Gautreaux v. Scurlock Marine, Inc.

• Citation: 107 F.3d 331,1997 A.M.C. 1521
• Decision Date: 28 February 1997
• Docket Number: Nos. 95-30250,95-30272,s. 95-30250
• Parties: Charles D. GAUTREAUX, Plaintiff-Appellee, v. SCURLOCK MARINE, INC., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 331

107 F.3d 331

1997 A.M.C. 1521

Charles D. GAUTREAUX, Plaintiff-Appellee, v. SCURLOCK MARINE, INC., Defendant-Appellant.

Nos. 95-30250, 95-30272.

United States Court of Appeals, Fifth Circuit.

Feb. 28, 1997.

Leonard Arthur Radlauer, New Orleans, LA, for Plaintiff-Appellee.

Allen F. Campbell, Gene Ray Smith, Deutsch, Kerrigan & Stiles, New Orleans, LA, for Defendant-Appellant.

Lawrence S. Kullman, Lewis & Kullman, New Orleans, LA, for Louisiana Trial Lawyers Association, Amicus Curiae.

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

Before POLITZ, Chief Judge, and KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER and DENNIS, Circuit Judges.

DUHE, Circuit Judge:

Defendant-Appellant Scurlock Marine, Inc. moves this En Banc Court to consider whether seamen, in Jones Act negligence cases, are bound to a standard of ordinary prudence in the exercise of care for their own safety, or whether they are bound to a lesser duty of slight care. On appeal to a panel of this Court, Scurlock Marine had assigned as error, inter alia, the district court's instructions to the jury charging that seamen were bound only to a duty of slight care for their own safety. The panel denied Scurlock Marine relief on this point because the jury instructions were consistent with what the panel considered was the settled law of this Circuit. Gautreaux v. Scurlock Marine, Inc., 84 F.3d 776, 780-81 (5th Cir.1996). A review of our Jones Act case law reveals, however, that this "settled law" obtains from doubtful parentage. We thus now overrule cases contrary to the principles embraced in this opinion and AFFIRM in part, VACATE in part and REMAND for further proceedings as to comparative fault consistent with our decision today.

BACKGROUND ¹

Archie Scurlock, as President and owner of Scurlock Marine, Inc., ("Scurlock Marine") The BROOKE LYNN is a standard inland push boat, equipped with two towing winches on her bow, which are used to secure lines joining the BROOKE LYNN to the barges in her tow. The starboard side winch is hydraulic, and the port side winch is electric. Upon being hired, Gautreaux was taken to the BROOKE LYNN and instructed on her operation by Archie Scurlock. Orgeron took Gautreaux on a tour of the vessel, showing him her layout and familiarizing him with her equipment. Orgeron showed Gautreaux the manual crank handle that accompanied the port side electric winch and told him that it was to be used to override the electric switches on the winch if they failed. Orgeron explained that, if the winch became "bound up" and failed to engage by use of the electric ignition switch, the manual crank should be attached to the winch motor and turned a few times to "unbind" the winch, and then the electric ignition switch should be used to try to engage the winch. Neither Scurlock nor Orgeron told Gautreaux that if he needed to use the manual crank handle to unbind the winch, he should not leave it on the winch motor when attempting to engage the winch by use of the electric ignition switch.

purchased the M/V BROOKE LYNN in May, 1993, and retained Lance Orgeron as her first and permanent captain. Scurlock hired Charles Gautreaux as the BROOKE LYNN's relief captain in October, 1993. Gautreaux was qualified for the position, having worked as a tanker man since the early 1980s and having recently earned a United States Coast Guard master's license.

About four months after he was hired, Gautreaux, serving as captain of the BROOKE LYNN, relieved the tanker man on duty and began off loading of the barge in tow. As the barge discharged its cargo, it began to rise in the water, eventually causing the towing wires to become taut. Noticing this, Gautreaux attempted to relieve the tension in the wires by unwinding them from the winches. He released the starboard wire first, which caused that side of the BROOKE LYNN to drop and the port side towing wire to become even tighter. Gautreaux then attempted to release the port side wire, but the electric winch would not work. He attached the manual crank to the winch motor, and began turning the crank while simultaneously pressing the electric ignition switch. When the motor started, the manual crank handle flew off and struck Gautreaux on the right side of his face, crushing his right eye and inflicting other severe injuries.

