Gray v. Texaco, Inc.

• Decision Date: 09 December 1992
• Docket Number: No. 91-992,91-992
• Citation: 610 So.2d 1090
• Parties: Glenn W.D. GRAY, et ux., Plaintiffs-Appellees, v. TEXACO, INC., Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 1090

610 So.2d 1090

Glenn W.D. GRAY, et ux., Plaintiffs-Appellees, v. TEXACO, INC., Defendant-Appellant.

No. 91-992.

Court of Appeal of Louisiana Third Circuit.

Dec. 9, 1992.

On Rehearing Feb. 5, 1993.

Writ Denied April 12, 1993.

Jones, Jones & Alexander, J.B. Jones, Cameron, for plaintiffs-appellants.

Stockwell, Sievert, Viccellio, Clements & Shaddock, Robert W. Clements, Lake Charles, for defendant-appellee.

Before DOUCET and KNOLL, JJ., and MARCANTEL, ^* J. Pro Tem.

BERNARD N. MARCANTEL, Judge Pro Tem.

The issue of this appeal is whether the trial judge erred in granting a motion for judgment notwithstanding the verdict dismissing with prejudice an American seaman's suit for personal injuries, and, alternatively, granting a new trial if the motion for judgment notwithstanding the verdict was improperly granted.

Glenn W.D. Gray (hereinafter Gray) filed suit against Texaco, Inc. (hereinafter Texaco) for personal injuries arising out of an accident which allegedly occurred on June 5, 1989, in Grand Lake, Cameron Parish, Louisiana, while he was in the course and scope of his employment. Gray's action was brought as an American seaman (1) under the Jones Act, 46 U.S.C.App. Sec. 688, for negligence, (2) under the General Maritime Law for unseaworthiness of the vessel ROBIN B, and (3) for punitive damages, attorney's fees and penalties for failure to provide maintenance and cure. Gray's wife, Louisa LeBlanc Gray, joined the action asserting a claim for loss of consortium.

The case, which was tried before a jury, began on March 11, 1991, and was completed five days later. A unanimous verdict was returned, awarding Gray general damages in the amount of $790,000.00, and punitive damages in the amount of $2,000,000.00. The jury also awarded $20,000.00 in consortium damages to Mrs. Gray.

Texaco timely filed a Motion for Judgment Notwithstanding the Verdict (hereinafter Motion for JNOV), which the trial court granted, setting aside the jury verdict and dismissing Gray's petition with prejudice, and a Motion for New Trial, which the trial court granted in the event the Motion for JNOV was vacated or reversed.

It is from this judgment that Gray timely appeals.

FACTS

On June 5, 1989, while on board the S/B ROBIN B, Gray and his roustabout crew were laying pipe in a portion of Grand Lake. Barrel floats were used to prevent the line from sinking to the lake bottom as the line was made up on the ROBIN B and pulled across the water by a wire line unit stationed approximately 2,000 feet away.

After several sections of pipe were laid, it became necessary to attach a second set of barrels to the line to keep the line from sagging beneath the water. Gray pushed the barrels over the side of the boat and began to ride the barrel float out to the connection point. Conflicting testimony was given as to whether Gray was instructed by his supervisor, Clifford Little, as a safety precaution, not to ride the float out to the connection point, but to wait for him to retrieve an aluminum boat to use to position the barrel float underneath the line.

As Gray mounted the barrels and rode them out to the connection point, Little arrived with the aluminum boat and pulled along side Gray and the barrel float. Gray stepped into the boat and attempted to tie the pipe from the boat. He was not successful because the water was choppy and the barrels and pipe kept hitting together. Gray, fearing that he could possibly lose his hand if it was caught between the barrels and the pipe, remounted the barrels to try and tie them from that position. As he knelt on the barrels, a wave caused him to flip over into the water and land on his back.

Gray's supervisor, Little, tied the pipe off and then pulled Gray into the aluminum boat. There was conflicting testimony as to whether Little pulled Gray into the boat before he finished tying off the pipe. Gray completed his work day but, by the time he started driving home, he was experiencing pain in his legs and back and a co-employee finished the drive home.

Gray's relief, Lynn Decuir, testified that he saw Gray that evening and that Gray stated he had gotten hurt.

