Gautreaux v. Insurance Co. of North America, 85-3737

• Citation: 811 F.2d 908
• Decision Date: 09 March 1987
• Docket Number: No. 85-3737,85-3737
• Parties: , 1988 A.M.C. 2702 Dale GAUTREAUX, Plaintiff-Appellee, v. INSURANCE COMPANY OF NORTH AMERICA and McDermott Incorporated, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 908

811 F.2d 908

96 A.L.R.Fed. 525, 1988 A.M.C. 2702

Dale GAUTREAUX, Plaintiff-Appellee, v. INSURANCE COMPANY OF NORTH AMERICA and McDermott Incorporated, Defendants-Appellants.

No. 85-3737.

United States Court of Appeals Fifth Circuit.

March 9, 1987.

John Nesser, III, Patricia A. Krebs, New Orleans, La., for defendants-appellants.

Michael X. St. Martin, Denis J. Gaubert, III, Houma, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before WILLIAMS, JOLLY and DAVIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

The appellee, Dale Gautreaux, brought this Jones Act suit for injuries he sustained while working as the acting leaderman of a construction rigging crew on a barge owned by the appellant, McDermott Incorporated ("McDermott"). A jury found McDermott negligent but also found Gautreaux contributorily negligent to the extent of fifty percent. In a general verdict, the jury assessed Gautreaux's damages at $483,000. The trial court entered judgment in favor of Gautreaux for $241,500. The appellants McDermott and Insurance Company of North America now contend that (1) the trial court erred by not submitting their proposed jury instructions on Gautreaux's work experience and the "sudden emergency doctrine"; (2) the evidence is insufficient to support the jury's finding of McDermott's negligence; and (3) the jury's assessment of damages is excessive. Finding no reversible error, we affirm the trial court on the first two issues. However, because we cannot find sufficient evidence in the record to support the full amount of the general verdict, we remand to the district court for a new trial on the issue of damages.

I

At the time of the accident, McDermott, an offshore construction company, employed Gautreaux as a leaderman, in a temporary capacity, on McDermott Derrick Barge 16. Gautreaux was second in command of a construction rigging crew and the deck foreman, Larry Spivey, was first in command. Gautreaux and two crew members were rigging lines from a steel sling to a deck section. Wire cable was available, but Gautreaux ignored the suggestion of one rigger to use the cable to lift the heavy sling. Instead, he instructed the crew members to use a 3/4 inch manila rope to tie the steel sling to the crane boom. Gautreaux then ordered the crane operator to raise the sling. With the sling raised to a height of approximately twenty feet, the crew tried to align the shackle of the sling over a padeye welded on the deck section. They tied ropes, or "dog lines," from the eye of the sling to the deck section, but their attempts to align the sling failed. Gautreaux radioed Spivey for assistance. Spivey arrived and ordered one crew member out of the access hole directly under the sling. Under Spivey's direction, the crew began securing more dog lines from the eye of the sling to the deck. The dog lines were attached to prevent the sling from falling through the access hole if the manila rope were to break. Spivey then directed Gautreaux to radio the crane operator and instruct him to raise the sling four or five inches. Gautreaux relayed the message.

At trial, the crane operator testified that he never received Spivey's instruction and did not raise the sling. Gautreaux and another crew member testified, however, that after Gautreaux radioed Spivey's order, the dog lines tightened, indicating that the sling had been lifted. In any event, the manila rope tightened and broke. The sling fell to the deck striking Gautreaux and a second crew member.

Gautreaux suffered knee injuries including a torn major ligament that required surgery. After the surgery, Gautreaux suffered from chondromalacia, a form of posttraumatic arthritis. One year after the accident, Gautreaux's physician performed an arthroscopic examination of the knee and surgically shaved the injured knee surfaces. Two years after the accident at the time of the trial, Gautreaux was still receiving at least some physical therapy and had not returned to work.

At trial, Gautreaux's physician testified that permanent partial disability to the knee totaled twenty-five percent. The appellants' orthopedic specialist testified that the permanent partial disability to Gautreaux's knee totaled forty percent. Although both physicians agreed that Gautreaux could begin working as a crane operator or in a similar capacity by May 1985, they both advised against permitting Gautreaux to perform labor that would involve repetitive stooping, lifting, standing, squatting, or climbing.

