Neal v. Barisich, Inc.

• Decision Date: 28 February 1989
• Docket Number: Civil A. No. 88-3119.
• Citation: 707 F. Supp. 862
• Parties: Donald NEAL Sr., individually and on behalf of the estate of his deceased son, Donald Neal Jr., and individually and as the personal representative of the estate of Donald Neal Jr., Plaintiff, and Stella Neal Gill, Plaintiff-Intervenor, v. BARISICH, INC.; George A. Barisich; Sea Container Services, Ltd.; Boxer 3, Limited; Britannia Steamship Insurance Ass'n, Inc.; Charles F. Arnoult; and The Board of River Boat Pilot Commissioners, Defendants.
• Court: U.S. District Court — Eastern District of Louisiana

707 F. Supp. 862

Donald NEAL Sr., individually and on behalf of the estate of his deceased son, Donald Neal Jr., and individually and as the personal representative of the estate of Donald Neal Jr., Plaintiff and Stella Neal Gill, Plaintiff-Intervenor, v. BARISICH, INC.; George A. Barisich; Sea Container Services, Ltd.; Boxer 3, Limited; Britannia Steamship Insurance Ass'n, Inc.; Charles F. Arnoult; and The Board of River Boat Pilot Commissioners, Defendants.

Civil A. No. 88-3119.

United States District Court, E.D. Louisiana.

February 28, 1989.

COPYRIGHT MATERIAL OMITTED

Pamela P. Rask, New Orleans, La., for Donald Neal, Sr.

Fernandez & Selig, Richard J. Fernandez, Trial Atty., Louis P. Selig, Metairie, La., for Stella Neal Gill.

Gelpi, Sullivan, Carroll & Laborde, Gerard T. Gelpi, Trial Atty., Charles A. Cerise, Jr., New Orleans, La., for Sea Containers Services Ltd., Boxer 3, Ltd., Britannia Steamship Ins. Ass'n, Inc.

Chaffe, McCall, Phillips, Toler & Sarpy, J. Dwight LeBlanc, Jr., Trial Atty., New Orleans, La., for Charles F. Arnoult.

Badeaux & Discon, Thomas M. Discon, Trial Atty., John G. Discon, Metairie, La., for Barisich, Inc., George A. Barisich.

ORDER AND REASONS

PATRICK E. CARR, District Judge.

This matter came before the Court on February 22, 1989 for hearing on motion of all defendants for summary judgment. The Court took the matter under submission. For the following reasons, the Court now GRANTS IN PART AND DENIES IN PART the motion.

I.

On November 22, 1987, two vessels collided in the Mississippi River Gulf Outlet Canal. Donald Neal Jr. was a crewmember on one of the vessels and could not be located shortly after the collision. His body was later found in the canal. Plaintiffs allege that he was thrown overboard and drowned from the collision, but admit that no one saw him go overboard or drown.

Plaintiffs are Donald Jr.'s parents, Donald Neal Sr. and Stella Neal Gill. Donald Sr. asserts his claims individually and as the personal representative for his son's estate; Stella has intervened as a plaintiff to assert her claims individually.¹ Plaintiffs each assert three claims: one of general maritime negligence against all the defendants (the vessel owners, the insurer of one of the vessels, the river pilot on that vessel, and the Board of River Boat Pilot Commissioners),² and one of unseaworthiness and one of Jones Act negligence against Donald Jr.'s employers, who were also the owners of the vessel on which he had been working. Plaintiffs seek a survival award for Donald Jr.'s pre-death pain and suffering as well as a wrongful death award for pecuniary damages (viz., burial expenses, loss of support, and loss of services) and non-pecuniary damages (viz., loss of society); on the unseaworthiness claim, they also seek a punitive damage award.

Donald Jr., who was 19 years old when he died, had never had any children and had never been married. The St. Bernard Parish Coroner's death certificate lists "asphyxiation due to drowning" as the cause of death; it lists the date and time of injury as November 22, 1987 at 6:30 a.m. and lists the date and time of death as December 1, 1987 at 12:30 p.m. The present record has no other evidence indicating the extent of time, if any, after the collision that Donald Jr. remained conscious or even alive.

Donald Jr.'s parents have been divorced for many years; at the time of the divorce, Donald Jr. and his father remained in Louisiana, while his mother moved to Mississippi, where she still lives.

After the divorce, Donald Jr. never resided with his mother. She never received any money from him and was not otherwise financially dependent upon him in any way. The last visit Donald Jr. had at his mother's was a stay of two-to-four weeks in the summer of either 1984 or 1985. Donald Jr. performed no services or work for his mother after that visit.

