Wilkinson v. Yamashita-Shinnihon Kisen, KK, Civ. A. No. 71-106-M

• Decision Date: 27 November 1973
• Docket Number: Civ. A. No. 71-106-M,71-1090-M.
• Citation: 366 F. Supp. 110
• Parties: Joseph F. WILKINSON, Plaintiff, v. YAMASHITA-SHINNIHON KISEN, K.K., Defendant. Joseph F. WILKINSON, Plaintiff, v. D/S A/S DEN NORSKA AFRIKA-OG, etc., Defendant.
• Court: U.S. District Court — District of Maryland

366 F. Supp. 110

Joseph F. WILKINSON, Plaintiff, v. YAMASHITA-SHINNIHON KISEN, K.K., Defendant.

Joseph F. WILKINSON, Plaintiff, v. D/S A/S DEN NORSKA AFRIKA-OG, etc., Defendant.

Civ. A. Nos. 71-106-M, 71-1090-M.

United States District Court, D. Maryland.

October 25, 1973.

As Corrected November 27, 1973.

Joseph F. Lentz, Jr., Baltimore, Md., for plaintiff Wilkinson.

Donald L. Merriman, Baltimore, Md., for defendant Yamashita-Shinnihon Kisen, K.K Eugene A. Edgett, Jr., Baltimore, Md., for defendant D/S A/S DEN NORSKA AFRIKA-OG, etc.

JAMES R. MILLER, Jr., District Judge.

MEMORANDUM

These two cases were consolidated for trial on the issue of damages. Previously separate trials were held on the issue of liability. Although the pretrial preparation of these cases by counsel did not adequately inform the court of the issues which would be presented at the trial, the cases have presented interesting and unusual questions of law.

In a previous oral opinion in Civil Action No. 71-106-M, the court has found that Joseph F. Wilkinson, a longshoreman then employed by Baltimore Stevedoring Company, Inc., was injured on November 1, 1970, as a proximate result of the negligence of the defendant Yamashita-Shinnihon Kisen, K.K. on its ship, SS YAMAWAKA MARU. The plaintiff's negligence contributed to this accident to the extent of 50% when he slipped on ice in a reefer on the SS YAMAWAKA MARU, thereby falling and injuring his back. The court, therefore, has previously determined that the defendant, Yamashita-Shinnihon Kisen, K.K., is liable to the plaintiff for 50% of the injuries to the plaintiff proximately caused by the negligence of the defendant.

In an oral opinion previously rendered in Civil Action No. 71-1090-M, the court has found that the defendant's ship, SS TITANIA, was unseaworthy in the manner in which access was provided from the deck to No. 1 hatch on the forecastle. Undisputed testimony established that the hatch coaming was 57 inches high and that the only rung or step on the port side of the outside wall of the hatch coaming was 17 inches above the deck. The court has found that no other means was provided for the plaintiff, a longshoreman then employed by ITO Corporation of Baltimore, Inc., to climb over the hatch coaming to descend into the hatch for the purpose of discharging cargo on May 25, 1971. On that date, the plaintiff injured his right knee while attempting to climb the hatch coaming of No. 1 hatch on the SS TITANIA. Although finding that the SS TITANIA was unseaworthy and that the unseaworthiness was a proximate cause of the plaintiff's injury to his knee, the court in the previous liability trial reserved judgment on the issue of the plaintiff's contributory negligence.

When the evidence had been completed on the issues of liability and damages in these two cases, it was apparent that the plaintiff was claiming that his physical condition caused by the first accident contributed to the occurrence of the second accident and that, in addition, the second accident aggravated the preexisting back injury resulting from the first accident. The court has attempted to unravel the legal tangle which has thereby resulted.

From the credible evidence, the court finds as a fact that the plaintiff's average weekly wage was $127 at the time of his injury to his back on November 1, 1970; that he was off from work from November 1, 1970, through April 18, 1971, as a result of that injury; and that he received a lumbo-sacral strain with sacroiliac involvement from that accident. His back injury was very painful, required him to wear a back brace, and limited his ability to climb ladders and to lift groceries from grocery carts when he was shopping. Although the plaintiff's back gradually improved after the accident, it was not asymptomatic on May 25, 1971.

As a matter of fact, plaintiff testified that his back on May 25, 1971, was very painful; that as of that time he was afraid to climb ladders at home due to his difficulty in lifting one foot over the other because of the back injury and that he still could not lift groceries out of grocery carts. Furthermore, he said that he had difficulty standing on his right leg.