Later in the evening of June 5, 1989, Gray called Texaco's safety engineer, Carl Armentor (now deceased), and reported to him that he had fallen off some barrels and was hurt. They both decided that he should wait a few days and see if he would get better before seeing a doctor.

Gray's condition did not improve and, on the morning of June 8, 1989, he went to see his family physician, Dr. Roy Landry. In deposition, Dr. Landry stated that he remembered Gray telling him that he had fallen off a barge into the water and had injured his back.

Dr. Landry referred Gray to Dr. Harold J. Hebert, an orthopedic surgeon, who concluded that Gray was suffering from a degenerative disc disease. After physical therapy treatment, which caused him more pain, Gray consulted Dr. Louis Blanda, an orthopedic surgeon, who found that Gray had an abnormal disc at L5-S1. Eventually, back surgery was performed on Gray.

Texaco introduced evidence at trial of Gray's history of back trouble and of a complaint of back stiffness on June 2, 1989, when Gray was stringing pipe on land in the East Hackberry Field location. Different accident reports were introduced into evidence which gave conflicting dates as to when and how Gray was injured. Some reports referred to the June 2, 1989, date, and another referred to June 5, 1989.

The trial court stated in its reasons for judgment that "there is a total lack of evidence to support any connection between plaintiff's medical problems and the incident of June 5, 1989." The trial court further stated that "the weight of evidence that plaintiff did not suffer any injury-causing accident on June 5, 1989, is overwhelming and that reasonable men could not conclude otherwise." (Emphasis added.)

Gray appeals the trial court's granting of the Motion for JNOV.

LAW

The Louisiana Supreme Court, in Anderson v. New Orleans Public Service, Inc., 583 So.2d 829, at page 832 (La.1991), discusses the criteria to be used in determining when a motion for JNOV is proper:

"A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fairminded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. Scott [v. Hospital Service Direct No. 1,] supra [496 So.2d 270 (La.1986) ]. In making this determination, the court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party.

In reviewing a JNOV, the appellate court must first determine if the trial court erred in granting the JNOV. This is done by using the aforementioned criteria just as the trial judge does in deciding whether to grant the motion or not, i.e., do the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict? If the answer to that question is in the affirmative, then the trial judge was correct in granting the motion. If, however, reasonable men in the exercise of impartial judgment might reach a different conclusion, then it was error to grant the motion and the jury verdict should be reinstated."

We further note that, under the Federal jurisprudence, an even lighter burden of proof is placed upon the plaintiff, i.e. the so-called "featherweight" burden is applied in determination of the employer's motion for a directed verdict in a Jones Act case. Cobb v. Rowan Companies, Inc., 919 F.2d 1089 (5th Cir.1991); Bommarito v. Penrod Drilling Corp., 929 F.2d 186, at 188 (5th Cir.1991), citing Thornton v. Gulf Fleet Marine Corp., 752 F.2d 1074 (5th Cir.1985), quoting Lavender v. Kurn, 327 U.S. 645, 652, 66 S.Ct. 740, 743, 90 L.Ed. 916, 922 (1946). Under the "featherweight" burden, a directed verdict is justified "only when there is a complete absence of probative facts to support the verdict."

After reviewing the record in the case sub judice, we conclude that it was error to grant Texaco's motion for JNOV. The evidence presented to the jury was of such conflicting nature that it is impossible to say that reasonable men could not reach different conclusions. It appears from the record that the jury found the plaintiff and his witnesses to be more credible than those of Texaco and the award to plaintiff reflects its conclusions of credibility. As previously stated, the trial court should not evaluate the credibility of the witnesses and all factual questions should be resolved in favor of the non-moving party. Therefore the motion for JNOV granted by the trial court is set aside.

The trial court granted in the alternative a new trial if the Motion for JNOV was set aside. While the trial court remains the original forum for resolving factual and legal issues, when an appellate court has all the facts before it, a remand is not necessary. Gonzales v. Xerox Corp., 320 So.2d 163 (La.1975); Knight v. Miller, 503 So.2d 120, 124 (La.App. 5 Cir.1987). Therefore, instead of remanding for a new trial, this court will decide de novo the issues of the case, and the trial court is ordered not to proceed with a new trial as provided for in La.C.C.P. Art. 1811(C)(2).

SEAMAN STATUS

The first issue which must be addressed is whether Gray was a Jones Act seaman.

The Jones Act provides that "Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an...