Briscoe v. Devall Towing & Boat Service of Hackberry, Inc.Briscoe v. Devall Towing & Boat Service of Hackberry, Inc.
MEMORANDUM RULING
Now before the court for its consideration is defendant, Devall Towing & Boat Service of Hackberry, Inc.’s (“Devall”) Motion for Summary Judgment. Devall contends that under the jurisprudence of the United States Court of Appeals for the Fifth Circuit a рlaintiff may not recover under § 688 of the Jones Act for emotional injury unaccompanied by physical injury. Devall further contends that there are no genuine issues of material fact. The plaintiff responds that the Fifth Circuit allows recоvery for purely emotional injuries under these circumstances.
*40 BACKGROUND
This court finds that there are no genuine issues of material fact between the facts as alleged by Devall and as alleged by the plaintiff. Nevertheless, whenever this cоurt must choose one version of the facts over the other, this court will view the facts in the light most favorable to the plaintiff. This court assumes that the facts are as alleged in Plaintiffs various pleadings, specifically his Statement of Contested Facts, Pretrial Statement and Memorandum in Opposition to Defendant’s Motion for Summary Judgment, for purposes of Devall’s Motion for Summary Judgment. Plaintiff does not allege that he suffered any physical injury in the facts given in his pretrial statеment. Further, plaintiff, in listing the issues of fact in his pretrial statement, does not state that there is any issue as to whether he suffered any physical injury. Plaintiff does state in his Statement of Contested Facts that it is contested whether plaintiff suffered physical injury, yet he does not identify the injury in his Memorandum in Opposition to Defendant's Motion for Summary Judgment. Rather, plaintiff merely alleges that there was an “impact” and never mentions any injury. Plaintiff then identifies this impact as either the shifting of the vessel, the plaintiff’s fall on the deck of the boat, or the jumping overboard and swimming. [Plaintiff’s Memorandum In Opposition to Motion for Summary Judgment, page 6] Nowhere does the plaintiff allege that he suffered any actionable physical injury. The plaintiff’s only alleged injury was emotional.
On the night of June 26, 1991, the M/V MAR-RAY sank in the Calcasieu Parish Ship Channel. The plaintiff, an employee of Devall, was a deckhand on the M/V MAR-RAY. The M/V MAR-RAY is a 55 foot long, I6V2 foot wide pushboat with two diesel engines. The plaintiff was wоrking as a deckhand aboard the M/V MAR-RAY on the night she sank. The captain of the vessel, Scott Guidry, ordered plaintiff off of the vessel when it became apparent that she was going to sink.
Plaintiff then climbed over the port side of the vessel and got into the water and swam at most one hundred (100) feet to THE WOODRIVER EXPRESS. According to plaintiff while in deposition on December 4, 1991, he was skinned up a little and bruised a little with no other physical injury. [Deposition of Briscoe, December 4, 1991, pagеs 24 & 25] The day after the incident, plaintiff stated that he had no injuries whatsoever. [Briscoe’s June 27, 1991 recorded statement, page 6] Further, in his later medical examinations, plaintiff never reported any physical injury. As the analysis will show, it makes nо difference which of these statements this court accepts as the truth for even if the plaintiff was skinned up a little and bruised a little his injury is trivial. Thus, under the jurisprudence of the Fifth Circuit, the result remains the same.
On July 15, 1991, Dr. Nguyen Nguyen, a psychiatrist, diagnosed plаintiff as having Post-Traumatic Stress Disorder. Plaintiff, in his Pretrial Statement, states that these emotional injuries were caused by, “extreme anxiety attacks and nightmares regarding the sinking and his near death.” [Plaintiff’s Pretrial Statement at page 2],
ANALYSIS
Summary Judgment is prоper only when the pleadings and other evidence properly before the court show that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett,
The only issue before this court is whether a plaintiff may recover under the *41 Jones Act, 46 U.S.C.App. § 688, for purely emotional injuries absent physical injury. The law in the Fifth Circuit is clear that such injuries are not compensable.
In
Gaston v. Flowers Transp.,
In
Plaisance v. Texaco, Inc.,
Most recently, in
Ainsworth v. Penrod Drilling Corp.,
As these decisions show, a plaintiff may not recover for purеly emotional injury under the Jones Act. That this plaintiff has suffered some trivial physical injury is not sufficient reason to allow the plaintiff to recover for an emotional injury. Even accepting the facts in the light most favorable to this plaintiff, he may not recover for his emotional injuries; for, at most, his injuries are trivial.
