Graham v. Offshore Specialty Fabricators, Inc., No. 2009 CA 0117 (La. App. 1/8/2010)
| Decision Date | 08 January 2010 |
| Docket Number | No. 2009 CA 0117.,2009 CA 0117. |
| Parties | MARSHALL GRAHAM v. OFFSHORE SPECIALTY FABRICATORS, INC. AND CASHMAN EQUIPMENT CORPORATION |
| Court | Court of Appeal of Louisiana — District of US |
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v.
OFFSHORE SPECIALTY FABRICATORS, INC. AND CASHMAN EQUIPMENT CORPORATION
ON APPEAL FROM THE 16TH JUDICIAL DISTRICT COURT PARISH OF ST. MARY, LOUISIANA DOCKET NO. 112, 661, DIVISION "F" HONORABLE EDWARD M. LEONARD, JR., JUDGE PRESIDING.
TIMOTHY K. LAMY, BARKER, BOUDREAUX, LAMY & FOLEY Attorney for Plaintiff-Appellee/Appellant Marshall Graham.
KEVIN J. LaVIE PHELPS DUNBAR LLP Attorney for Defedant-Appellant/Appellee Offshore Specialty Fabricators, Inc.
JOSEPH P. TYNAN, PATRICK E. O'KEEFE, DIANA B. MOORE, MONTGOMERY, BARNETT, BROWN, Attorneys for Defendant-Appellant/Appellee Cashman Equipment Corporation
BEFORE: PARRO, KUHN, AND McDONALD, JJ.
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PARRO, J.
This appeal involves a judgment in favor of Marshall Graham, who was injured in a fall on the deck of a dredge barge owned by Cashman Equipment Corporation (CEC), while working as a deckhand on a tugboat owned by his employer, Offshore Specialty Fabricators, Inc. (Offshore). A jury found CEC and Offshore were both at fault and Graham was contributorily negligent; it awarded Graham damages, but limited CEC's liability to the value of the dredge barge, which was $160,000. Offshore and CEC appealed; Graham answered and cross-appealed. For the following reasons, we reverse in part and affirm in part.
On September 16, 2003, Graham began working for Offshore as a deckhand on the tugboat, MEGAN E. DUPRE. Offshore had leased a large deck barge from CEC, and on the night of December 17, 2003, the MEGAN E. DUPRE was returning CEC's deck barge at the expiration of the lease to a "barge fleet" on the Atchafalaya River near Morgan City.1 CEC had a number of its vessels and other marine equipment stored at this location, including an old dredge barge, CONICAL,2 which had been partially dismantled and was later sold for scrap. In order to tie up CEC's deck barge at the designated location, two of CEC's other barges and the CONICAL had to be moved, which required another Offshore tugboat, the E.H. DEMOUY, to assist the MEGAN E. DUPRE. Graham and Richard Craven, a deckhand from the E.H. DEMOUY, had to walk on the deck of the CONICAL, which was moored against the river bank, in order to untie its lines. Unknown to the two deckhands, the CONICAL had two large unmarked holes in its deck, one of which was hidden in shadows cast by spotlights from the two Offshore tugboats involved in the barge shifting procedure. Craven fell partially into one of these holes, and Graham also
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fell at the same location when he went to help Craven. As a result of their falls, both Graham and Craven were injured.
Graham filed Jones Act and unseaworthiness claims against Offshore and general maritime negligence and unseaworthiness claims against CEC in the Sixteenth Judicial District Court (16th JDC),3 claiming damages for injuries to his knee, neck, and lower back. A jury found that both defendants were liable and that Graham was contributorily negligent; it assigned 60% fault to CEC, 25% fault to Offshore, and 15% fault to Graham. It awarded Graham $200,000 in past physical and mental pain and suffering, $25,000 for loss of enjoyment of life, $44,700 for past loss of income, and $125,000 for loss of future earning capacity.4 Applying a federal maritime statute, CEC's liability was limited to the value of the dredge barge, which was $160,000. A judgment incorporating the jury verdict was signed on June 15, 2007, and was amended by the court to correct a clerical error on June 21, 2007. In response to a motion for new trial and for amendment of the judgment, the judgment was again amended to correct other errors on August 31, 2007. CEC's subsequent motion for new trial or judgment notwithstanding the verdict was denied. Offshore and CEC appealed; Graham answered the appeal and cross-appealed.
Offshore assigns as error the jury's determination that CEC was entitled to limitation of liability, alleging the CONICAL was no longer a "vessel" when the accident occurred, and even if it were, the limitation of liability was not appropriate, because CEC did not meet its burden of proving that it had no "privity or knowledge" of the condition that caused Graham's injury. Offshore also appeals the amount of past lost wages and loss of future earning capacity awarded to Graham.
