Walden v. U.S.

• Decision Date: 25 February 1998
• Docket Number: No. 97-CV-121 H(POR).,97-CV-121 H(POR).
• Citation: 31 F.Supp.2d 1230
• Parties: Steven WALDEN, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of California

31 F.Supp.2d 1230

Steven WALDEN, Plaintiff, v. UNITED STATES of America, Defendant.

No. 97-CV-121 H(POR).

United States District Court, S.D. California.

February 25, 1998.

COPYRIGHT MATERIAL OMITTED

Preston Easley, San Pedro, CA, for plaintiff.

Brian Juge, Torts Branch, Civil Division, U.S. Department of Justice, San Francisco, CA, for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

HUFF, Chief Judge.

FINDINGS OF FACT

1. The USNS OBSERVATION ISLAND is a public vessel of the United States.

2. From February 1 through February 20, 1995, Mr. Walden was working aboard the OBSERVATION ISLAND as a ship repair worker employed by Dolphin Industries pursuant to a contract between Dolphin Industries and the Department of Navy Military Sealift Command ("MSC").

3. On February 10, 1995, the date of Mr. Walden's injury, the OBSERVATION ISLAND was at sea.

4. Plaintiff Steven Walden is 32 years old. He was injured aboard USNS OBSERVATION ISLAND on February 10, 1995, while doing voyage repairs at sea for a marine repair contractor known as Dolphin Industries, which had three men on the vessel. As plaintiff left his stateroom, his head bumped against a low hanging air duct which ran from side to side across the entire passageway. The air duct and the overhead were both white. The air duct was 5'10" above the deck. The port engineer's testimony to the contrary, although given in good faith, was mistaken.

5. After the accident, plaintiff did not immediately report the incident. Later that day, he sought treatment from the ship's medical officer, who suggested that he take Motrin and return to work. He remained on the ship for 10 days. When plaintiff returned to San Diego he sought treatment with Dr. Han, who started him on physical therapy and placed him on temporary disability. Dr. Han returned plaintiff to light duty in March of 1995. Walden noticed an increase of numbness in his hands and extremities. On July 28, 1995, he had another work accident when he broke his ribs from jumping down from a ship area. He did not report a history of numbness to his hands or problems with his neck. When seen Paradise Valley Hospital for this second work accident. By November, 1995, he saw Dr. Lukavsky who ordered an MRI of the cervical spine and requested him to stop working.

6. The neurologist, Dr. Jablecki, had the MRI scan performed, which revealed a herniated disc at C5/6 with spinal stenosis and a large disc bulge at C4/5, causing progressive cervical myelopathy. Dr. Jablecki pronounced the situation as "urgent," and made arrangements for immediate neurosurgical review. Surgery was performed on November 17, 1995. Dr. Jablecki testified that Walden has radiculopathy, with numbness in the hands, impairment of coordinated movements, and impairment of proprioception in his lower extremities, which interferes with coordinated use of the legs. Dr. Jablecki concluded that plaintiff is no longer able to do ship repair work.

7. The air duct which caused plaintiff's injury was in an area of the vessel under defendant's control and was in place and unmarked prior to plaintiff's assignment to the vessel. The height of the duct was 5'10". Defendant failed to turn the vessel over to the repairmen in a reasonably safe condition for doing their work.

8. Plaintiff's neck injury was caused by the negligence of the USA and by plaintiff's own negligence. The Court rejects the discretionary function exception as applied to the facts of this case.

9. Plaintiff was contributorily negligent by 25% for failure to exercise due care for himself. The Court concludes from the evidence presented that plaintiff failed to exercise reasonable care for himself as he walked in the passageway and hit his head on the duct.

10. Plaintiff's damages for past medical treatment are $28,050.00.

11. Plaintiff's damages for past wage loss, after taxes, are $46,788.00.

12. Plaintiff's damages for future loss of wage earning capacity, present cash value, after taxes, are $100,000.00. Plaintiff is employable, presents himself well, is of average intelligence and average manual dexterity.

13. Plaintiff's pain and suffering, both past and future, is $100,000.00.

14. Plaintiff's total damages caused by defendant's negligence are $206,128.50 plus statutory interest from the date of the judgment.

CONCLUSIONS OF LAW

1. This Court has jurisdiction of this action pursuant to the provisions of the Public Vessels Act, 46 U.S.App. § 781-790, which incorporates the consistent provisions of the Suits in Admiralty Act, 46 U.S.C.App. § 741-752, and is brought subject to the provisions of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901-950 (LHWCA). Under the Public Vessels Act, an injured party has no greater claim against the United States than he would have against a private person under similar circumstances pursuant to LHWCA. 46 U.S.C.App. § 742, 743; Canadian Aviator v. United States, 324 U.S. 215, 227-8, 65 S.Ct. 639, 89 L.Ed. 901 (1945).

