Tolson v. Omega Protein, Inc., No. 07-1296 (La. App. 4/2/2008)
| Decision Date | 02 April 2008 |
| Docket Number | No. 07-1296.,07-1296. |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | HAROLD TOLSON v. OMEGA PROTEIN, INC. |
APPEAL FROM THE THIRTY-EIGHTH JUDICIAL DISTRICT COURT, PARISH OF CAMERON, No. 10-16445, HONORABLE H. WARD FONTENOT, DISTRICT JUDGE.
JENNIFER JONES, Jones Law Firm, Counsel for Plantiff/Appellant: Harold Tolson.
ALAN K. BREAUD, TIMOTHY W. BASDEN, Breaud & Meyers, Counsel for Defendant/Appellee: Omega Protein, Inc.
Court composed of PETERS, PICKETT and EZELL, Judges.
The plaintiff in this offshore lawsuit, Harold Tolson, appeals the trial court judgment rendered in favor of the defendant, Omega Protein, Inc., dismissing his claim for general and special damages he sustained in a slip and fall accident aboard the F/V Oyster Bayou off the Louisiana coast. Omega Protein, Inc. also appeals the judgment, asserting that the trial court erred in its judgment awarding maintenance and cure benefits. For the following reasons, we affirm the trial court judgment in all respects.
This litigation arises from an accident which occurred on May 30, 2002, in the Gulf of Mexico off the coast of Cameron Parish, Louisiana, onboard the F/V Oyster Bayou, a menhaden fishing vessel owned and operated by Omega Protein, Inc. (Omega). On that day, the vessel was involved in a commercial fishing operation that consisted of locating schools of fish, launching two small boats known as purse boats, surrounding and netting the schools by use of the purse boats, and transferring the catch to the F/V Oyster Bayou. Mr. Tolson worked on one of the purse boats as a "bunt pile man." He described his duties at trial as unhooking his particular purse boat from the F/V Oyster Bayou and allowing it to slide into the water, spreading and threading the nets as they ran through the power blocks controlling their release into the water, and reversing the process as the nets were pulled through the power blocks back into the purse boat.
By mid-morning of May 30, 2002, the crew of the F/V Oyster Bayou had completed one fishing operation. While awaiting the signal that another school of fish had been located, Mr. Tolson and some of the other crew members went to the galley to get something to eat. Most of those going into the galley did not bother to remove the slicker suits1 they had been wearing during the fishing operation, and all were wearing their company-issued rubber boots.2 When the signal sounded announcing the next fishing operation, Mr. Tolson and the crew in the galley proceeded on deck toward the purse boats. Mr. Tolson was the last to exit the galley. As he moved toward the galley exit, he slipped and fell, injuring his ankle.
On February 23, 2004, Mr. Tolson filed the instant action against Omega, asserting a claim under the Jones Act, 46 U.S.C. § 688; a claim in general maritime law under the doctrine of unseaworthiness; and a claim for maintenance and cure benefits. With regard to the particulars of the accident itself, Mr. Tolson asserted in his petition that the design of the galley floor, coupled with the presence of slippery substances on that floor, created "an unreasonably dangerous condition for seamen," thereby rendering the F/V Oyster Bayou unseaworthy. He further asserted that Omega was negligent in failing to provide him, a Jones Act seaman, with a reasonably safe place to work. With regard to his injuries, Mr. Tolson asserted that Omega negligently required him to continue to perform his full duties prior to his recovery, and that this action worsened his condition and caused an increase in his pain and suffering. Concerning his maintenance and cure claim, Mr. Tolson asserted that it was not until November of 2002, or five to six months after the accident, that Omega provided him with the surgery recommended by his treating physicians. Thus, he claimed that because of the arbitrary and capricious nature of the failure to provide maintenance, he is entitled to attorney fees. Trial on the merits occurred on February 22, 2006. After completion of the evidentiary portion of the trial, the trial court took the issues under advisement. Thereafter, the trial court rendered reasons for judgment3 wherein it rejected Mr. Tolson's liability claims but awarded him maintenance benefits in the amount of $30.00 per day from November 8, 2002, until he reached maximum medical improvement. As previously stated, both parties have appealed.
In his appeal, Mr. Tolson raises three assignments of error:
1. The trial court's ruling that the F/V Oyster Bayou was not unseaworthy is clearly erroneous.
2. The trial court's ruling that Defendant Omega Protein, Inc. was not negligent is clearly erroneous.
3. The trial court's denial of Plaintiff's request for attorney's fees is clearly erroneous.
In its appeal, Omega raises two assignments of error:
1. The trial court erred when it ruled in its Judgment of July 31, 2006 that Harold Tolson had not reached maximum medical improvement and that Omega Protein had a continuing obligation to pay maintenance and cure following the pretrial deposition of Dr. Clark Gunderson on February 2, 2006.
