Hernandez v. Bunge Corp.

• Decision Date: 10 April 2002
• Docket Number: No. 01-CA-1201.,01-CA-1201.
• Parties: Lazaro HERNANDEZ v. BUNGE CORPORATION, McKinney Towing, Inc., Zen-Noh Grain Corporation, Welcome Fleet & Barge Service, Inc., ABC Insurance Company, DEF Insurance Company, GHI Insurance Company and XYZ Insurance Company.
• Court: Court of Appeal of Louisiana — District of US

814 So.2d 783

Lazaro HERNANDEZ v. BUNGE CORPORATION, McKinney Towing, Inc., Zen-Noh Grain Corporation, Welcome Fleet & Barge Service, Inc., ABC Insurance Company, DEF Insurance Company, GHI Insurance Company and XYZ Insurance Company.

No. 01-CA-1201.

Court of Appeal of Louisiana, Fifth Circuit.

April 10, 2002.

Rehearing Denied May 6, 2002.

Lawrence Blake Jones, David C. Whitmore, Scheuermann and Jones, New Orleans, LA, and Joel T. Chiasson, Chiasson and Chiasson, Destrehan, LA, for Plaintiff/Appellant (Lazaro Hernandez).

Wilton E. Bland, III, C. William Emory, Mouledoux, Bland, Legrand & Brackett, New Orleans, LA, for Defendants/Appellees (McKinney Towing, Inc., McKinney Fleet & Barge Service, Inc. and Welcome Fleet & Barge Service, Inc.).

Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY, and WALTER J. ROTHSCHILD.

SOL GOTHARD, Judge.

In this appeal, plaintiff, Lazaro Hernandez, seeks review of a trial court judgment dismissing his claims against defendant, McKinney Towing, Inc. (McKinney). For reasons that follow, we affirm.

This matter began when Hernandez filed a petition for damages he sustained while working as a deckhand. In his original petition, plaintiff asserted Jones Act and unseaworthiness claims against Bunge Corporation (Bunge) and McKinney. He also asserted claims in general maritime law against Zen-Noh Elevator (Zen-Noh) and Welcome Fleet & Barge Service, Inc. (Welcome), and a claim for maintenance and cure against his employer, McKinney. In a supplemental and amending petition, plaintiff added McKinney Barge and Fleet Service, Inc. (McKinney Barge) as a defendant. Bunge and Zen-Noh were dismissed from the suit, leaving only McKinney, McKinney Barge, and Welcome as defendants.¹

In due course the matter went to trial on the merits, after which the trial court rendered a judgment against plaintiff, Lazaro Hernandez, dismissing all claims against McKinney.² Plaintiff appeals that judgment.

FACTS

The record shows that plaintiff was working as a deckhand in the employ of McKinney on August 18, 1995. While moving barges from the river tug, Anita Domino, into the tow of the Susan K, he injured his back and left shoulder. The trial court, in reasons for judgment, made the following factual findings:

The Anita Domino's work consisted primarily of moving barges from the Zen-Noh grain elevator to the wash dock at Welcome Fleet at mile 163 on the Mississippi River and then into the tow of waiting line boats. The line boats (like the Susan K) would then push the barges upriver. On August 18, 1995, the Susan K arrived at Welcome to pick up five empty barges and two loads for just such an operation. Records show that the seven barges the Susan K was to pick up arrived at Welcome Fleet some time prior to August 16, 1995. On August 16th, the five empty barges were washed, and on August 18, 1995, at approximately 4:50 p.m., the Anita Domino began bringing the barges from the wash dock site of the river to the anchored Susan K. At approximately 5:30 p.m. that same day, there was a crew change, and plaintiff Lazaro Hernandez went on duty. He and Captain Glenn Williams were to complete the operation of moving the barges into tow.

Plaintiff's job during this period of time consisted of riding on the barges across the river from Welcome Fleet and then assisting the crew of the Susan K in wiring the barges into the tow. To do so, the crew and Hernandez used rigging consisting of heavy cable and ratchets. They would throw the rigging across the barges at the coupling sites and then make the wires fast.

Between 9:30 and 10:30 p.m. on August 18, 1995, plaintiff and the crew of the Susan K were distributing rigging on the port string of the tow. The evidence indicates that these barges were empty and had, therefore, been washed at the wash dock, which was also operated by a McKinney company. It was dark, and plaintiff was working with a flashlight that was attached to his vest. The Bunge employees were using bulls' eye lights that attached to their heads with a band. Plaintiff and the Bunge crew had been walking on the deck of the barge where the accident allegedly happened for approximately one hour prior to the time plaintiff claims he slipped and fell on grain.

