Edward T. DEMPSEY, Plaintiff, v. LONE STAR INDUSTRIES, INC., Defendant.

No. 88-7355.

United States Court of Appeals Eleventh Circuit.

July 12, 1989.

Salley & Associates, Fred E. Salley, Lee M. Peacocke, New Orleans, La., Johnstone, Adams, Bailey, Gordon & Harris, Thomas S. Rue, Mobile, Ala., for defendant-appellant.

Cunningham, Bounds, Yance, Crowder & Brown, Andrew T. Citrin, Robert T. Cunningham, Jr., Steven A. Martino, Mobile, Ala., Utsey, McPhearson & Christopher, William L. Utsey, Butler, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Alabama.

Before JOHNSON and EDMONDSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

JOHNSON, Circuit Judge:

As the result of a jury trial, Mac Towing, Inc. ("Mac Towing") was held liable to Edward T. Dempsey in the amount of $300,000 for negligence under the Jones Act, 46 U.S.C.A.App. Sec. 688. Mac Towing appeals the jury's verdict as contrary to the evidence presented at trial and challenges several of the district court's actions prior to and during the trial. We affirm.

I. FACTS

From 1962-1982, Dempsey worked as a deckhand for Lone Star Towing, Inc. ("Lone Star"). On November 7, 1981, he hurt his back while working and was subsequently diagnosed as suffering from a herniated or bulging disc. He then brought a claim for relief against Lone Star under the Jones Act. In April of 1982, his employment with Lone Star was terminated because the company dissolved its Marine Operations Branch. In August of 1982, Dempsey applied for a job with Mac Towing as a deckhand. He passed the required physical examination and was hired to work on the M/V LAURA McKINNEY ("LAURA M.").

On July 6, 1983, he was working with another deckhand to lash two barges together so they could be towed. One of the barges, ACBL 3088, had been carrying a cargo of corn gluten pellets which had been only partially unloaded. The barge had been exposed to the elements for several days and the surface of the barge was slick with corn grain and corn grain dust. After attaching the LAURA M. to the stern of Barge ACBL 3200, Dempsey proceeded to the bow of ACBL 3088 so as to lash it, with the help of his co-worker, to the bow of ACBL 3200. As he was removing slack from the cable linking the two barges he stepped backward, fell on his back and was injured. He claims he fell as a result of the presence of wet grain on the deck of ACBL 3088.

Shortly after the fall, Dempsey began to experience severe back pain. On July 12, 1983, he was admitted to the hospital where he was treated for a ruptured disc. As a result of this injury, he was unable to continue work as a deckhand and took a job as a dispatcher, working for substantially lower wages than he was able to earn as deckhand.

In October 1984, Dempsey brought an action against Mac Towing in Alabama state court seeking damages arising from the July 6, 1983, back injury. His complaint alleged that the injury was a proximate result of Mac Towing's negligence as well as the unseaworthiness of the vessel upon which he was working. Mac Towing removed the action to federal district court. In March 1987, Dempsey moved to consolidate his action against Mac Towing with the Jones Act action he had pending against Lone Star. In May 1987, the motion to consolidate was granted only for the purposes of trial.

The case was tried in April 1988. At the close of Dempsey's case, Mac Towing moved for directed verdicts on both the negligence and the unseaworthiness claims. These motions were renewed at the close of Mac Towing's case. The district court granted a directed verdict on Dempsey's unseaworthiness claim against Mac Towing, but submitted the claims of Jones Act negligence against both Mac Towing and Lone Star to the jury. The jury found Mac Towing liable for negligence and awarded Dempsey $300,000 in damages. They also found Lone Star liable for negligence but did not award Dempsey any damages. The district court found the verdict as to Lone Star irreconcilable, and resubmitted the verdict against Lone Star for reconsideration. The jury subsequently found Lone Star was not liable to Dempsey under the Jones Act. Mac Towing moved the district court for a new trial, pursuant to Fed.R.Civ.P. 59, and for entry of judgment notwithstanding the verdict, pursuant to Fed.R.Civ.P. 50. The district court denied these motions.

