Gaston v. Flowers Transp., Civ. A. No. 87-463.

• Decision Date: 30 December 1987
• Docket Number: Civ. A. No. 87-463.
• Parties: Roger GASTON, v. FLOWERS TRANSPORTATION.
• Court: U.S. District Court — Eastern District of Louisiana

675 F. Supp. 1036

1988 AMC 1070

Roger GASTON, v. FLOWERS TRANSPORTATION.

Civ. A. No. 87-463.

United States District Court, E.D. Louisiana.

December 30, 1987.

Leonard A. Radlauer, New Orleans, La., for plaintiff.

W.J. Larzelere, Jr., C. Theodore Alpaugh, W.J. Larzelere, Jr., Larzelere, Ellefson & Pulver, Metairie, La., for defendant.

ORDER AND REASONS

MENTZ, District Judge.

Before this Court is the motion of defendant, Cro-Marine Division, (Cro-Marine), a division of Chromalloy American Corporation, for summary judgment.

This action was commenced by Mr. Roger Gaston (Gaston) for injuries Gaston allegedly sustained due to an accident that occurred on the M/V MARINER on February 24, 1986. Gaston and his half-brother were seamen working as deckhands aboard the M/V MARINER. Gaston was employed by defendant, Flowers Transportation, which owned and operated the vessel. On February 24, 1987, Gaston's half-brother fell into the water while attempting to secure mooring lines and was crushed to death between two vessels. Initially, Gaston claimed damages for physical injuries incurred as a result of the incident. However, it is apparent by Gaston's answers to interrogatories that his physical injury was so inconsequential¹ that his real demand is only for mental injury allegedly caused by witnessing the death of his half-brother.²

Cro-Marine seeks summary judgment on two issues. First, whether Gaston has a cause of action under the Jones Act or General Maritime law for wholly mental injuries sustained from witnessing peril to another. Second, whether the M/V MARINER was unseaworthy.

For the purpose of this motion, the Court adopts plaintiff's allegations of fact. Gaston claims that due to the negligence of the vessel's captain, the barge was struck extremely hard, knocking both Gaston and his half-brother down. Gaston's half-brother was thrown between two barges and Gaston fell onto the deck. Gaston attempted to stand up, slipped in diesel oil on the deck, grabbed the hands of his half-brother, but was unable to save his half-brother from the crush of the barges. Gaston's Jones Act and General Maritime Law claims for damages due to mental injury sustained from observing the death of his half-brother presents a question of first impression for the Court.

ANALYSIS

I. The Jones Act Claim

The Court is unable to find authority to recognize a cause of action for wholly emotional injuries under the facts presented in this case. The Circuits have, of yet, only recognized a cause of action for a seaman's mental injury when it arises from the seaman's physical injury. Gaston argues that in Hagerty v. L & L Marine Services, Inc., 788 F.2d 315 (5th Cir.1986), the Fifth Circuit dispensed with the physical impact requirement, thus entitling a seaman to recover solely for mental injury.

In Hagerty, a Jones Act seaman sued his employer for damages he sustained from being drenched with the chemical dripolene.³ Hagerty claimed damages for pain, suffering, and mental anguish, including mental anguish sustained from his fear of developing cancer. Hagerty also sought compensation for medical expenses he incurred from biannual medical examinations which included blood and laboratory work. An issue on appeal was whether Hagerty could recover damages for cancerphobia. The court held that cancerphobia was merely a specific type of mental anguish or emotional distress and that courts have long allowed plaintiffs to recover for physical and emotional harm under the Jones Act. In addressing this damages issue, the court stated that "with or without physical injury or impact, a plaintiff is entitled to recover damages for serious mental distress arising from fear of developing cancer where his fear is reasonable and causally related to the defendant's negligence." Id. at 318.

Though Gaston argues that Hagerty is directly on point, the Court is of the opinion that the facts in Hagerty are clearly distinguishable from the instant case. The defendant in Hagerty was negligent in using a defective barge and/or equipment to load chemicals. Hagerty was directly impacted by the defendant's negligence. His body was drenched with chemicals which exposed him to a risk of developing cancer. His mental anguish arose from his anxiety over the possibility of contracting cancer. Even though Hagerty might never develop cancer, the risk was ever-present. Consequently, his fear was for his own well-being and was reasonably and causally related to being soaked with toxic chemicals.

In contrast, Gaston's mental anguish did not arise from fear for his personal welfare, but from the horror of seeing his half-brother crushed to death. There is no evidence that Gaston feared for his own safety, as did Hagerty. The only injury Gaston suffered which could be associated with the defendant's alleged negligence was his bruised elbow. The Court believes that the language in Hagerty was not intended to be construed to authorize a seaman's recovery for mental injury sustained from watching peril to another. To date, none of the Circuit Courts have addressed this issue.

Gaston's alternative argument that he was in the zone of danger of the accident and therefore should be entitled to recover is significant only if this Court were to apply Louisiana tort law. The United States Supreme Court has indicated that the Circuit Courts may refer to state law to decide new issues concerning recovery for wholly emotional injuries. Atchison, Topeka & Santa Fe Railway Company v. Buell, ___ U.S. ___, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987). In Buell, a railroad employee filed a FELA suit, alleging that the railroad had condoned his harassment by fellow employees, causing him to suffer an emotional breakdown. The court held that the record was insufficient to address plaintiff's ability to recover under the FELA for a purely emotional injury. 107 S.Ct. at 1417. Nevertheless, the court stated that whether a FELA employee may recover solely for emotional injury might rest on a variety of subtle and intricate distinctions related to the nature of the injury and the character of the tortious activity." 107 S.Ct. at 1417. The Court suggested that guidance in resolving this issue might be forthcoming from the developing common law in the various states. 107 S.Ct. at 1417-1418.

Since the Jones Act is based upon the FELA, this Court will follow the Supreme Court's directive in Buell and consider the law of Louisiana, the state where both plaintiff and defendant reside, to determine whether to recognize a seaman's cause of action for wholly mental injury suffered from witnessing peril to another.

Since Black v. Carrollton Railroad, 10 La.Ann. 33 (1855), Louisiana has refused to allow recovery for mental anguish occasioned by another's injury or suffering. The only exception to this rule are cases of wrongful death and cases where the claimant's mental anguish is occasioned by the defendant's breach of a primary and independent legal or contractual duty which is owed directly to the aggrieved plaintiff. Turgeau v. Pan American World Airways, 764 F.2d 1084, 1087 (5th Cir.1985). Louisiana law allows an individual to recover for "fright, fear, or mental anguish" sustained while an ordeal is in progress, regardless of whether the individual was physically injured. Tudela v. Pan American World Airways, 764 F.2d 1082, 1083 (5th Cir.1985). Under all these theories, the individual must be...