Moczygemba v. Danos & Curole Marine Contractors, Inc.

• Decision Date: 26 October 1977
• Docket Number: No. 75-3173,75-3173
• Parties: Mrs. Gwendolyn L. MOCZYGEMBA et al., Plaintiffs, Miss Vickie Leonard, Plaintiff-Appellant, v. DANOS AND CUROLE MARINE CONTRACTORS, INC., Defendant, Gulf Oil Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1149

561 F.2d 1149

Mrs. Gwendolyn L. MOCZYGEMBA et al., Plaintiffs, Miss Vickie Leonard, Plaintiff-Appellant, v. DANOS AND CUROLE MARINE CONTRACTORS, INC., Defendant, Gulf Oil Corporation, Defendant-Appellee.

No. 75-3173.

United States Court of Appeals, Fifth Circuit.

Oct. 26, 1977.

Harold J. Lamy, New Orleans, La., for plaintiff-appellant.

Joseph J. Weigand, Jr., Houma, La., for Gulf Oil and Danos & Curole Marine Contractors.

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

Before GEWIN, RONEY and HILL, Circuit Judges.

JAMES C. HILL, Circuit Judge:

This case comes on appeal from a final judgment entered on a jury verdict by the United States District Court for the Eastern District of Louisiana. Miss Vickie Leonard, Plaintiff-Appellant ("Plaintiff"), brought an action against Defendants Danos and Curole Marine Contractors, Inc. and the Gulf Oil Corporation requesting payment for damages resulting from her father's death.

On January 1, 1972, Plaintiff's Decedent, Leander Leonard ("Decedent"), was employed by Danos and Curole Marine Contractors, Inc. as a gang-pusher and crane operator aboard a Gulf Oil Corporation stationary platform in the Gulf of Mexico. He was killed when the crane he was operating was pulled off its pedestals and fell over the side of the platform during an off-loading operation. Danos and Curole Marine Contractors, Inc. was dismissed from the action and the case was tried before a jury against Gulf Oil Corporation ("Defendant"). Plaintiff, as a major daughter of Decedent, requested damages for the conscious pain and suffering of her father prior to his death and loss of love and affection as a result of his death. La.Civ.Code Arts. 2315, 2316. She further claimed in her suit that under the Louisiana Civil Code, Article 2322 was the appropriate law to be applied to the case and alleged that Gulf Oil Corporation failed to properly maintain the crane. La.Civ.Code Art. 2322. In response to interrogatories submitted, the jury found that the Defendant was negligent and that its negligence was a proximate cause of the injury and death of Decedent. The jury also found that the Decedent was contributorily negligent and that his negligence was a proximate cause of the fatal accident. In accordance with the jury's verdict, a judgment was entered in favor of the Defendant and against Plaintiff.

On this appeal Plaintiff suggests three theories for reversal: (1) the trial court erred in failing to instruct the jury under Louisiana Civil Code, Article 2322 damage caused by ruin of building; (2) Decedent's mere contributory negligence, absent his prior full awareness of the defect is not a defense to "Ruin" under La.Civ.Code Art. 2322; (3) even if there were no errors in the trial court's instructions, Decedent's contributory negligence does not bar a survivor's claim for wrongful death against Defendant, a third party tortfeasor concurrently negligent. These three theories will be discussed in turn.

Applicability of Article 2322 and the Effect of Decedent's

Contributory Negligence.

While it is clear that the state law of Louisiana governs the tort action in this case, ¹ the relevant Louisiana law and its application to these facts are somewhat unclear. ²

Article 2322 of the Louisiana Civil Code provides:

The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it or when it is the result of a vice in its original construction.

Plaintiff urges on this appeal that the District Court erred in refusing to instruct the jury about Article 2322 and asks that the judgment be reversed and the case remanded for a new trial. We hold that, even assuming this omission to be error, it does not require reversal since the jury found the Decedent guilty of contributory negligence.

The existence of a "building" and its "ruin" are the threshold requirements of Article 2322. The Courts of Louisiana have interpreted Article 2322 broadly as encompassing necessary appurtenances to structures and to movables made immovable by attachment. ³ The inherent requirement is that there be a structure of some permanence. Mudd v. Travelers Indemnity Co., 309 So.2d 297 (La.1975). Also, it is not necessary that the permanent structure be intended for habitation for it to be considered a "building" under Article 2322. Cothern v. La Rocca, 255 La. 673, 232 So.2d 473 (1970). The application of the "appurtenance doctrine" depends upon the nature of the attachment and the relationship to the premises. ⁴ The crane in the case on appeal was welded to the deck of the platform and was used in ongoing operations. Thus it appears that the "appurtenance doctrine" applies. The crane was appurtenant to the platform. And, a fixed offshore drilling platform is considered a building for purposes of Article 2322. McIlwain v. Placid Oil Co., 472 F.2d 248 (5th Cir.), cert. denied, 412 U.S. 923, 93 S.Ct. 2734, 37 L.Ed.2d 150 (1973), citing, Vinton Petroleum Co. v. L. Seiss Oil Syndicate, Inc., 19 La.App. 179, 139 So. 543 (Ct. of App. 1932). Once the "building" criterion is met, in order for liability to attach under Article 2322 the damage complained of must have been caused by "ruin." "Ruin" for purposes of Article 2322 means the fall or collapse of a substantial component of the structure resulting from a "neglect to repair." La.Civ.Code Art. 2322. ⁵ Under Louisiana law the owner, here Defendant, is not subject to liability without fault for all damages occasioned by a defective condition on the premises but only for damage occasioned by "ruin." ⁶