On appeal, Mac Towing challenges the following actions by the district court before and during the trial: (i) granting Dempsey's motion for a continuance to allow him to retain an economist; (ii) denying Mac Towing's motion for a mistrial after inadmissible evidence was read to the jury, and (iii) the decision not to give three of Mac Towing's requested jury charges. Mac Towing also challenges the jury verdict, claiming that there was an absence of evidence of its negligence and that there was sufficient evidence to demonstrate Dempsey's contributory negligence. We consider each of appellant's claims in turn. ¹

II. DISCUSSION

1. Conduct of the Trial

A. Granting of a Continuance

Dempsey's complaint included a claim for lost future wages. Prior to the date set for trial, Dempsey neglected to retain an economist in order to prove the present value of his claim. On the day the trial was to begin, appellant moved in limine to preclude admission of any evidence of future wage loss as irrelevant in the absence of expert testimony which could prove the present value of Dempsey's future lost wages. The district court granted appellant's motion in limine, but also granted Dempsey's motion for a continuance to allow him to retain an economist.

The decision to grant a continuance is within the sound discretion of the district court. Crompton-Richmond Co., Inc., Factors v. Briggs, 560 F.2d 1195, 1202 (5th Cir.1977). Dempsey's counsel should have been aware of the need for expert testimony in a case like this. See, e.g., Deakle v. John E. Graham & Sons, 756 F.2d 821, 826-34 (11th Cir.1985) (providing extensive discussion of proof necessary for calculation of future lost wages and admonishing litigants to be "attentive" to these issues at trial). However, appellant had asked for and been granted three continuances at the time Dempsey requested this continuance, his first one. Further, the district court judge granted the continuance to ensure that the damage issue could be fully explored at trial. The district court's decision to grant Dempsey a continuance under these circumstances was not an abuse of discretion.

B. Motion for Mistrial

Appellant claims that the district court erred in failing to grant a mistrial when inadmissible evidence was read to the jury which it alleges was sufficiently prejudicial to deny appellant a fair trial. The district court's decision not to declare a mistrial is reviewed under the abuse of discretion standard. United States v. Elliott, 849 F.2d 554, 559 (11th Cir.1988).

During Dempsey's presentation of his case-in-chief, Captain Royce Garrison, who was piloting the LAURA M. at the time of Dempsey's 1983 accident, testified. He stated that grain on the deck of a barge was a condition which normally existed after the cargo had been discharged from a grain barge. He further testified that he assumed Mac Towing was aware of the condition aboard the barges. Appellee then directed Garrison to read a written statement he had given to appellee prior to trial. His written statement included the assertion that the company knew about the unsafe condition and did nothing about it.

After Garrison read the statement to the jury, appellant objected to the statement's admissibility and requested a mistrial. The district court sustained appellant's objection and instructed the jury to disregard Garrison's statement insofar as it purported to state an opinion as to what Mac Towing knew or did not know about deck conditions on the barge. Appellant argues that this instruction was inadequate to cure the impression left with the jury that the company had sufficient knowledge of the existence of the hazard to render it negligent for failure to make the barge surface safe.

However, Garrison proceeded to testify that he knew of the hazard presented by grain on the deck of the barges and that he had discussed the hazard with other boat captains. This testimony, combined with other testimony regarding the generally recognized danger of grain residue on barges, provides evidence from which the jury could have inferred appellant knew or should have known of the dangerous deck condition. Under these circumstances, appellant was not unduly prejudiced by the reading of Garrison's statement. We conclude that the district court did not abuse its discretion in reading the jury a curative instruction instead of declaring a mistrial.

C. Jury Instructions

Appellant challenges the district court's decision not to give three of its requested jury charges. The standard of review of a district court's jury instructions is as follows:

In reviewing the district court's jury instructions, this court will look to see whether the charges, considered as a whole, sufficiently instruct the jury so that the jurors understand the issues involved and are not misled.... Moreover, the trial court's refusal to give a requested instruction is not error where the substance of that proposed instruction was covered by another instruction which was given.... If a requested instruction is refused and is not adequately covered by another instruction, the court will first inquire as to whether the requested instruction is a correct statement of the law.... If the instruction is a correct statement of the law, the court will next look to see whether it deals with an issue which is properly before the jury.... In the event both these standards are met, there still must be a showing of prejudicial harm as...