At approximately 10:30 p.m. plaintiff fell while throwing a ratchet from the barge where he had been working to another barge that had previously been wired into the tow. The central issues of fact in this case is whether plaintiff slipped on a slick substance on the deck of the barge or whether he re-injured his back by throwing a ratchet, an action commonly done in the context in which plaintiff was working but one that his doctor had warned him not to perform.

At trial plaintiff testified he was working as a deckhand for McKinney on August 18, 1995. He and other deckhands were spreading rigging throughout each coupling in order to tie the empty barges together for towing by the Susan K. The Susan K is a large river boat that takes large numbers of barges up and down the river. The rigging consisted of large ratchets, sling wires and cables. In the process of setting this rigging, plaintiff had thrown about 8 or 9 ratchets, each of which consists of a barrel and two pelican hooks, and weighs about 30 to 40 pounds. As he went to throw one of the ratchets, he slipped and the ratchet hit him in the shoulder, knocking him toward the other barge. Plaintiff stated that "some kind of mushy smelly substance" on the deck caused him to slip. He called out for assistance and then got back on the Anita Domino and was taken to shore. He radioed the captain about the incident and the pain he was in. He was met at the dock by Warren McKinney, who took plaintiff to a Baton Rouge hospital where he was treated and released. Although his shoulder was his main concern initially, plaintiff subsequently developed numbness in the leg and low back pain on his left side which continued to worsen. He called the company and was sent to a clinic to see Dr. Schiavi. Subsequently, plaintiff returned to Dr. Kenneth Adatto, who had previously performed surgery on his wrist and treated him for ruptured discs in his back. For the new injury Dr. Adatto recommended conservative treatment, as he had with the first injury. However, about three years after the second injury plaintiff required back surgery.

Plaintiff acknowledged that he injured his back in December of 1992, while in the employ of DRD Towing, and was pursuing a claim for social security disability benefits when he applied for the job with McKinney. He further stated that he understood the requirements of the job of deckhand as outlined in the McKinney job description. He admitted that he answered "no" to the question on the original application form from his first employment with McKinney in 1988 that asked "(d)o you now or have you ever suffered from back injuries, strains, fractures or disc injuries?" He knew the same question would be asked in 1995 when he re-applied for the same job.

Plaintiff stated that in 1989 when he left McKinney, he considered himself to be an experienced deckhand. He left the job because he was tired of the life style. Subsequently, he took a position with C & D Towing in which he worked daily shifts at the grain elevator, and did not have to stay on the boat for fourteen days straight. At the same time; he was also employed with Progressive Barge Line (Progressive) as a deckhand. He indicated the two companies were connected through family ownership, but the actual relationship is not certain from the testimony.

Plaintiff stated that he pulled a muscle in his right shoulder in 1990 while lifting wires on a rigging. In 1990 he left C & D Towing and Progressive, and went to work for DRD Towing. On December 28, 1992, he slipped and fell on his back while working on a ramp, injuring his wrist, back and neck. As a result of the injury, he was treated by Dr. Adatto from January, 1993 to August, 1994. Dr. Adatto performed surgery to repair a broken bone in plaintiff's wrist as a result of the fall. Dr. Adatto also treated him for his lower back injury, which consisted of two ruptured discs at L4-5.

Part of Dr. Adatto's records were read into the record. He stated that:

... the assessment is that he had a lumbar hernia, HNP, herniated nucleus pulposus ....we discussed the risk of surgery versus non-surgery and he was given the opportunity to ask questions. I advised him that the disability would be the same with or without surgery. Surgery is only indicated when you get to the point you can't live with the pain. There is a chance of paralysis with or without surgery. Living with the disc in will not kill or cause cancer, only pain. Eighty percent of the people learn to live with the pain. Twenty percent end up needing surgery. Of that twenty percent, eighty percent do well, twenty percent still have some trouble and ten percent have to go back a second time. We further discussed the risk of surgery including death, paralysis, scaring, loss of bowel and bladder function, etc....

When questioned about that conversation with Dr. Adatto, plaintiff said he did not recall discussing back surgery. However, in his deposition he recalled the conversation and said he decided not to have the surgery because he became frightened by the risks involved.

A second part of Dr. Adatto's record was also read into the record, which detailed plaintiff's medical restrictions as follows:

He understands that he has a total permanent spinal disability whether he has surgery or not. He needs to avoid competitive stooping, bending or lifting objects over fifty pounds as well as prolonged standing or sitting in the same position without being able to move around and change positions.

Plaintiff stated that he did not recall that warning. Again plaintiff was impeached on this answer by his prior deposition, and he admitted he recalled Dr. Adatto discussing lighter work. In further questioning, plaintiff admitte...