If the crane involved in the case on appeal is considered sufficiently appurtenant to the platform, which itself is considered a "building," the criteria for liability under Article 2322 seem to be satisfied. It is tragically obvious that there was a fall or collapse when the crane toppled into the Gulf of Mexico. And the crane is certainly a more significant portion of the platform than the grating which gave way in McIlwain v. Placid Oil Co., supra. The District Court's refusal to instruct the jury concerning liability under Article 2322 is somewhat puzzling, ⁷ especially since there was sufficient evidence on which the jury could and did find Defendant negligent as a proximate cause of the fatal accident.

However, even assuming that the District Court erred in failing to deliver the requested instruction, such an error was, at most, harmless to Plaintiff. In addition to finding the Defendant guilty of negligence that proximately caused Decedent's death, the jury found the Decedent guilty of contributory negligence that proximately caused his own death. Appendix at 129-30. Under Louisiana law, such contributory negligence would have been an absolute bar to Decedent's cause of action under Article 2322. Turner v. Aetna Casualty & Surety Co., 175 So.2d 304 (La.Ct. of App.), on rehearing, 175 So.2d 308, 309, writ ref., 247 La. 1094, 176 So.2d 147 (1965). See also Frank v. Suthon, 159 F. 174 (C.C.E.D.La.1908)- ; Krennerich v. WCG Inv. Corp., 278 So.2d 842 (La.Ct. of App. 1973); Murphy v. Fidelity and Casualty Co. of N. Y., 165 So.2d 497 (La.Ct. of App. 1964). Thus Plaintiff's survival action under La.Civ.Code Art. 2315 is barred; the cause of action which survives does not differ in any way from Decedent's. ⁸ Vitale v. Checker Cab Co., 166 La. 527, 117 So. 579 (1928); Foy v. Ed Taussig, Inc., 220 So.2d 229 (La.Ct. of App.), appeal denied, 254 La. 135, 139,222 So.2d 884, 885 (1969).

Therefore, even if the District Court had instructed the jury under Article 2322, Decedent's contributory negligence would have barred Plaintiff from recovery in the survived action. It thus appears that the error, if any, was harmless. 28 U.S.C.A. § 2111; Fed.R.Civ.P. 61. See Reichender v. Skaggs Drug Center, 421 F.2d 307 (5th Cir. 1970); Marlowe v. Garden Services, Inc., 411 F.2d 473 (5th Cir. 1969) (per curiam). See generally, 7 Moore, Fed. Practice P

61.09 (2d ed. 1948). The Effect of Decedent's Contributory

Negligence on the Cause of Action Under

La.Civ.Code Arts. 2315 and 2316.

Plaintiff's third theory for reversal is that, even assuming there were no errors in the District Court's instructions, the contributory negligence of a decedent no longer bars a Louisiana survivor's claim for wrongful death against a third party tortfeasor concurrently negligent.

Under Louisiana law, if Article 2322 "ruin" does not apply, and if the fatal injury complained of is to a person lawfully on the premises resulting from a dangerous condition which the owner has permitted to exist, then the appropriate basis for decision is Articles 2315 and 2316. ⁹ Weiland v. King, 281 So.2d 688 (La.1973); Davis v. Royal Globe Ins. Co., supra. Under Articles 2315 and 2316, Plaintiff's wrongful death action is barred by Decedent's contributory negligence. This has been ¹⁰ and continues to be the rule of law applicable in Louisiana. Vitale v. Checker Cab Co., supra. See also Troxlair v. Ill. Cent. R. Co., 291 So.2d 797 (La.Ct. of App.), writ denied, La., 294 So.2d 834 (1974). There is nothing in the recent Louisiana Supreme Court cases that has the effect of overruling Vitale v. Checker Cab Co., supra ¹¹. See Hudgins v. Travelers Ins. Co., et al., 336 So.2d 280 (La.Ct. of App. 1976).

After careful and thorough review of the case on appeal, we find that the judgment of the District Court must be

AFFIRMED.

1 Under the Lands Act, federal law, supplemented by the law of the adjacent state not inconsistent with federal law is to be applied to artificial islands such as the platform in this case. Outer Continental Shelf Lands Act, 43 U.S.C.A. § 1331 et seq. (1953). Rodrique et al. v. Aetna Casualty & Surety Co. et al., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1968).

2 The issue of liability under Article 2322 has troubled this court before. See Arcement, et al. v. Southern Pacific Transportation Co., 517 F.2d 729, 732 (5th Cir. 1975).

3 See...