Domonter v. CF Bean Corp.

• Decision Date: 25 April 2000
• Docket Number: No. 99-CA-1204.,99-CA-1204.
• Citation: 761 So.2d 629
• Parties: Frederick DOMONTER v. C.F. BEAN CORPORATION.
• Court: Court of Appeal of Louisiana — District of US

761 So.2d 629

Frederick DOMONTER v. C.F. BEAN CORPORATION.

No. 99-CA-1204.

Court of Appeal of Louisiana, Fifth Circuit.

April 25, 2000.

Rehearing Denied May 22, 2000.

Alan K. Breaud, Breaud & Lemoine, Lafayette, for Appellant C.F. Bean Corporation.

Lawrence Blake Jones, David C. Whitmore, Scheuermann and Jones, New Orleans, for Appellee Frederick Domonter.

Panel composed of Judges EDWARD A. DUFRESNE, Jr., SOL GOTHARD and JAMES L. CANNELLA.

CANNELLA, J.

Defendant, C.F. Bean Corporation, and plaintiff, Frederick Domonter, appeal from a judgment in a maritime personal injury case. We amend in part and affirm as amended.

On December 18, 1993, plaintiff was employed as a deckhand on the dredge, Proteus, a vessel that contains a large piece of equipment for digging and removing mud from waterways, similar to a backhoe. The dredge was constructed by defendant at its land based plant and moved by waterway to Racoon Island, 8 miles from shore. Crew members arrived and departed from the vessel by boat. This was plaintiff's first job as a deckhand, although he had previously worked for defendant as a manual laborer in the yard. Plaintiff's duties included cleaning the decks, particularly the upper deck, which would become muddy from the dredging. Around midnight on December 18, 1993, plaintiff had completed washing the upper deck and was descending from the upper deck with a bucket of dry soap in one hand when he claims that he twisted and fell when his foot caught in a piece of loose burlap, which was wrapped around the first few steps. He was not using the handrail at the time. A co-worker, Michael Brock, saw him sitting on the landing of the staircase, but did nothing until plaintiff realized that he was in pain. Michael Brock obtained help and plaintiff was assisted into the engine room, where plaintiff stayed until the crew boat arrived to take the workers to their sleeping barge. The incident was reported to the Captain. Later that day, plaintiff was taken to the dock so he could seek medical treatment pain to his back, neck and right knee. Plaintiff eventually underwent two lumbar surgeries. He had not returned to work at the date of trial.

Plaintiff filed suit for his injuries on January 20, 1995 under the Jones Act, 46 U.S.C.App. § 688 (1994), for unseaworthiness and for maintenance and cure. Trial was held on March 24, 1998 and April 20-24, 1998. In a judgment rendered on May 14, 1998, the trial judge found that plaintiff suffered the injury to his back while aboard the vessel, that the vessel was unseaworthy and that defendant was negligent because the stairs were wrapped improperly with burlap creating a glove-like situation into which plaintiffs boot slid. The trial judge found defendant to be 70% at fault in the accident and plaintiff to be 30% at fault. She awarded plaintiff $25,000 for past pain and suffering and $62,000 for future pain and suffering, (a total of $87,500), after reducing it from $125,000 for plaintiffs comparative fault. Because plaintiff failed to seek work at any time since he was released to return to work in July of 1996, the trial judge concluded that he failed to mitigate his wage loss and reduced his past lost wages of $72,186 by 50% for 21 months. She awarded plaintiff a total of $57,610 for past lost wages. The trial judge also found that plaintiff did not intend to find work and thus, failed to mitigate his future wage loss. Thus, she reduced his future lost wages of $365,818 by 60%, resulting in an award of $146,327.20. The trial judge awarded plaintiff $80,488.07 for his past medical expenses. No mention was made regarding a reduction for plaintiffs comparative fault for past lost wages, future lost wages or past medical expenses.

On appeal, defendant asserts that the trial judge erred in finding plaintiff sustained an accident aboard the vessel, that defendant breached any duty to plaintiff and that the injuries were caused by an on-board accident. Defendant further asserts that the trial judge erred in failing to assess a greater percentage of fault against plaintiff, in failing to reduce the medical expenses by the percentage of plaintiffs fault and in awarding pre-judgment interest. Alternatively, defendant asserts that the trial judge erred in awarding pre-judgment interest from the date of the alleged occurrence, rather than from the date of judicial demand.

Plaintiff answered the appeal. Plaintiff requests that his percentage of fault be reduced and that the awards for pain and suffering and lost future wages be increased.

APPEAL BY DEFENDANT

In a seaman's case brought in state court, the federal substantive law applies. Prejean v. Industrial Cleanup, Inc., 98-0948 (La.12/1/98), 721 So.2d 1273.

