Duzon v. Stallworth

• Decision Date: 11 December 2002
• Docket Number: No. 2001 CA 1187.,2001 CA 1187.
• Citation: 866 So.2d 837
• Parties: Salvador R. DUZON, Carolyn R. Duzon, on behalf of the Community of Acquets and Gains, Individually and on behalf of the Minor Children, Salvador Duzon, Jr. and John R. Duzon, and Tomas Paral, Personal Representative of the Estate of Andy S. Paral v. Thomas L. STALLWORTH, Queen Bee Transport, Inc., Venture Transports, Inc., Reliance National Indemnity, Cal-Dive International, Inc., and ABC Insurance Company.
• Court: Court of Appeal of Louisiana — District of US

866 So.2d 837

Salvador R. DUZON, Carolyn R. Duzon, on behalf of the Community of Acquets and Gains, Individually and on behalf of the Minor Children, Salvador Duzon, Jr. and John R. Duzon, and Tomas Paral, Personal Representative of the Estate of Andy S. Paral v. Thomas L. STALLWORTH, Queen Bee Transport, Inc., Venture Transports, Inc., Reliance National Indemnity, Cal-Dive International, Inc., and ABC Insurance Company.

No. .

Court of Appeal of Louisiana, First Circuit.

December 11, 2002.

Order Denying Rehearing January 29, 2003.

Writ Denied May 2, 2003.

Richard J. Dodson, Kenneth H. Hooks, III, Baton Rouge, Jerald P. Block, Thibodaux, Counsel for Plaintiffs/Appellees Salvador R. Duzon, Carolyn R. Duzon, on behalf of the Community of Acquets and Gains, Individually and on Behalf of the Minor Children, Salvador Duzon, Jr. and Joseph R. Duzon.

Michael A. Colomb, W. Steven Mannear, Baton Rouge, Counsel for Defendant/Appellee Tomas Paral, Personal Representative of the Estate of Andy S. Paral.

T. Patrick Bayham, Steven K. Best, Metairie, Counsel for Defendant/First Appellant Cal Dive International, Inc.

S. Daniel Meeks, John B. Esnard, III, Metairie, L. Charles Caillouet, Thibodaux, Christopher J. Aubert, Covington, Counsel for Defendants/Second Appellants, Thomas L. Stallworth, Queen Bee Transport, Inc., Venture Transport, Inc., and Reliance National Indemnity Co.

Thomas P. Anzelmo, Sr., Metairie, Counsel for Defendant/Appellee Wal-Mart Stores, Inc.

Before: WHIPPLE, DOWNING and PATTERSON,¹ JJ.

DOWNING, J.

This litigation arises out of a December 18, 1998 accident wherein two crewmembers serving aboard a ship docked in Fourchon, Louisiana, were returning to the vessel on a bicycle when an eighteen-wheeler truck hit them from behind. One of the crewmen died; the other suffered serious permanent injuries. After a trial on the merits, the jury returned a verdict in favor of the surviving crewmember and in favor of the parents of the deceased crewmember, and awarded damages. The jury allocated fault among the crewmembers, the shipowners, the driver, the owners and the insurers of the truck. The shipowners and the liable parties associated with the truck appealed the judgment. The parents of the deceased crewmember and the surviving crewmember filed answers to appeal.

For the following reasons, we affirm in part, amend in part.

FACTS AND PROCEDURAL HISTORY

On the night of December 18, 1998, Salvador Duzon (Duzon) and Andy Paral (Paral), Filipino seamen working as stewards on the vessel, the M/V Witch Queen, borrowed a bicycle provided for use by the crewmembers and rode it to a convenience store. While they were returning to the ship, with Duzon seated on the handlebars and Paral on the seat pedaling the bicycle, an 18-wheeler truck hit them from behind. Thomas Stallworth, an employee of the truck's owner, Queen Bee Transport, Inc. (Queen Bee), was driving. Venture Transport, Inc., was the legal operator of the truck. These parties are here collectively referred to as "Stallworth." Duzon was seriously injured and now suffers permanent disability. Paral died as a result of the accident.

Duzon and Paral's parents, as his legal representative and in their own right, sued the M/V Witch Queen's owner, Cal Dive International, Inc. (Cal Dive), alleging among other things that it owned the bicycle, that the bicycle was defective, and that this made the M/V Witch Queen unseaworthy. They also alleged that Cal Dive failed in its duty to provide the crew with bicycle safety training. Plaintiffs also sued Stallworth and their insurer, Reliance National Indemnity, for damages caused by the driver's negligence.

Cal Dive filed a third-party claim against Wal-Mart claiming Wal-Mart was liable because the bicycle, if defective, was defective when purchased. Wal-Mart was dismissed prior to trial on motion for summary judgment.

A jury trial was held from July 31, 2000 through August 9, 2000. The jury returned a verdict totaling over four million dollars, assigning 10% fault to Cal Dive, 25% fault to Duzon, 25% fault to Paral, and 40% fault to Stallworth. On cross-motions for new trial, judgment notwithstanding the verdict or to amend the judgment, however, the trial court, pursuant to its understanding of the Jones Act,² applied the principle of negligence per se and reformed the allocation of fault to attribute 60% to Cal Dive, 40% to Stallworth and 0% to plaintiffs. Judgment was signed accordingly.

