Masinter v. Tenneco Oil Co., 87-3638
| Decision Date | 16 March 1989 |
| Docket Number | No. 87-3638,87-3638 |
| Citation | 867 F.2d 892 |
| Parties | David MASINTER, Plaintiff-Appellee, Cross-Appellant, v. TENNECO OIL CO., et al., Defendants-Appellees, Marlin Drilling Co., Inc., Defendant-Appellant, Cross-Appellee, and Liberty Mutual Insurance Company, Intervenor-Cross-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Edward J. Koehl, Jr., Thurl Stalnaker, Jr., New Orleans, La., appellant.
John K. Leach, New Orleans, La., for Liberty Mut. Ins. Co.
Robert L. Hackett, Obstreicher, Whalen & Hackett, New Orleans, La., for Masinter.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before THORNBERRY, KING, and JONES, Circuit Judges.
Appellee/cross-appellant David Masinter brought this suit against appellant/cross-appellee Marlin Drilling Co., Inc. (Marlin) to recover damages for injuries sustained while working aboard a jack-up rig owned by Marlin. The district court found Marlin 60% negligent and Masinter 40% contributorily negligent and entered judgment for Masinter. On appeal, each party asserts its own absence of negligence and challenges the district court's calculation of damages. Masinter also contends that the district court erred in reimbursing appellee Liberty Mutual Insurance Company (Liberty Mutual) for worker's compensation benefits it paid to Masinter. For the reasons discussed below, we affirm in part, vacate in part, and, subject to Masinter opting for a new trial to determine his future wage loss, render judgment for Masinter. We also affirm the judgment for Liberty Mutual in accordance with our analysis.
Prior to sustaining the injuries complained of in the present lawsuit, David Masinter worked as a sales/service representative supervising the installation of products sold by his employer Hydril, Inc. (Hydril). In late December of 1984, Hydril transported Masinter to the Marlin IV, a jack-up rig located in the Gulf of Mexico, to oversee the installation of a supply of completion tubing sold to Tenneco, Inc. (Tenneco). Pursuant to a contract, Marlin furnished Tenneco with the Marlin IV and crews to conduct the drilling operations.
Masinter's task aboard the Marlin IV required him to move between the drill floor and the pipe rack deck below the drill floor. The two levels were connected by a moveable stairway which had been placed in position by Marlin. The top of the stairway was hinged to the drilling floor and therefore moved as the floor was pivoted into proper position above the well. Once the drilling floor was properly located, the bottom of the stairway was lowered onto the pipe rack deck. In this case, when the stairway was lowered, the bottom sides of the stairway landed on an "I" beam rather than on the deck itself. The "I" beam was approximately eleven inches high, and the distance between each tread (step) of the stairway was about one foot. Since the bottom sides of the stairway rested on the eleven inch high beam, a distance of two feet between the last step and the deck was created. Had the stairway been positioned properly on the pipe rack deck, the distance between the last step and the deck would have been one foot.
In using the stairway, workers also had to negotiate a two and one-half foot wide by two inch high steel support plate which extended across the pipe rack floor near the base of the stairway. Because of plate's two inch thickness, its edges were beveled to reduce the possibility that one might stumble over it while maneuvering about the lower deck. The plate's right edge ran perpendicular to the stairway treads in such a manner that, as one descended the stairs, one's left foot would step on the beveled seam.
At 3:00 a.m. on December 28, after working an 18 to 20 hour shift, Masinter descended this stairway as he had done at least a dozen times. When he reached the lower level, he stepped on the beveled seam and severely twisted his right ankle. As a result of this incident, Masinter has undergone two surgeries and currently suffers a 20% physical disability.
Based on this injury, Masinter brought the present lawsuit against Tenneco, Marlin, and the rig manufacturer Bethlehem Steel Corporation (Bethlehem) asserting claims under the Jones Act, 46 U.S.C.App. Sec. 688 (1982), general maritime law, and Sec. 5(b) of the Longshore and Harbor Worker's Compensation Act (LHWCA), 33 U.S.C. Secs. 901 et seq. Liberty Mutual intervened seeking to recover compensation benefits it paid to or on behalf of Masinter. Subsequently, the claims against Tenneco and Bethlehem were dismissed with prejudice; Masinter also withdrew his claim based on Sec. 5(b) of the LHCWA. Prior to the non-jury trial, the district court granted Marlin's motion for summary judgment dismissing Masinter's Jones Act claim for lack of seaman status. In a unrelated summary judgment motion, the court determined that Masinter was not a longshoreman.
