Cal Dive Offshore Contractors Inc. v. Nigel Bryant
478 S.W.3d 914
Tex. App.2015Background
- Nigel Bryant, a U.K. citizen and saturation diver residing in Thailand, slipped on an oily substance on a Cal Dive vessel’s deck in September 2010 and suffered a severe left-shoulder injury requiring two surgeries and ending his career as a saturation diver.
- Bryant sued Cal Dive in Texas, asserting negligence under English law; he timely filed a Rule 203 Notice of Intent to Rely on Foreign Law with a declaration from an English solicitor explaining English negligence/occupiers liability duties and available damages.
- Cal Dive submitted its own English materials shortly before trial (Occupiers Liability Acts, a case, and an excerpt of English damages Guidelines) arguing English law required proof of occupier knowledge and that damages were limited by the Guidelines.
- The trial court concluded English law’s duty mirrored ordinary negligence (a reasonableness standard), charged the jury on general negligence and Texas-pattern damages questions, and excluded Cal Dive’s proposed premises-liability/knowledge question.
- Jury found Cal Dive negligent, awarded $450,000 (mostly special damages for lost earning capacity and medical care); trial court denied Cal Dive’s post-trial relief and this appeal followed.
Issues
| Issue | Plaintiff's Argument (Bryant) | Defendant's Argument (Cal Dive) | Held |
|---|---|---|---|
| Adequacy of foreign-law proof under Tex. R. Evid. 203 | Bryant argued he timely and adequately informed the court of English law via Handley declaration and follow-up materials | Cal Dive argued Bryant failed to prove English law content and trial court should presume English law identical to Texas premises law | Court: Bryant adequately informed court; no abuse of discretion in applying English law (overrules issue) |
| Whether English law requires occupier actual/constructive knowledge (premises-liability element) | Bryant: Occupiers Liability Act 1957 imposes a common duty of reasonable care without a separate knowledge element for visitors | Cal Dive: 1957 Act did not eliminate requirement that occupier know or ought to know of risk; jury should be asked about knowledge | Court: 1957 Act imposes a common reasonable-care duty akin to Texas negligence; trial court correctly refused a separate knowledge question (overrules issue) |
| Damages standard — whether English Guidelines limited general damages to small amount | Bryant: English damages include general and special damages similar to Texas; Guidelines (if at issue) govern only general damages | Cal Dive: Guidelines cap general damages (argued ~$20,961) and court should apply English assessment rules | Court: English law allows same categories as Texas; Guidelines (unauthenticated excerpt) would govern only general damages and jury awards fall within that; charging Texas-pattern damages was not erroneous (overrules issue) |
| Legal/factual sufficiency that Cal Dive breached duty (notice of oil) | Bryant: Testimony that ROV had been taken out ~2 hours earlier and a foreman said oil had been reported three times; photos/records support timing | Cal Dive: Ship safety officer testified no prior reports, ROV not stored there, no oil when he inspected | Court: Evidence (including foreman admission and timing) permits reasonable inference Cal Dive had notice or recurring problem; evidence legally and factually sufficient (overrules issue) |
| Exclusion of cross-examination about taxation of damages | Bryant: Taxation cross-exam would unfairly prejudice jury (Bryant did not owe U.S. federal income tax) | Cal Dive: Entitled to probe how economist accounted for income taxes under Tex. Civ. Prac. & Rem. Code §18.091(a) | Court: Trial court did not abuse discretion under Tex. R. Evid. 403; evidence showed no U.S. tax reduction required and potential prejudice outweighed probative value (overrules issue) |
| Motion for mistrial over settlement/reference to hiring/settlement during cross | Bryant: Cross questioning and counsel’s settlement discussion were not improper or were harmless | Cal Dive: Settlement testimony required mistrial | Court: Cal Dive failed to object at trial or request curative instruction, so issue not preserved; denial of mistrial not reversible (overrules issue) |
Key Cases Cited
- Long Distance Int’l, Inc. v. Telefonos de Mexico, S.A., 49 S.W.3d 347 (Tex. 2001) (courts may apply foreign law; Rule 203 procedures govern judicial determination of foreign law)
- PennWell Corp. v. Ken Assoc., Inc., 123 S.W.3d 756 (Tex. App.—Houston [14th Dist.] 2003) (trial court may consider various materials and parties must follow Rule 203 procedures)
- Kermerac v. Compagnie Generale Transatlantique, 358 U.S. 625 (U.S. 1959) (recognition that English law eliminated invitee/licensee distinctions)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (standards for legal-sufficiency review and inferences supporting jury verdict)
- Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757 (Tex. 2003) (types of damages recoverable in Texas personal-injury actions)