Vendetto v. Sonat Offshore Drilling Co.

• Decision Date: 20 January 1999
• Docket Number: No. 97-C-3103,97-C-3103
• Citation: 725 So.2d 474
• Parties: Joseph VENDETTO v. SONAT OFFSHORE DRILLING CO.
• Court: Louisiana Supreme Court

725 So.2d 474

Joseph VENDETTO v. SONAT OFFSHORE DRILLING CO.

No. 97-C-3103

Supreme Court of Louisiana.

January 20, 1999.

Timothy John Falcon, Stephen Michael Wiles, Mack E. Barham, Robert Elton Arceneaux, Barham & Arceneaux, New Orleans, Gail N. Wise, Travis L. Bourgeous, New Orleans, Counsel for Applicant.

Harry Alston Johnson, III, Shreveport, Phelps Dunbar, Timothy W. Cerniglia, Homer; Stephenson, Matthews & Chararri, New Orleans; Counsel for Respondent.

LEMMON, Justice.¹

This is an action to recover damages for personal injuries incurred by a seaman aboard a ship. Plaintiff seeks recovery under the Jones Act, based on the negligence of plaintiff's employer, and under the general maritime law, based on the unseaworthiness of defendant's vessel. The principal issue is the correctness of the holdings by the court of appeal that plaintiff failed to prove Jones Act negligence and that the trial court's finding of unseaworthiness was manifestly erroneous.

Facts

Plaintiff worked for six years for defendant drilling company as a seaman aboard the DISCOVERER 534, a drilling vessel owned and operated by defendant. He had previously worked for another employer for two years in a job that also required lifting and carrying of heavy objects.

On January 19, 1993, plaintiff, while working as a mechanic² on the DISCOVERER 534, was called up to assist with a Sonat automated maintenance (SAM) procedure.³ While plaintiff had assisted in two or three SAMs previously, this was the first time he was required to perform the task in any capacity other than as a helper.

Performance of the SAM required the lowering of tools and chain falls, weighing thirty to forty pounds, down into the thruster tunnel, a distance of about thirty feet. According to plaintiff, he learned the procedure by watching and assisting others in previous SAMs. While plaintiff did not recall whether his supervisors, John Kelly and Charles Brokaw, had discussed lifting techniques with him before starting the SAM in which he allegedly was injured, other employees verified that there was a planning meeting, attended by plaintiff, before the procedure was begun.

At the beginning of the SAM, other seamen put down a scaffolding. Using the procedure he had seen fellow workers and supervisors use, plaintiff lowered the tools and chain falls with a rope, hand over hand, over the rail of the A-frame to Eugene Orcutt, who was in the tunnel below. When he was lowering a chain fall, he felt a pain in his neck, but continued working. When his soreness recurred during work the next day, he reported the injury to the medical person on board. Two days later, plaintiff was referred to a doctor, who initially diagnosed muscle strain, but eventually determined that plaintiff had sustained a ruptured disc which required surgery.⁴

This tort action ensued, asserting two theories of recovery: (1) the negligence of defendant in failing to provide proper training in safe methods of lifting and lowering tools, and in failing to ensure that supervisory personnel required employees to utilize safe and proper procedures in performing the SAM; and (2) the unseaworthiness of the vessel arising from the dangers of having an improperly trained and supervised crew.

At trial, plaintiff testified that he had seen and used a "wrap around" as a safe method for lowering tools, but that wraps generally were used only for lowering heavier objects and that there was not enough room to use wraps without getting hung up on obstructions on the tunnel wall. Plaintiff asserted that he was required to swing the chain fall over into the thruster with a rope, away from the side of the thruster, as opposed to lowering it down straight. He admitted, however, that there was a place at the handrail where one could lower tools without having to worry about obstructions and that he had lowered tools from that spot before, but on the day of the accident he used a spot where he had to pick up the tools to avoid obstructions. Plaintiff complained that defendant should have provided mechanical equipment to assist in lowering tools.

Kelly, the mechanical supervisor, testified that in addition to the planning meeting before beginning the SAM, which plaintiff attended, safe lifting techniques were frequently discussed at weekly safety meetings. Other evidence established that placards illustrating proper lifting techniques were posted at various places around the ship.