Cal Dive and Stallworth both appealed the judgment against them. Paral's parents and Duzon filed answers to these appeals.

We also consider a motion to strike that was referred to the merits of this appeal.

CAL DIVE'S ASSIGNMENTS OF ERROR

Cal Dive assigned the following nine assignments of error on appeal:

1. The trial court committed consequential error, requiring de novo review, when it utilized incorrect and prejudicial jury instructions and ruled to exclude certain evidence related to the blood alcohol levels of plaintiffs.

2. The trial court committed reversible error in applying negligence per se. 3. The trial court committed reversible error by instructing the jury regarding negligence per se.

4. The trial court committed reversible error by "correcting" the jury's findings, and changing its decision from 10% liability against Cal Dive to 60%.

5. The trial court committed reversible error in denying Cal Dive's request for a new trial and/or directed verdict.

6. The trial court erred in excluding critical evidence of the blood alcohol level of plaintiffs as well as evidence of the effects of alcohol on bicycle riders.

7. The trial court committed reversible error by allowing prejudicial and inflammatory comments made by plaintiffs' counsel during closing arguments.

8. The trial court committed reversible error by dismissing Wal-Mart as a third-party defendant from this lawsuit prior to trial.

9. The jury abused its discretion in the allocation of fault and assessment of damages.

STALLWORTH'S ASSIGNMENTS OF ERROR

Stallworth assigned the following six assignments of error:

1. The jury erred in finding that Stallworth had a duty to anticipate and guard against striking a bicycle being operated in the middle of the road at night, by persons wearing dark clothes with no reflective material, in an unlit, rural, industrial area, and without a front headlamp, or a rear retroreflector; or alternatively, if Stallworth owed a duty that encompassed the risk that befell plaintiffs, the jury erred in allocating 40% of the liability for the accident to Stallworth.

2. The trial court erred in charging the jury as to the presumption of negligence of a motor vehicle colliding with the rear of a bicycle, and in failing to charge the jury with the sudden emergency doctrine.

3. The trial court erred in failing to admit evidence of the blood alcohol levels of plaintiffs, and the potential effects of alcohol on them under the circumstances.

4. The trial court was manifestly erroneous in failing to include Brunswick, the bicycle manufacturer, on the jury verdict form.

5. The trial court erred in determining the partial summary judgment rendered in favor of Wal-Mart was final and immediately appealable, in granting Wal-Mart's Motion for Summary Judgment, in precluding evidence of Wal-Mart's negligence at trial, and in refusing to include Wal-Mart on the jury verdict form.

6. The trial court erred in assessing 40% of the responsibility for the payment of cure to Stallworth.

PARAL'S PARENTS' ANSWER TO APPEAL

Paral's parents answered the appeal alleging the following four assignments of error:

1. That the judgment appealed from by defendants be modified to increase the amount of damages awarded in the trial court to an amount more consistent with the facts and law;

2. That the allocation of fault to Salvador R. Duzon and Andy S. Paral be reversed or that the allocation of any fault found on the part of Andy S. Paral be ascribed to his Jones Act employer, Cal Dive International, Inc. 3. That, as so modified by this Court, the judgment of the trial court be affirmed; and

4. That appellants and defendants below be condemned to pay all costs in the trial court and in this appeal.

DUZON'S ANSWER TO APPEAL

Duzon answered the appeal and assigned the following six assignments of error:

1. That the judgment appealed from be modified to increase the amount of general damages from $625,000.00 to $3,000,000.00;

2. That the judgment appealed from be modified to increase future wages, including past and future found from $90,000.00 to $184,736.73;

3. That the judgment appealed from be modified to find no fault existed with respect to Duzon and Paral;

4. That the judgment appealed from be modified to apply any fault on the part of Andy Paral to his Jones Act employer, Cal Dive International, Inc.;

5. That the amended judgment be affirmed; and

6. That appellant be ordered to pay the legal costs in the trial court and in this appeal.

MOTION TO STRIKE

Duzon also filed a motion to strike part of the record that was supplemented by ex parte order of the trial court. The supplement included affidavits setting forth material not contained in the original trial record and a judgment on costs. By order of this court filed April 23, 2000, the motion to strike was referred to the merits.

DISCUSSION

NEGLIGENCE PER SE

A. GENERAL LEGAL PRECEPTS

Because an employer is liable for the negligence of its employees under the Jones Act, the Jones Act generally provides a broad basis for liability. The Jones Act contains a liberal causation requirement. If the employer's negligence played any part, however small, it results in liability. Brister v. A.W.I., Inc., 946 F.2d 350, 354 (5 Cir.1991). Evidence of the "slightest" negligence is sufficient to sustain a finding of Jones Act liability, and the burden on a plaintiff for showing causation in a Jones Act claim is "featherweight." Johnson v. Offshore Express, Inc., 845 F.2d 1347, 1352 ...