Nivens v. Signal Oil & Gas Co., Inc.

• Decision Date: 08 October 1975
• Docket Number: No. 74-2206,74-2206
• Citation: 520 F.2d 1019
• Parties: Albert L. NIVENS, Plaintiff-Appellee, v. SIGNAL OIL & GAS CO., INC., Defendant Third-Party Plaintiff-Appellant, LOUISIANA OFFSHORE CATERERS, INC., Third-Party Defendant-Appellee, Travelers Insurance Company, Intervenor-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1019

520 F.2d 1019

Albert L. NIVENS, Plaintiff-Appellee, v. SIGNAL OIL & GAS CO., INC., Defendant Third-Party Plaintiff-Appellant LOUISIANA OFFSHORE CATERERS, INC., Third-Party Defendant-Appellee Travelers Insurance Company, Intervenor-Appellant.

No. 74-2206.

United States Court of Appeals Fifth Circuit.

Oct. 8, 1975.

Geoffrey H. Longenecker, William A. Porteous, III, James J. Morse, Jr., New Orleans, La., for defendant third-party plaintiff-appellant.

Donald V. Organ, New Orleans, La., for Alfred Nivens.

Fred E. Salley, Edward J. Koehl, Jr., Donald L. King, New Orleans, La., for La. Offshore Caterers.

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

Before GODBOLD, Circuit Judge, SKELTON, Associate Judge, ^* and GEE, Circuit Judge.

GODBOLD, Circuit Judge:

On July 10, 1971, appellee Albert Nivens was working as a cook aboard the stationary platform of appellant Signal Oil & Gas Company on the continental shelf in the Gulf of Mexico. He was employed by third party-appellee Louisiana Offshore Caterers, Inc. Cabinet doors located in the galley above where Nivens was working were defective and would come open without warning. While Nivens was carrying out his duties he struck his head on the bottom corner of one of those doors which had come open. More than a year later, September 22, 1972, he filed suit against Signal for injuries allegedly resulting from this occurrence.

At trial the evidence showed that immediately upon impact it was revealed that Nivens had suffered injuries that appeared to be relatively minor in nature. Also, beginning a few days later and continuing for more than a year, he suffered manifestations of an abnormal condition that he did not consider to be related to the accident and that were not diagnosed by doctors as traumatic in origin but after the expiration of a year were found to be symptomatic of substantial injury.

The principal question raised on appeal is whether as a matter of law plaintiff's action was prescribed under Louisiana law, LSA-C.C. Art. 3537, which provides that the one year statute of limitations for tort actions begins running when the "damage (was) sustained." ¹ The court submitted to the jury Signal's defense of prescription, by this special interrogatory:

Did the plaintiff bring this suit within one year of the date he knew or, by the exercise of reasonable care, should have known that he had sustained damages resulting from the alleged accident?

to which the jury answered "Yes." The jury found for Nivens on the merits, and awarded $175,000 in damages. ² We conclude that as a matter of law Nivens' claim had prescribed, and the case is reversed.

The cabinet door struck Nivens between his eyes and above the bridge of the nose. Vidrine, his assistant, standing about two feet away, described the noise of the contact as loud and stated that Nivens hit himself "real hard" on the cabinet. Nivens variously described the impact as a "hard lick," a "bump," and as no more significant than mashing a finger. Nivens stepped or fell backwards and was caught by Vidrine. Long afterwards Nivens told one of his doctors that he was "momentarily dazed." He displayed anger over the occurrence and complained generally to his co-workers of the incident and of the pain it caused him. Vidrine described these complaints this way: "He said how his head hurt and how he hit it hard; how much it hurts."

Slight swelling and a red spot appeared at the point of impact immediately, although the skin was not broken. Nivens experienced immediate pain and headache which continued for three to four hours. Signal's superintendent on the job testified with respect to a time soon after the accident:

A. I was in the bunkhouse and Mr. Nivens came in the bunkhouse and he was very upset and he was holding his head and I asked what had happened. He walked on back to his bunkroom and sat down.

Q. He said what?

A. He just said he bumped his head at that time.

Q. Did he say what he bumped his head on or not?

A. Cabinet door.

Q. And what was he doing with his hand, if anything?

A. He was holding his forehead, rubbing his head.

The foregoing are the immediate consequences. Less immediately but at a time not specifically identified Nivens began complaining to Vidrine about "bad headaches," stating that his head "hurt a lot." Vidrine noticed a change in Nivens' demeanor. Contrary to his usual manner Nivens had no patience with the men he was feeding or with his co-workers. The superintendent described another occasion, not fixed as to time, when Nivens came into the bunkhouse and laid down with his hand over his head. The superintendent inquired what was the matter and Nivens complained of feeling unwell and dizzy.