2. The trial court erred when it ordered in its Judgment of February 8, 2007 that maintenance should have been paid to Tolson at a rate of $30.00 per day.
OPINIONMr. Tolson claims a right of recovery under two theories of general liability: unseaworthiness and negligence. In his first two assignments of error, Mr. Tolson asserts that the trial court erred in concluding that the F/V Oyster Bayou was not unseaworthy, and that the trial court erred in concluding that Omega was not negligent in causing his accident.
Jones Act negligence and unseaworthiness are two separate and distinct claims. Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 91 S.Ct. 514 (1971). The owner of a vessel has an absolute duty to furnish a seaworthy vessel, and breach of that duty gives rise to a claim for general damages. Vendetto v. Sonat Offshore Drilling Co., 97-3103 (La. 1/20/99), 725 So.2d 474, cert. denied, 527 U.S. 1023, 119 S.Ct. 2369 (1999). With regard to a claim based on unseaworthiness, our supreme court has stated the following:
A vessel is unseaworthy unless all of its appurtenances and crew are reasonably fit and safe for their intended purposes.
Our case law places a very high burden on a vessel owner to provide its crew with a seaworthy ship. This duty is absolute, non-delegable and completely independent of the Jones Act requirement to exercise reasonable care. To prevail on an unseaworthiness claim, a seaman must prove that the unseaworthy condition was the proximate cause of his injury.
An owner's absolute duty to provide a seaworthy vessel may not be delegated to anyone. Liability for an unseaworthy condition does not depend on negligence, fault or blame. Thus, if an owner does not provide a seaworthy vessel, then no amount of prudence will excuse him, whether he knew of or should have known of the unseaworthy condition. T.J. Schoenbaum, Admiralty and Maritime Law, Second Edition § 6-26 (1994).
Foster v. Destin Trading Corp., 96-803, p. 5 (La. 5/30/97), 700 So.2d 199, 202-03 (case citations omitted). Additionally,
Unseaworthiness results from a defective condition and is not the result of an isolated negligent act. Also, wear and tear which result in the deterioration of equipment may render a previously seaworthy vessel unseaworthy.
Id. at 204 (citations omitted).
The Jones Act allows an injured seaman to bring a negligence action against his employer. 46 U.S.C. § 688.4 Negligence may arise in many ways, including the failure to use reasonable care to provide a seaman with a safe place to work, the existence of a dangerous condition on or about the vessel, or any other breach of the owner's duty of care. 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 6-21, at 312 (2d ed. 1994). The duty of care owed by an employer under the Jones Act is that of ordinary prudence. That is to say, the employer has the duty to take reasonable care under the circumstances. Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 335-336 (5th Cir. 1997). Although the seaman bears the evidentiary burden of proving that a breach of the duty owed by the employer was a cause of his injuries, the Jones Act requires only that there be some evidence of negligence, however slight, which caused the plaintiff's injuries. Rannals v. Diamond Jo Casino, 265 F.3d 442 (6th Cir. 2001).
Although Mr. Tolson's accident was unwitnessed, the fact that an accident occurred is not in dispute. Mr. Tolson testified that as he moved toward the door to exit the galley, his foot suddenly came out from under him and he fell completely to the floor. According to Mr. Tolson, he was proceeding in an unhurried manner and was looking straight ahead. When he attempted to rise, he could not put any pressure on his ankle. He then opened the door to the galley, hopped out on one foot, and sat on the rail immediately outside the door.
When he failed to arrive at his appointed post on the purse boat, crew members began to look for him. They observed him leaning against the railing outside the galley. Some of the crew came to his assistance by helping him into the galley, where he propped up his foot and placed an ice pack on his ankle. The crew members then returned to the fishing operation. When the vessel returned to port that evening, Michael Lumbardo, Omega's personnel manager, met the ship and took Mr. Tolson to a physician in Sulphur, Louisiana.
The galley floor is constructed of steel, and slants downward from bow to stern at a rate of approximately two to two and one-half inches per foot.5 It is subject to a normal maintenance schedule during the fishing season, and is generally painted with a rustoleum paint in the off season.6 Although the floor surface is not considered to be a "non-slip" surface, the high foot traffic passing through the area renders the...
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