Donald Sr. never received any money, "food or anything" from Donald Jr. and admits "that he has not received any past or present support from" his son; in fact, Donald Sr. claimed his son as a dependent on his 1987 tax return. Donald Sr. testified that he paid for his son's funeral and burial expenses, but the record does not reveal what these amounts were.³ The death certificate lists the same address for Donald Jr. and Donald Sr. According to his father, Donald Jr. would at times "give his father a hand with" his father's occasional weekend job of setting up fences, for which work his father would pay him "a few dollars." Further, according to his father, Donald Jr. "went out" on weekends with his father on his father's fishing boat, but had not done so for about a year before his death; the record does not reveal what, if anything, Donald Jr. would do on these weekend trips.

At oral argument, both plaintiffs' counsel conceded that it would be mere speculation whether Donald Jr. would have contributed any money to either of his parents in the future, had he lived.

While conceding for these purposes the issue of liability, all defendants now move for summary judgment on the ground that plaintiffs have no evidence to support any damages under the applicable law.

II.

Below, the Court addresses each of the damages the parents seek.

A. Recovery under Louisiana law

Both plaintiffs assert that they may recover not only those damages allowable under general maritime law and the Jones Act, but also those allowable under Louisiana's survival and wrongful death statutes.⁴ The law is well-established that "the uniform `common law' of admiralty displaces state wrongful death statutes in territorial waters."⁵ The same rule applies for state survival statutes.⁶ Thus, the Court must dismiss all claims under Louisiana state law; plaintiffs may only look to admiralty law.⁷

B. Pre-death pain and suffering

These damages are considered pecuniary damages,⁸ recoverable as survival damages to the decedent's estate under both the Jones Act and general maritime law.⁹ While "the pain and suffering of a drowning seaman is a compensable injury, ... there must be evidence supporting a finding that the decedent was conscious when drowned."¹⁰ Without such evidence, no such damages may be awarded.¹¹

In this case, however, there is no evidence that decedent had any conscious pre-death pain and suffering. Despite plaintiffs' contentions to the contrary, the death certificate alone does not create an inference of conscious pre-death pain and suffering;¹² in opposing summary judgment, plaintiffs may not rely on conjecture and bald statements that someone may be able to testify that Donald Jr. was conscious for a period between the collision and his ultimate death. Because plaintiffs have the burden to produce evidence of a genuine dispute but have not done so,¹³ the Court must dismiss these claims.

C. Funeral and burial expenses

Funeral and burial expenses are recoverable under general maritime law (although it appears unclear at present whether they are recoverable as survival damages to a decedent's estate or instead as wrongful death damages to his survivors).¹⁴ These expenses are also recoverable under the Jones Act.¹⁵

While the record does not reveal the amount of any funeral expenses, the father stated in his deposition that he paid for these expenses and thus there is a genuine dispute so as to prevent summary judgment on this one, narrow issue. Thus, the Court may not dismiss the father's funeral expense claim at this time.

D. Loss of support and services

General maritime law permits survivors to recover pecuniary damages for loss of support¹⁶ and for loss of household services.¹⁷ The Jones Act permits beneficiaries thereunder to recover the same pecuniary damages.¹⁸

Both plaintiffs concede that they were in no way financially dependent on the decedent and that they never received any money from him. Further, they concede that it would be mere speculation whether the decedent might have given either of them financial support in the future, had he lived. An award for damages, however, "cannot stand when the only evidence to support it is speculative or purely conjectural."¹⁹ Thus, the Court must dismiss all claims for loss of support.

The decedent's mother testified that he had not performed any services for her since at least the summer of 1985. Again, it would be mere conjecture to presume that the decedent, had he lived, might have decided to start performing other services for her in the future. Thus, the Court must dismiss her claim for loss of services.

The decedent's father fares no better on his claims for loss of services. While the decedent apparently did intermittent weekend work for his father, his father paid him for that work. Thus, the father has suffered no monetary loss for any such future work the decedent might have done, and monetary (or pecuniary) loss is of course the touchstone for this element of damages; to hold otherwise would mean that in every wrongful death case, a decedent's employer would be able to assert claims for loss of its employee — the standard for measuring these damages, albeit already imprecise, would become meaningless. Nor does the testimony concerning the father and son's boat rides save the father's claim. First, the father admitted that the decedent had not gone on such a boat ride for over a year (again, it would be conjecture to presume when and how often the decedent would have gone riding with his father in the future). Second, the record is silent on indicating that the decedent performed any services for his father on the boat — that these boat rides were anything but weekend pleasure cruises. Thus, the Court must dismiss the father's claim for loss of services.

E. Loss of inheritance

Loss of inheritance is a pecuniary loss recoverable under both DOHSA²⁰ and FELA.²¹ The Fifth Circuit has not directly addressed the issue of whether loss of inheritance is recoverable under either the Jones Act or general maritime law. Because this element of damages is not...