On May 25, 1971, while standing on the rung on the outside port wall of the No. 1 hatch coaming of the SS TITANIA, the plaintiff, in an attempt to straddle the top of the hatch coaming, lifted his right leg to throw it over the top of the coaming but, in doing so, he was unable to lift his right knee high enough. It struck the edge of the hatch coaming. The plaintiff's back condition contributed to his being unable to get his right leg high enough to enable him to climb onto the coaming without hitting his knee.

The trauma to his right knee on the SS TITANIA resulted in a contusion and swelling of the right knee, without fracture or dislocation. From the credible medical evidence, the court finds that the trauma to the right knee caused chrondromalacia or degeneration of the cartilage on the back of the patella (knee cap), a condition discovered in an exploratory operation performed in December, 1971.

The injury to the knee resulted in swelling and pain in the right knee which in turn caused the plaintiff to limp. This limp, alleviated by the use of crutches initially and then a cane, aggravated the preexisting back injury. If it had not been for the knee injury which resulted in an altered gait, the plaintiff's back would have eventually improved to the point at which he could have performed his regular duties associated with the work of a longshoreman. While he would have had a permanent anatomical loss of 10% of his back as a direct result of the fall of November 1, 1970, that anatomical loss, although somewhat painful and inconvenient, would not have had a sufficiently disabling effect, in and of itself, to prevent the plaintiff from continuing work as a longshoreman.

The plaintiff has been off from work from May 26, 1971, through the close of evidence in this case (September 14, 1973) with the exception of one or two days in the spring of 1972.

The plaintiff, now 50 years of age, with a life expectancy of 23 years, testified that his back and knee prevent him from working at all. He says that his back and knee prevent him from engaging in certain recreational activities which he used to enjoy, such as dancing, crabbing, and walking, and that he cannot stoop, lift, nor go up and down ladders. He further states that his buttocks ache if he sits or stands for too long a period. He complains also that his sexual relations have been severely hindered by his physical condition and that he is no longer able to perform any of the work around the house or the yard which he used to do.

From all of the credible evidence, the court finds as a fact that the plaintiff has an anatomical loss equivalent to a 30% permanent disability of his right knee. The court further finds that the plaintiff also has an anatomical loss equivalent to a 20% permanent disability of his back of which 10% permanent disability occurred as a direct result of the fall on November 1, 1970, and of which the remaining 10% is an aggravation caused as a direct result of the altered gait produced by the knee injury of May 25, 1971. The plaintiff reached his maximum stage of improvement on October 31, 1972, and has not seen any physicians for treatment nor obtained any prescriptions for medication in reference to his back or knee since that time.

All of the medical evidence in these cases supports the conclusion that the plaintiff is no longer physically able to perform the work of a longshoreman in the hold of a ship. He must avoid extreme changes in temperatures, lifting, climbing, and uneven surfaces.

There was some evidence that the plaintiff is completely unemployable and that he cannot be vocationally rehabilitated. The court does not find that evidence convincing. There is substantial evidence in this case that part of the plaintiff's difficulties is the result of his emotional reaction to his organic physical disabilities. To the extent that the plaintiff has a functional overlay on his permanent organic disabilities, the court believes that it was caused equally by the November 1, 1970, accident and the May 25, 1971, accident. No expert medical evidence is necessary for the court to reach that conclusion. Sentilles v. Inter-Caribbean, 361 U.S. 107, 109, 80 S. Ct. 173, 4 L.Ed.2d 142 (1959). This is not to say, however, that the court believes that the plaintiff has met his burden of proof in these consolidated cases to establish that he is completely unable to work in any capacity on the waterfront or elsewhere. From all of the credible evidence, the court finds as a fact that the plaintiff could work in a relatively sedentary job, if he had the proper motivation so to do, and earn at least one-half of the average wage that he would have earned had he continued to work as a longshoreman on the waterfront.

Plaintiff came to work on the Baltimore waterfront in the ILA contract year of 1962-63. For the seven ensuing full contract years before the year in which the plaintiff fell on the YAMAWAKA MARU, he averaged 800 hours of work. He eventually became a regular member of a longshoring gang and was 15th man on the gang at the time of his injury in November, 1970. The court concludes as a fact that the plaintiff, but for the injuries sustained in November, 1970, and May, 1971, would have continued to work as a longshoreman on the waterfront, working at least 800 hours per contract year until he reached the age of 65, the age at which it is generally recognized in this District that working life on the waterfront ends. The plaintiff would, therefore, have qualified for the following benefits under the collective bargaining agreement between his union and the Steamship Trade Association of Baltimore:

(1) Pension at age 65 of $250 per month for life.

(2) Term life insurance of $6,000 up to age 65 of which $1,000

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