Gautreaux sued Scurlock Marine, alleging that his injuries were caused by its negligence and the unseaworthiness of the BROOKE LYNN. Gautreaux's primary complaint was that Scurlock Marine failed to properly train him in the use and operation of the electric towing winch and its manual crank handle, thereby not providing him a safe place to work. Scurlock Marine answered and sought exoneration from or limitation of its liability. After a two-day trial, the jury returned a verdict in favor of Gautreaux on his Jones Act negligence claim, but found the BROOKE LYNN seaworthy. The jury apportioned fault 95% to Scurlock Marine and 5% to Gautreaux and awarded a total of $854,000 in damages. ²

The district court entered judgment for Gautreaux for $811,300. By separate order, the district court denied Scurlock Marine's petition for limitation of liability. Scurlock Marine moved in the alternative for judgment as a matter of law, for new trial, or to alter, amend, or remit the judgment. The district court denied these motions, conditioning its denial of Scurlock Marine's motion for new trial on Gautreaux's acceptance of a remittitur. ³ Gautreaux accepted the remittitur On appeal to this Court, Scurlock Marine argued, inter alia, that in its instructions regarding contributory negligence, the district court erred by charging the jury that a Jones Act seaman need exercise only "slight care" for his own safety. Scurlock Marine maintained that the standard to which Gautreaux, and all seamen, should be held is that of a reasonably prudent person exercising ordinary or due care under like circumstances. Accordingly, Scurlock Marine urged this Court to abandon the slight care standard in Jones Act cases, contending the standard "has evolved from this Court's blind adherence to an incorrect statement of the law." Gautreaux, 84 F.3d at 781 n. 7. The panel acknowledged that the viability of the slight care standard has recently been questioned but considered it the settled law of this Circuit. It thus refused to hold that the district court erred in giving the "slight care" instruction, noting that "settled law of this Circuit, such as the slight care standard in a Jones Act case, can only be changed, absent action by the United States Supreme Court, by this Court sitting en banc." Id. The panel accordingly affirmed the district court's judgment and this en banc rehearing followed.

and the district court entered an amended judgment for $736,925 for Gautreaux. ⁴

STANDARD OF REVIEW

While trial courts are accorded substantial latitude in formulating jury instructions, "we must reverse when we have a substantial doubt that the jury has been fairly guided in its deliberations." Bode v. Pan American World Airways, Inc., 786 F.2d 669, 672 (5th Cir.1986) (internal quotations and citation omitted); see also Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1216 (5th Cir.1995).

DISCUSSION

The district court's instruction, consistent with the Fifth Circuit's Pattern Jury Instructions, ⁵ informed the jurors that "[i]n determining whether the plaintiff was contributorily negligent, you must bear in mind that a Jones Act seaman does not have a duty to use ordinary care under the circumstances for his own safety. A Jones Act seaman is obliged to exercise only slight care under the circumstances for his own safety at the time of the accident." Scurlock Marine asserts that this charge is defective, maintaining that historically, Jones Act seamen had been expressly bound to a standard of ordinary prudence under like circumstances. In support of its contention, Scurlock Marine cites early Supreme Court opinions to illustrate that the phrase "slight negligence" or "slight care" stood not for the duty of care owed by employers and employees, as the phrase is now understood, but for that quantum of evidence necessary to sustain a jury verdict on review. The duty of care owed by both parties, Scurlock Marine contends, had always been, and should remain, that of the reasonable person.

We acknowledge there is much confusion in this Circuit as to the proper standard of care by which juries should measure a plaintiff's duty under the Jones Act to protect himself. While some courts have instructed juries that a plaintiff's duty is only one of slight care, as did the district court in the instant case, others charge that the duty is one of ordinary prudence. Admittedly, this Court has been less than clear in its articulation of the proper standard of care to which seamen are bound. We granted this en banc rehearing to eliminate the uncertainty and to consider returning, as Scurlock Marine requests, to the reasonable person standard.

A. The Development of the Slight Care, or Slight Negligence, Standard

The language chosen by Congress to determine the responsibility of both employers and employees under the Jones Act is simple and direct. Nothing in the statute

indicates that Congress intended to hold Jones Act employees to a standard of slight duty of care in the exercise of concern for their own safety. Below, we explain the statutory scheme and Supreme Court precedent interpreting it before we illustrate our departure from their clear mandates.

1. The Statutory Scheme and Supreme Court Precedent

Under the Jones Act, seamen are afforded rights parallel to those of railway employees under the Federal Employers' Liability Act ("FELA"). 46 U.S.C. § 688. Section 51 of the FELA provides, in pertinent part, that "[e]very common carrier by railroad ... shall be liable in damages ... for such...