Schexnider v. McDermott Intern., Inc., 88-4667

• Decision Date: 16 March 1989
• Docket Number: No. 88-4667,88-4667
• Citation: 868 F.2d 717
• Parties: John A. SCHEXNIDER and Allison Schexnider, Plaintiffs-Appellants, v. McDERMOTT INTERNATIONAL, INC., et al., Defendants-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 717

868 F.2d 717

John A. SCHEXNIDER and Allison Schexnider, Plaintiffs-Appellants, v. McDERMOTT INTERNATIONAL, INC., et al., Defendants-Appellees.

No. 88-4667

Summary Calendar.

United States Court of Appeals Fifth Circuit.

March 16, 1989.

Rehearing Denied April 11, 1989.

Joseph J. Weigand, Jr., Weigand, Weigand & Meyer, Houma, La., for plaintiffs-appellants.

James B. Doyle, Edmund E. Woodley, Woodley, Williams, Fenet, Palmer, Doyle & Norman, Lake Charles, La., for defendants-appellees.

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

Before POLITZ, KING and SMITH, Circuit Judges.

PER CURIAM:

This appeal is the second time that the parties have appeared before this court. In their first visit, see Schexnider v. McDermott Int'l, Inc., 817 F.2d 1159 (5th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 488, 98 L.Ed.2d 486 (1987), John A. Schexnider ("Schexnider") appealed from the district court's dismissal of his suit against McDermott International, Inc., a Panama corporation, and McDermott, Inc. on forum non conveniens grounds. Schexnider was partly successful, and we reversed the district court's dismissal of his suit. We affirmed, however, the district court's determination that Australian law governed Schexnider's action and remanded the case to the district court for trial. ¹ Following a bench trial, the district court entered judgment in favor of the defendants.

Schexnider appeals, arguing that the district court's findings of fact are clearly erroneous and that the district court should not have applied Australian law. Addressing the latter argument first, our earlier decision concerning this case decided the question of what law was to be applied at trial. The decision of a legal issue by an appellate court establishes the "law of the case" and must be followed in all subsequent proceedings in the same case at both the trial and appellate levels unless the evidence at a subsequent trial was substantially different, the controlling authority has since made a contrary decision of law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice. See White v. Murtha, 377 F.2d 428, 431-32 (5th Cir.1967). In support of his argument that the district court erred in applying Australian law, Schexnider cites no reason that was not fully considered by the panel that directed the district court to apply Australian law. We have, therefore, no basis for reversing the district court in its decision to apply Australian law. ²

We turn next to Schexnider's argument that the district court was clearly erroneous in its findings of fact relating to Schexnider's accident. Schexnider's complaint alleges that on April 12, 1981, he slipped in grease or hydraulic fluid that had been allowed to accumulate on a step of a stairway on the Derrick Barge 21 (the "barge"), on which he was employed as a storeman. At trial, the substance of Schexnider's testimony was that both the accumulated grease or hydraulic fluid and the dented treads in the center of the stairs ³ caused his accident. The district court's opinion carefully reviewed Schexnider's testimony, as well as the testimony of various other witnesses to the accident itself and to the respective conditions of the barge generally and the stairway specifically. The district court found that Schexnider's method of descending the stairs--slowly, deliberately, and one stair at a time while holding the rail--was the safest method of forward descent and would minimize any possibility that the angle of the stairs and the slight indentations which existed in the treads would have caused his fall. The district court concluded that:

The court is not persuaded that any condition of the stairs or any other appurtenance of the vessel contributed to the plaintiff's accident. Nor is the court persuaded that any foreign substance was on the stairs or played a part in causing the fall. The cause of the fall remains a puzzlement, as the court cannot discern how, after both of the plaintiff's feet were on the top step and he was, for a split second, stopped, his right foot came to fly out from under him when he stepped off with his left. The plaintiff bore the burden of proof in this action, and he has not sustained it. The court finds that no fault or condition...