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CEC contends the jury's answers to interrogatories were inconsistent; therefore, the court erred in denying its motion for new trial or judgment notwithstanding the verdict to correct the inconsistency. The alleged inconsistency is that the jury found CEC could limit its liability, which is only available if the jury found CEC had no "privity or knowledge" of the risk, and therefore, the jury's finding of liability and allocation of fault to it is error. In the alternative, CEC asserts that it should not have been assessed any fault or that its fault should be fixed at less than 60%. CEC also appeals the amounts of the pain and suffering and loss of future earning capacity awards.
Graham's answer to the appeal seeks reversal of CEC's limitation of liability, stating that the jury erroneously concluded that CEC lacked "privity or knowledge" of the hole in the deck of the CONICAL. He also alleges the CONICAL was not a vessel. In response to CEC, although Graham believes the jury erred in limiting CEC's liability, he points out that the jury's finding of no "privity or knowledge" does not interdict its finding of negligence on the part of CEC. He also argues that the general damage award is reasonable and that the evidence supports the awards for past lost wages and loss of future earning capacity.
CEC responded to Offshore's and Graham's arguments that the CONICAL was no longer a vessel, asserting that this issue was not presented to the lower court in a pleading or at trial, nor was it raised when the jury instructions concerning limitation of liability were prepared. Therefore, CEC contends that the CONICAL's status as a vessel is not properly before this court.
Admiralty claims may be brought in federal court pursuant to its admiralty jurisdiction or in state court under the savings to suitors clause. See 28 U.S.C. § 1333. In either case, federal substantive maritime law applies. Antill v. Public Grain Elevator of New Orleans, Inc., 577 So.2d 1039, 1040 (La. App. 4th Cir.), writ denied, 581 So.2d 684 (La. 1991). State appellate courts sitting in maritime cases
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apply state standards of review. Winkler v. Coastal Towing, LLC., 01-0399 (La. App. 1st Cir. 4/11/02), 823 So.2d 351, 356. Louisiana appellate courts apply the manifest error-clearly wrong standard of review of facts in general maritime and Jones Act cases. Terrebonne v. B & J Martin, Inc., 03-2658 (La. App. 1st Cir. 10/29/04), 906 So.2d 431, 435. The two-part test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of the trier of fact; and 2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La. 1987). Thus, if there is no reasonable factual basis in the record for the trier of fact's finding, no additional inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a factual finding only if, after reviewing the record in its entirety, it determines the factual finding was clearly wrong. See Stobart v. State, through Dep't of Transp. and Dev., 617 So.2d 880, 882 (La. 1993). If the trial court's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse. Where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Trinh ex rel. Tran v. Dufrene Boats, Inc., 08-0824 (La. App. 1st Cir. 1/22/09), 6 So.3d 830, 836, writs denied, 09-0406 and 0411 (La. 4/13/09), 5 So.3d 166, cert. denied, 130 S.Ct. 228 (2009).
Issues of negligence and causation in admiralty cases are treated as fact questions. Johnson v. Offshore Exp., Inc., 845 F.2d 1347, 1352 (5th Cir. 1988), cert. denied, 488 U.S. 968, 109 S.Ct. 497, 102 L.Ed.2d 533 (1988). A court sitting in admiralty apportions damages in accordance with principles of comparative negligence. Vulcan Materials Co. v. Vulica Shipping Co., Ltd., 859 F.Supp. 242, 250 (W.D. La. 1994).
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The Jones Act allows an injured seaman to bring a negligence suit against his employer. 46 U.S.C. § 30104(a).5 The employer's potential liability extends to all personal injuries arising during the course of the seaman's employment, but proof of negligence is essential to recovery. Such negligence may arise in many ways, including the failure to use reasonable care to provide a seaman with a safe place to work, the existence of a dangerous condition on or about the vessel, or any other breach of the duty of care. Zentner v. Seacor Marine, Inc., 06-2049 (La. App. 1st Cir. 10/24/07), 977 So.2d 962, 965. The duty of care owed by an employer under the Jones Act is that of ordinary prudence, namely, the duty to take reasonable care under the circumstances. Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 334-36 (5th Cir. 1997). The seaman bears the evidentiary burden of proving that a breach of the duty owed by the employer was a cause of his injuries. Foster v. Destin Trading Corp., 96-0803 (La. 5/30/97), 700 So.2d 199, 208. A seaman is obligated under the Jones Act to act with ordinary prudence under the circumstances. The circumstances of a seaman's employment include not only his reliance on his employer to provide a safe work environment but also his own experience, training, or education. The reasonable person standard in a Jones Act negligence action becomes that of the reasonable seaman in like circumstances. ...
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