At trial, only Masinter's claim against Marlin based on general maritime law remained. In its original findings of fact, the district court concluded that Masinter's injuries were caused by the inordinate distance between the stairway's last tread and the deck and by the fact that Masinter stepped on the beveled seam. Inadequate lighting and the presence of a slippery drilling fluid on the deck floor were also found to have contributed to the accident. The court expressly noted that "both the location of the beveled edge of the [steel plate] and the location of the base of the stairs ... were open and obvious to the plaintiff...." The court held that Marlin had not exercised reasonable care toward Masinter but that the award would be reduced by forty percent to reflect Masinter's contributory negligence. The court also held that, pursuant to the application of the LHWCA through provisions of the Outer Continental Shelf Lands Act (OCSLA), Liberty Mutual, as the compensation carrier for Hydril, was entitled to recover the amount it had paid Masinter out of any judgment rendered in Masinter's favor.
Pursuant to Rule 59 of the Federal Rules of Civil Procedure, Marlin filed a motion for new trial or alternatively to amend the judgment. Marlin argued that it had no duty to warn Masinter of an open and obvious defect and therefore could not have been found negligent. Marlin also contended that, given Masinter's work experience and educational background, damages should not have been calculated using the assumption that Masinter would only be able to procure future work at minimum wage. In response to this motion and Masinter's memorandum opposing the motion, the district court issued an opinion amending his initial oral findings of fact and conclusions of law.
It is noteworthy that the opinion deleted the prior statement that the defects were open and obvious to Masinter. The court's amended finding also revealed that the inadequate lighting and drilling fluid "contributed heavily" to the accident. The court held that
Defendant is correct in stating that it has no legal duty to warn plaintiff of any hazard which is open and obvious. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406 (1959); Wiles v. Delta Steamship Lines, Inc., 1976 AMC 2646 (E.D.La.1976). However, the court does not agree with defendant's argument that since it was found that the uneven nature of the stairs were known to plaintiff, this precludes any duty to warn. The fact that the physical condition of the stairway was known by plaintiff goes to the element of his contributory negligence. However, it does not absolve defendant of his duty to warn because the Court also found that the lighting on the stairs was poor and insufficient for safe passage and that there was drilling fluid on the surface where plaintiff slipped. The Court therefore feels that there was no error in finding that defendant had breached its duty of care to plaintiff.
Based on this statement and the court's continued belief that Masinter would only be able to find employment at minimum wage, the court entered judgment in the amount of $208,828.80 for Masinter. On appeal, Marlin renews its arguments that it had no duty to warn of an open and obvious danger or, alternatively, that the award was excessive. Masinter cross-appeals contending that the district court erred in finding him 40% contributorily negligent. Masinter also challenges Liberty Mutual's right to recover benefits under the provisions of the LHCWA when the court had previously ruled that he was not a longshoreman.
The district court's finding of negligence was based on a breach of the general maritime duty of care first enunciated in Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959). At trial and in the appellate briefs, all parties conceded that the Kermarec standard governed the present dispute. Approximately two weeks before oral argument, Marlin's counsel notified the court, pursuant to Rule 28(j) of the Federal Rules of Appellate Procedure, that Sec. 5(b) of the LHWCA provided Masinter's exclusive claim and that principles of general maritime law should have no application in the present context. We agree, however, that the district court applied the wrong law is not necessarily fatal to our ability to review the judgment. As we have noted in the past, "[w]hen the judgment of the district court is correct, it may be affirmed on appeal for reasons other than those asserted or relied on below." Terrell v. University of Texas System Police, 792 F.2d 1360, 1362 n. 3 (5th Cir.1986), cert. denied, 479 U.S. 1064, 107 S.Ct. 948, 93 L.Ed.2d 997 (1987).
The conclusion that Sec. 5(b) of the LHCWA provides Masinter's exclusive remedy against the vessel owner emerges as follows: It is undisputed that Masinter, a non-seaman, non-longshoreman, was working aboard the Marlin IV, a vessel. Although...
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