Duncan v. American Commercial Barge Line

• Decision Date: 27 July 2004
• Docket Number: No. ED 82171.,ED 82171.
• Citation: 166 S.W.3d 78
• Parties: Mary DUNCAN, as Personal Representative of the Estate of Gary Duncan and on Behalf of Mary Duncan, the Surviving Spouse of Gary Duncan, Respondent, v. AMERICAN COMMERCIAL BARGE LINE, LLC, Appellant.
• Court: Missouri Supreme Court

Page 78

166 S.W.3d 78

Mary DUNCAN, as Personal Representative of the Estate of Gary Duncan and on Behalf of Mary Duncan, the Surviving Spouse of Gary Duncan, Respondent, v. AMERICAN COMMERCIAL BARGE LINE, LLC, Appellant.

No. ED 82171.

Missouri Court of Appeals, Eastern District, Division Three.

July 27, 2004.

Motion for Rehearing and/or Transfer to Supreme Court Denied September 28, 2004.

Raymond L. Massey, John S. Farmer, James W. Erwin, St. Louis, MO, for appellant.

Nelson G. Wolff, St. Louis, MO, for respondent.

LAWRENCE E. MOONEY, Judge.

This is an appeal of an admiralty action regarding Gary Duncan, a 48-year-old seaman who died from coronary artery disease that led to an arrhythmia and sudden cardiac death on May 31, 1999, aboard American Commercial Barge Line LLC's vessel, the "Miss Kae D." Mary Duncan, as personal representative of the estate and widow of the deceased, sued the defendant under the Jones Act, 46 U.S.C. Section 688, alleging that the defendant was negligent in failing to provide a safe place for Mr. Duncan to work. The plaintiff argued that Mr. Duncan was overworked through the years and deprived of the help and sleep he needed while working aboard the defendant's vessels. In consequence of these conditions, he suffered from stress and fatigue that caused or contributed to cause his coronary artery disease that ultimately led to his death. After trial, the jury returned a verdict for the plaintiff in the amount of $950,000. The defendant appeals from the trial court's judgment entered upon that verdict.

Statement of Facts

Viewed in the light most favorable to the jury's verdict, giving the plaintiff the benefit of all reasonable inferences, the evidence adduced at trial is as follows.

From 1992 to 1996, Mr. Duncan was assigned to work on a number of the defendant's vessels. Beginning in 1996, he was regularly assigned as chief engineer to the Miss Kae D, a 195-foot long, 9000-horsepower inland river towboat, powered by three large diesel engines. As chief engineer, Mr. Duncan's duties consisted of maintaining the vessel's engines and mechanical systems. Mr. Duncan lived and worked on the vessel for approximately 40 consecutive days per trip, and then would be off work for approximately 20 days. However, the defendant often called Mr. Duncan back to work before his 20 days of rest had been completed and he regularly was required to maintain the engine room without assistance for over 40 days at a time.

The defendant's engineers were required to conduct thorough and frequent inspections, maintenance, and repairs. Maintenance was often required because the engines were operated 24 hours a day, 7 days a week. The failure of an engineer to fulfill all emergency and regularly scheduled engine-room responsibilities could result in damage to the equipment, collision with a bridge, or the sinking of the vessel. Such failure could also result in loss of employment. The testimony at trial was that these working conditions were unsafe and unhealthy.

Testimony at trial also established that a minimum of three regular engine-room people per trip, scheduled on opposite watches, were required to properly maintain the Miss Kae D and to allow its engine crew adequate sleep. Other companies in the barge-towing industry crewed a minimum of two engineers on similar vessels, working opposite schedules, in order to allow for uninterrupted sleep.

The defendant's company policy stated that its engineers were to be assigned to work 12-hour shifts and that "the engineer has no one to relieve nor is relieved by anyone." On the Miss Kae D, however, the engineer was expected to interrupt his sleep and rest hours to work numerous additional hours during his "off watch" periods to perform unscheduled work, including responding to engine alarms, taking on fuel, and changing power packs. It was impossible for the engineer to schedule his work, so as to allow for adequate sleep, because the alarms, emergency situations and general work demands were unpredictable and frequent and because the completion of some duties essential for continuous vessel operation required more than six hours of continuous work. Sleeping conditions for the defendant's engineers were further compromised by the constant loud noise created by the nearby engines. Mr. Duncan's sleep was also often interrupted or destroyed by the sound of loud alarms in his bedroom, signaling real and false emergencies, which required his immediate mental and physical attention. Extreme fatigue resulted from the excessive hours, inadequate assistance and sleep deprivation. Requests by Mr. Duncan and other engineers for assistance were either unanswered or refused. Instead of providing assistance to the chief engineers, the defendant occasionally would require them to train other employees to work as engineers, which actually created more work with additional stress and responsibilities for chief engineers like Mr. Duncan.