2. Plaintiff may recover against the United States, as vessel owner, if plaintiff establishes the Government's negligence by a preponderance of the evidence. Plaintiff has the burden of proving that he was injured and that the United States was negligent, i.e., that it owed him a duty and breached it. Doucet v. Diamond M Drilling Co., 683 F.2d 886, 892 (5th Cir.1982), cert denied, 459 U.S. 1227, 103 S.Ct. 1234, 75 L.Ed.2d 468 (1983).

3. The scope of a vessel owner's duty under the LHWCA is defined in Scindia Steam Navigation Company, Ltd. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), and the cases interpreting it. See also, Taylor v. Moram Agencies, 739 F.2d 1384 (9th Cir.1984). The duty of care delineated in Scindia as to longshoremen applies equally to repairmen. Cook v. Exxon Shipping Co., 762 F.2d 750, 752 (9th Cir. 1985), cert denied, 475 U.S. 1047, 106 S.Ct. 1266, 89 L.Ed.2d 575 (1986).

4. In Bjaranson v. Botelho Shipping Corporation, 873 F.2d 1204 (9th Cir.1989), the Court described the various Scindia duties. The Bjaranson Court held that the fourth duty was that a vessel may be liable if it fails to exercise due care to avoid exposing longshoremen to harm from hazards they may encounter in areas, or from equipment, under the active control of the vessel during the stevedoring operation. Bjaranson defines this as the "active control duty."

5. Defendant United States of America is liable for plaintiff's injury because it failed to turn the vessel over to the repairmen in a reasonably safe condition. Scindia Steam Navigation Company, Ltd. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981). Scindia outlines the basic duties a vessel owes to longshoremen under 33 U.S.C. § 905(b), the Longshore Act. Generally, a vessel owes the longshoreman the duty of exercising due care under the circumstances. Scindia, p. 1622.

A) The duty to turn over the vessel in such a condition that an experienced independent contractor can safely fulfill its contractual obligations. The vessel owner must turn over the ship and its equipment in such condition that an expert and experienced stevedore will be able by the exercise of reasonable care to carry on its cargo operations with reasonable safety to persons and property and to warn the stevedore of any hazards on the ship or with respect to its equipment that are known to the vessel or should be known to it in the exercise of reasonable care, that would likely be encountered by the stevedore in the course of his cargo operations and that are not known by the stevedore and would not be obvious to or anticipated by him if reasonably competent in the performance of his work. Scindia, p. 1622

6. Defendant United States breached its duty to safely maintain an area under its control. The standard of care owed by vessels to longshoremen was established by Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981). Scindia held that a vessel may be liable for injuries to a longshoreman if the vessel "fails to exercise due care to avoid exposing longshoremen to harm they may encounter in areas or from equipment under the active control of the vessel during the stevedore operation." 101 S.Ct. 1614, 68 L.Ed.2d at 10. The plaintiff was injured in an area under the control of the vessel. In Theriot v. Bay Drilling Corporation, 783 F.2d 527 (5th Cir.1986), the court said:

We have stated that "the owner has a duty to avoid exposing longshoremen to harm `from hazards under the act or control of the vessel.'" Helaire v. Mobil Oil Co., 709 F.2d at 1036 (citing Scindia, 451 U.S. at 167, 101 S.Ct. at 1622). In fact, Turner v. Costa Line Cargo Services, Inc., 744 F.2d 505, 508-509 (5th Cir.1984), held that a shipowner was liable for injuries sustained by a longshoreman who slipped and fell on an oil slick which was in an area within the shipowner's control.

7. Defendant United States retained control over the air duct and is therefore liable for its dangerous condition. In Scindia, supra, the Supreme Court held that a vessel may be liable "if it fails to exercise due care to avoid exposing longshoremen to harm from hazards they may encounter in areas or from equipment under the active control of the vessel during the stevedoring operation."

8. Defendant United States and Dolphin Industries maintained concurrent control over the air duct. Defendant United States is still liable for plaintiff's damages, with no offset for any Dolphin Industries negligence. Davis v. Partenreederei, 657 F.2d 1048 (9th Cir.1981); Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 99 S.Ct. 2753, 61 L.Ed.2d 521 (1979); reh. den., 444 U.S. 889, 100 S.Ct. 194, 62 L.Ed.2d 126 (1979).

9. A vessel is not relieved of liability because of the longshoreman's failure to complain of the hazard. When faced with a hazardous condition, neither the longshoreman or his employer are required to request the vessel to remedy the hazard...