These cases also indicate that a plaintiff may not recover for emotional injury that does not arise out of a physical injury. Thus, in Gaston, the court refused to аllow the plaintiff to recover for the emotional injury resulting from watching the death of another. The mere fact that the plaintiff in Gaston had, in fact, suffered an injury— albeit a trivial injury — was not sufficient to justify allowing him to recover for emotional injuries caused by watching the death of another. This plaintiff does not allege that his emotional injury arose out of his physical injuries; rather, he alleges that they arose out of his “extreme anxiety and nightmares regarding this sinking and his near death.” [Plаintiff’s Pretrial Statement at page 2],
Nor is the impact requirement applicable under these facts. In
Hagerty v. L & L Marine Services, Inc.,
The decisions of the Fifth Circuit referring to the impact requirement set forth in
Hagerty
lead an observer to conclude that the impact rule is not applicable to this sort of negligence claim arising under § 688 of the Jones Act for purely emotional injuries unaccompanied by physical injury. This court discerns that the Fifth Circuit only intends for
Hagerty
to apply to cases in
*42
volving intentional tortious conduct and to cases which involve latent diseases rather than traumatic injuries to seamen. The Fifth Circuit has looked to
Hagerty
for guidance in several cases.
Smith v. A.C. & S., Inc.,
That the Fifth Circuit never intended for
Hagerty
to apply to this sort of claim is hinted at in
Gaston.
When the court, in
Gaston,
referred to the plaintiffs physical injuries as being only trivial, their intentions in
Hagerty
became discernible. For, to suffer even a trivial physical injury an impact is a necessary precedent. Thus, since the court bars a plaintiff from recovering for emotional injuries when his physical injuries are trivial, the court also bars a plaintiff from recovering for emotional injuries when the impact is insufficient to cause more than trivial physical injuries. Chief Judge Politz, writing the court’s first opinion in
Plaisance,
“We rejected the argument that Hagerty provided the basis for recovery for a purely emotional injury. Rather, we noted that while Hagerty ‘did observe that a Jones Aсt recovery was possible without physical impact, that statement was necessarily dictum; for Mr. Hagerty did suffer impact, having been drenched with cancer-causing chemicals.’ ”937 F.2d at 1007 .
When the Fifth Circuit reconsidered Plaisance, en banc, the court emphasized this view:
“To avoid any possible confusion that our decisiоn to review this case en banc may cause, we emphasize that Gaston v. Flowers Transp. continues to represent the law of this circuit.” (citations omitted)966 F.2d at 169 .
The court did not stop here, however, Judge Davis continued:
“The holding in Gaston is limited but instructive. The court recognizеd that a plaintiff suing for purely emotional injuries could recover if he also suffered physical injury.” Id.
Judges Garza, Davis, and Barksdale, in Ainsworth, confirmed that this is, in fact, the Fifth Circuit’s rule when they referred to Gaston and noted that trivial physical injuries do not support recovery for purely еmotional injuries.
It is evident from this review of the cases citing Hagerty that the Fifth Circuit does not intend for Hagerty to apply to allow a plaintiff to recover for purely emotional injury merely because of some picayune impact. Rather, the rule of the Fifth Circuit, and the rule that this court now applies, is that a рlaintiff suing for purely emotional injuries can recover only if he also suffered physical injuries.
Finally, it is important to remember in evaluating claims of this sort that all sailors are attributed an appropriate amount of daring, strength and quality of character as befits one who has chosen a calling that involves braving certain hazards. The court in Gaston noted that:
“Finally, there seems to be something incongruous in undertaking such an extension of liability to seamen and railroaders. These hаve knowingly and voluntarily chosen callings which, while today perhaps not fairly termed dangerous, yet do involve braving certain hazards and are traditionally not well suited to the squeamish or faint-hearted. To undertake to enlarge such рersons in damages in proportion to the delicacy of their emotional reactions seems a curious policy.” Gaston, supra at 820.
*43 Chief Judge Politz cited this approvingly in the Fifth Circuit’s first opinion in Plaisance. Chief Judge Politz wisely noted:
“Having so stated, we remain vitally aware that seamen and railroaders have chosen callings that ‘involve braving certain hazards [which] are traditionally not well suited to the squeamish or fainthearted.’ In evaluating claims of emotional injury, courts must attribute to those who choose thesе callings the appropriate daring and strength and quality of character.” (citations omitted)937 F.2d at 1011 .
This court recognizes Chief Judge Politz’s sagacious insight into this area and so heeds his fiat.
For the foregoing reasons, Devall’s Motion for Summary Judgment is granted.