Mr. Duncan was required to work as the only scheduled engineer on the Miss Kae D for 15 consecutive days prior to his death. Mr. Duncan began his last trip on May 23, 1999. On May 31st, the day that he died, Mr. Duncan did not have a trainee engineer on board, but was assisted by second chief engineer Brad Barton, who had gotten on the vessel the previous day. During his last days, Mr. Duncan was prevented from getting enough sleep or any rest because of alarms, mechanical problems, and inadequate assistance to such an extent that he told Mr. Barton that "they're killing me." According to Mr. Barton, Mr. Duncan "looked like a zombie." Mr. Barton testified that Mr. Duncan was under significant stress when Mr. Barton got on the boat the day before Mr. Duncan died. Mr. Duncan's face was pale white and ghostly. Mr. Duncan confided to Mr. Barton that he had been having significant problems. Mr. Duncan had said he felt terrible, that he had been on the boat by himself for a period of somewhere between eleven and fifteen days, during which time there had been a considerable amount of mechanical trouble with the vessel. He had been working under trying conditions with heat and with broken fans in the emergency room. He felt the need for more help but was not able to get it. In Mr. Barton's language, Mr. Duncan was absolutely exhausted, he was sick, he had been sick to his stomach the night before, he was sick to his stomach on the day he died.

During the hours preceding his death, Mr. Duncan replaced a several-hundred-pound power pack in a 125-degree engine room that had overheated due to a defective ventilation system. He was in fear of passing out. Mr. Duncan began to feel ill and turned pale due to the work conditions, so he took a break and, about 20 minutes later, suffered a cardiac death.

Medical evidence presented at trial established that Mr. Duncan's cardiac death resulted from severe coronary artery disease and ventricular arrhythmia, and that the unsafe, unhealthy and excessive working conditions caused significant psychological stresses, such as chronic and acute anxiety, depression, sleep disturbance and inadequate sleep, excessive fatigue and emotional drain, during a period of years prior to his death, which caused him to suffer coronary artery disease and sudden cardiac death.

After hearing all of this evidence, the jury rendered a verdict in favor of the plaintiff.

Points on Appeal

The defendant presents six points on appeal.¹ In its first three points, the defendant contends that the trial court erred in failing to direct a verdict in the defendant's favor. The defendant claims this error because (1) Mr. Duncan suffered no physical impact nor was he in the zone of danger of a physical impact in that he died suddenly of a cardiac arrest; (2) Mr. Duncan's death was not foreseeable in that neither Mr. Duncan nor the defendant knew that Mr. Duncan suffered from coronary artery disease and its symptoms never manifested themselves before his sudden death; and (3) the plaintiff's claim is barred by the three-year statute of limitations in that the plaintiff alleged that Mr. Duncan suffered compensable pain and suffering from work-related stress during the entire seven years he worked for the defendant before his death and thus his survival cause of action for such damages accrued more than three years before this action was filed. In its fourth point on appeal, the defendant claims error due to an instruction allowing the recovery of damages for pain and suffering and for loss of society allegedly incurred before Mr. Duncan's death because the estate of a seaman who dies instantaneously can only recover pecuniary losses, and cannot recover for pain and suffering under the circumstances in this case. In its fifth point, the defendant protests that his counsel was prohibited from arguing in closing argument that Mr. Duncan experienced no pain and suffering immediately before his death and thus, under Instruction No. 9, his estate was not entitled to such damages, because counsel was entitled to explain how the law as given in the instructions applies to the facts. In its last point on appeal, the defendant claims error in the denial of its motion to dismiss for lack of venue. Finding no error, we affirm.

Directed-Verdict Issues

We shall first address the three arguments the defendant sets forth in support of the defendant's alleged entitlement to a directed verdict.

The principal question in reviewing a trial court's denial of a motion for directed verdict or judgment notwithstanding the verdict (JNOV) is whether or not the plaintiff made a submissible case. Missouri Dept. of Transp. ex rel. PR Developers, Inc. v. Safeco Ins. Co. of America, 97 S.W.3d 21, 31 (Mo.App. E.D.2002). In order to make a submissible case, substantial evidence is required for each and every fact essential to liability. Id. The issues of whether or not the evidence is substantial and whether or not the inferences drawn are reasonable present questions...