Brokaw, another supervisor, verified the pre-SAM meeting, at which they discussed the SAM procedure, but stated he was not involved in beginning the operation. He testified that the seamen generally used regular rope to lower tools by the hand-over-hand method until the person in the tunnel (who cannot be seen) reaches out and grabs the tool. He never felt the need to use safety wraps in such operations.

The rig safety technician testified that lowering and raising tools thirty feet should be discussed at the pre-task safety meeting, and that there were regular classes and videotapes on back safety and proper lifting techniques.

Orcutt, plaintiff's co-employee, also verified the pre-task meeting on the morning of the SAM.

A materials handling safety expert presented by defendant testified that manually lowering tools weighing forty to fifty pounds about twenty-five feet with a rope was a safe and acceptable procedure if proper techniques were used. He approved the lifting procedures and on-the-job safety programs used by defendant.

An expert in drilling rig operations and safety presented by plaintiff admitted that lowering tools with a rope can be done effectively and safely "without being negligent." However, he criticized defendant for abandoning, because of excessive loss of tools, previously-used mechanical means of lowering tools, noting that mechanical assistance is designed to avoid injury, not to avoid losing tools.

Following a two-day bench trial, the trial court ruled in plaintiff's favor on both theories, awarding a total of $1,048,768 in damages. As to unseaworthiness, the court found the vessel had an improperly trained and supervised crew, and that defendant's failure to ensure that the supervisors on board were following and enforcing proper safety methods resulted in a "condition that made the vessel unseaworthy." The court concluded that the vessel was not reasonably fit for its intended use, because the personnel did not know how to perform their jobs in a safe manner.

As to Jones Act negligence, the trial court noted that the standard of care for negligence is the failing to exercise the care which an ordinary prudent person would use under the circumstances, and that the standard of causation is whether the defendant's negligence played any part, even the slightest, in producing the injury. The court ruled that defendant negligently failed to provide a reasonably safe workplace based on virtually the same factors referred to in the unseaworthiness determination, namely defendant's "failure to provide a safe work place by not ensuring that proper safety methods were being enforced by the supervisors on board" and "failure to make sure the crew members were properly supervised." The court observed that plaintiff was not properly trained in the safe method of lowering and lifting tools, but simply followed the example of those he watched and assisted, and that the supervisors never corrected the use of unsafe methods. However, the court did not articulate how the method used by plaintiff and his co-employees to lift and lower tools was unsafe.

Finally, in finding no contributory negligence, the trial court, citing Spinks v. Chevron Oil Co., 507 F.2d 216 (5th Cir.1975), noted that a seaman's duty to protect himself is slight, especially when the supervisor knows the method used by the seaman and does nothing about it.

In the interim between the trial court's judgment and the court of appeal's review of the case, the federal court of appeals in Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir.1997), overruled Spinks and several other cases which had used loose language such as "slight negligence" in describing the standard of care in Jones Act negligence cases. The court in Gautreaux held that a Jones Act seaman is required to act as a reasonable seaman under like circumstances, and that a Jones Act employer is required to act as a reasonable employer under like circumstances.

On appeal in the present case, the court of appeal noted that Gautreaux had overruled the Spinks case relied upon by the trial court in the contributory negligence analysis. 96-0626 (La.App. 1 Cir. 9/23/97); 701 So.2d 243. Applying Gautreaux, the intermediate court reviewed the facts under the standard of care stated therein.

The intermediate court, characterizing the task plaintiff was assigned to perform as "a common, ordinary task" that he had done "many times before," held that although other methods of lowering the tools were available, the method selected was not "unsafe." Further emphasizing that plaintiff had selected the method for lowering the tools from among several methods known and available to him, the court concluded that Jones Act negligence on defendant's part was not proved.

As to the unseaworthiness of the vessel, the court of appeal held that the trial court's findings that plaintiff "was not properly trained in lifting and that this lack of training made the vessel unseaworthy" were manifestly erroneous. 96-0626 at p. 7 (La.App. 1 Cir. 9/23/97); 701 So.2d 243, 248.

We granted certiorari to address the correctness of that decision. 97-3103 (La.3/20/98); 715 So.2d 1194.

Negligence Standard of Care in Jones Act Cases

The Jones Act provides the same rights to seamen that are provided to railway employees under the Federal Employers Liability Act (FELA), which in pertinent part makes the employer liable for injury "resulting in whole or in part" from the negligence of the employer's officers, agents or...