Gautreaux introduced the testimony of an expert economist who calculated Gautreaux's lost meals and wages resulting from the injury to be $382,493.26. In calculating Gautreaux's past and future wage loss, the expert used a leaderman's salary of $11.96 an hour. Because the evidence showed that Gautreaux was to be demoted to relief crane operator shortly after the accident, the appellants' counsel, on cross-examination, requested that the expert recalculate Gautreaux's total wage loss using a relief crane operator's salary of $9.35 per hour. The expert arrived at a new figure of $303,664.14 that represented total lost meals and wages.

In closing argument, Gautreaux's counsel asked the jury to award $383,000 for total wage and meal loss and $100,000 for pain and suffering. The jury returned a general verdict finding that (1) McDermott was liable; (2) Gautreaux was fifty-percent contributorily negligent; and (3) Gautreaux was entitled to $483,000 in damages.

II

The appellants contend that the trial court's jury instructions were erroneous in two respects. First, they argue that the trial court failed to properly instruct the jury regarding Gautreaux's twenty years of offshore work experience and that Gautreaux was therefore subject to a standard of care higher than that of an ordinary Jones Act seaman. Second, they argue that the trial court should have instructed the jury on the "sudden emergency doctrine." We find no merit to either contention.

A.

With respect to Gautreaux's work experience, the appellants allege that the trial court gave a "boiler-plate" Jones Act negligence charge which misled the jury into believing that Gautreaux was held only to the slight standard of care required of an ordinary Jones Act seaman. ¹ The trial court charged the jury, "In your consideration of the claims and defenses of the parties, you may consider the experience, expertise, and work history of the individuals involved in light of the legal principles that follow." Record, Vol. VI at 313. This language apprised the jury that it could consider Gautreaux's work experience and conveyed the substance of the appellants' proposed instruction. The district court's refusal to give the charge in the particular language chosen by the appellants is not error. Freimanis v. Sea-Land Services, Inc., 654 F.2d 1155, 1163-64 (5th Cir.1981).

B.

The appellants next contend that the trial judge erroneously failed to instruct the jury on the "sudden emergency doctrine." As defined by the Louisiana Supreme Court, that doctrine applies if an actor finds himself in a position of imminent peril and lacks sufficient time to evaluate the danger confronting him. In such situations, the actor is not guilty of negligence if he fails to "adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence." Hickman v. Southern Pacific Transport Co., 262 La. 102, 262 So.2d 385, 389 (1972).

The appellants argue that the doctrine of sudden emergency applies in this case because Spivey faced an emergency situation that was not created by his own negligence; rather, it was created by Gautreaux's negligent use of the manila rope. They therefore argue that the jury should have been instructed on the emergency facing Spivey. Their proposed jury instructions included the following: "Thus, if you find that Larry Spivey came upon a dangerous situation which necessitated immediate action, you must weigh his conduct by a different standard from that of a person in a non-emergency situation." Defendants' Jury Charge No. 13.

The appellants' proposed instruction misstates the law. This court held in Martin v. City of New Orleans, 678 F.2d 1321 (5th Cir.1982), that the doctrine of sudden emergency does not invoke a different standard of care than that applied in any other negligence case. The conduct required is still that of a reasonable person under the circumstances. Id. at 1325; see also W. Prosser,Law of Torts, Sec. 33 at 168-70 (1971).

In Martin, a negligence action was brought against the City of New Orleans and one of its police officers. Because the officer's disputed conduct occurred during a perilous situation, the defendants requested a jury instruction on the doctrine of sudden emergency. The trial court, however, gave a general negligence instruction. A panel of this court held that the trial court adequately instructed the jury to consider the emergency situation and that the general definition of negligence substantially covered the requested charge. Martin, 678 F.2d at 1325-26. The court reasoned that the jury had heard sufficient testimony and was well aware of all facts giving rise to the emergency facing the police officer in that case.

Similarly in this case, the trial court gave a general definition of negligence. As in Martin, the jury was well aware of the serious danger present on Derrick Barge 16 when the accident occurred. The charge, although not expressed in the appellants' language, adequately conveyed the essence of the requested instruction and is not reversible error. Id.; McCullough v. Beech Aircraft Corp., 587 F.2d 754, 759 & n. 9 (5th Cir.1979).

III

The appellants also argue that the evidence presented at trial was insufficient to support the jury verdict of negligence on the part of McDermott. The appellants base this argument on...