Jones Act Negligence and Unseaworthiness

The Jones Act allows the seaman to sue his employer for negligence. 46 U.S.C.App. § 688 (1994). Seamen are allowed to bring their Jones Act claims in state court pursuant to the "saving to suitor" clause of the Judiciary Act of 1789. Foster v. Destin Trading Corp., 96-0803 (La.11/6/97), 700 So.2d 199, 209. In matters involving admiralty and maritime jurisdiction, the saving-to-suitor clause permits state courts to have concurrent jurisdiction with the federal district courts. Foster v. Destin Trading Corp., 700 So.2d at 209.

The employer's potential liability extends to all personal injuries arising during the course of the seaman's employment, but proof of negligence is essential to recovery. Foster v. Destin Trading Corp., 700 So.2d at 208. The employer's negligence may arise in many ways, including the failure to use reasonable care to provide a seaman with a safe place to work, the existence of a dangerous condition on or about the vessel, or any other breach of the duty of care. Foster v. Destin Trading Corp., 700 So.2d at 208: Davis v. Hill Engineering, Inc., 549 F.2d 314, 329 (5th Cir.1977).

In determining a Jones Act case, the jurisprudence holds that both the employer and seaman are subject to a duty to exercise reasonable care under the circumstances. Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 338 (5th Cir.1997); Vendetto v. Sonat Offshore Drilling Co., 97-3103 (La.1/20/99); 725 So.2d 474, 482; Foster v. Destin Trading Corp., 700 So.2d at 208. In Foster, the Supreme Court cited with approval the standard of care announced in Gautreaux, but alluded (as Gautreaux did) to the necessity only of "slight" evidence to meet the burden of proving the causation prong of the liability determination. This was followed in Vendetto v. Sonat Offshore Drilling Co., 97 3103 (La.1/20/99), 725 So.2d 474, 482. The Court in Vendetto stated:

Nevertheless, since the duty to provide a safe place to work allocates substantial risks of maritime employment to the employer, identical conduct is not demanded of the employer and the employee... The law allocates different risks to different parties, and that allocation forms parts of the reasonableness equation in the negligence determination. A defendant's standard of care, like that of the plaintiff, varies according to the conduct in which the party is engaged.

Vendetto v. Sonat Offshore Drilling Co., 725 So.2d at 479.

In regard to unseaworthiness, the owner of vessel has an absolute and nondelegable duty to furnish a seaworthy vessel. Foster v. Destin Trading Corp., 700 So.2d at 209. In Foster, the Louisiana Supreme Court stated:

This duty ... extends to a defective condition of the ship, its equipment, or appurtenances ... A ship's equipment and appurtenances include most objects and things on or attached to the vessel regardless of whether the item belongs to the ship or is brought aboard by a third party....

A breach of the duty of seaworthiness gives rise to a claim for general damages. The plaintiff bears the burden of proving 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....

The test for determining unseaworthiness is one of reasonable fitness. The vessel, its equipment, and appurtenances need not be perfect, but all must be reasonably fit for their intended use... Unseaworthiness, then, is a relative term dependent on the circumstances. For example, a valve stem wrapped in duct tape created an unseaworthy condition because it could no longer be opened by hand, the intended method of operation, to regulate the flow of liquid cargo ... In contrast, an automatic valve that did not close completely did not constitute unseaworthiness when steam and hot water escaped from it and injured a worker. The court determined that its intended purpose was not to safeguard workers from escaping steam, but instead to maintain pressure inside the ship's boiler, and the automatic valve did not have to close completely to perform this function.... [Emphasis added]

Foster v. Destin Trading Corp., 700 So.2d at 209 [Citations omitted].

The unseaworthiness of a vessel results from a defective condition, not the result of an isolated negligent act. Foster v. Destin Trading Corp., 700 So.2d at 204; See: Meyers v. M/V EUGENIO C, 842 F.2d 815, 817 (5th Cir.1988). Furthermore, a plaintiff's own fault will proportionately reduce his recovery for injuries caused by the unseaworthiness of the vessel. Foster v. Destin Trading Corp., 700 So.2d at 204-05. Only if the seaman's own negligence was the sole cause of his injuries, will recovery be barred. Id.

In this case, plaintiff asserts that the dredge was unseaworthy and the employer negligent, because the burlap that was used to cover the stairs which he was descending when he fell, was placed improperly. He contends that the burlap was placed with the seam side up. That created a loose, glove-like piece of material, which caught his foot causing him to fall and land on his buttocks. Plaintiff testified that the burlap was placed there by another deckhand. The trial judge found...