Meanwhile, commencing within two days to a week after the accident, Nivens became subject to frequent, and at times heavy, drainage of clear fluid from his nose. The drainage was heaviest at night. Vidrine observed that Nivens' pillow was wet from the drainage. Vidrine's opinion was that the headaches and the heavy drainage evidenced by the wetting of the pillow were serious, and he advised Nivens to see a doctor.

Nivens described his general reaction this way:

The blow to my forehead caused a bump. It did not break the skin. It was painful but it did not cause me to loose (sic) any time from work or seek medical attention. I did not believe at that time that I received any serious injury from that blow.

At the time of the incident and for three months preceding Nivens had been under the care of Dr. Hagen for an inner ear disorder, one of the consequences of which was drainage of a yellowish discharge from one ear. Nivens complained to Dr. Hagen of the nasal drainage and even displayed to him a stained pillowcase evidencing its volume. In August Dr. Hagen referred Nivens to an allergy specialist who noted a prior history of prolonged and severe disease of the inner ear and with respect to the nasal drainage made a tentative diagnosis of allergy. This was not, however, substantiated by tests, and he began treatment directed at the inner ear condition. Nivens became dissatisfied and terminated this relationship in November but continued under the care of Dr. Hagen.

The slight swelling in the forehead remained, and during the year after the accident it became firm or "gristly" to the touch. A doctor who observed it slightly more than a year after the injury described it as "a firm small swelling in the middle of the forehead, approximately 1 cm. in diameter." It was still there at the time of trial.

In early June 1972 Dr. Hagen referred Nivens to another allergist. Nivens told this doctor that he considered his condition allergic. Tests, followed by a second test to be "double sure," were negative. Around June 12 the allergist told Nivens in positive and emphatic terms that he had no allergy and that he should dismiss allergy from his mind. ³

Finally, in late June or early July 1972, Nivens was referred to a group of nose specialists who in turn called in a neurosurgeon. Nivens was hospitalized in July to try to determine the etiology of the nasal discharge. Concerned that the place on his forehead and two other skin blemishes on his body might be malignant, Nivens mentioned them to the surgeon. When asked the source of the thickened skin he related the incident concerning the cabinet door. A prompt medical test quickly revealed that the fluid discharging through the nasal passages was spinal fluid draining into the nasal cavity through a hairline fracture in the base of the skull, 3/8 to 1/2 inch long. This diagnosis was made on or about July 18, and in any event after more than a year had elapsed. There is no substantial evidence suggesting that the fracture originated from a cause other than the impact with the door.

Surgery was performed July 31, primarily to cut off the route by which the fluid was draining because its presence threatened to permit the entrance of bacteria causing meningitis. The nasal drainage route was successfully closed. Suit was filed September 22. A second operation was later required to close off drainage through the place where the surgeon entered the skull.

Long after the surgery the neurosurgeon noticed adverse psychological symptoms, including anxiety, impaired memory and muscle tremors. He referred Nivens to a psychologist for testing. Both concluded that probably Nivens was suffering organic brain damage. The evidence is that the blow on the head and the subsequent corrective surgery could not have caused the kind of brain damage from which Nivens now suffers but could have enhanced a pre-existing brain disorder. As an unavoidable result of the brain surgery Nivens also suffered permanent loss of his sense of smell, and thus impairment of his sense of taste.

We agree with Signal that under the evidence, applying the standard of Boeing v. Shipman, 411 F.2d 365 (CA5, 1969, en banc), Nivens' claim had prescribed and the court should have granted Signal's motion for a directed verdict. ⁴ In R. J. Reynolds Tobacco Co. v. Hudson, 314 F.2d 776 (CA5, 1963), Judge Wisdom, a long-time practicing attorney in Louisiana, discussed for this court Louisiana principles concerning the commencement of prescription. He pointed out that the Code's focus is on when damage is "sustained" rather than the day of the act causing the damage, and that by judicial construction prescription runs from the time a plaintiff "knows or should know he has sustained damages." Reynolds held, in its factual context and as a logical and necessary extension of the foregoing principle, that to start the running of prescription plaintiff was required to have "knowledge of the relationship between the offense and damages sustained." Id. at 780.

In Lucas v. Commercial Union Insurance Co., 198 So.2d 560, 563-64 (La.App., 1967), the court discussed the triggering of prescription in varying situations:

With respect to actions for recovery for...