Charles D. Gautreaux v. Scurlock Marine, Inc.

switch should ignition electric and then the DUHÉ, Neither try engage the winch. used to Before HIGGINBOTHAM told SCHWARZER,1 Orgeron nor District Archie Seurlock Judges, and handle he manual crank using the that while Judge. fornia, by designation. sitting Judge District Cali- Northern 1. District should not leave the handle on the winch liability. for limitation of Scurlock moved in attempting engage motor when the winch the judgment alternative for as a matter of by pro ring ignition the electric switch. law, trial, alter, for new or to amend or remit hired, About four months after he was judgment. The district court denied Gautreaux, serving captain motions, conditioning these denial of the mo- LYNN, BROOKE relieved the tanker man tion for new trial on the amount of lost future began loading barge off in wages on acceptance of a remit- barge discharged cargo, tow. As the its it titur.3 Gautreaux accepted remittitur, water, began eventually causing to rise in the and the district court an entered amended towing connecting wires it to the $736,925 for Gautreaux.4 Noticing BROOKE LYNN to become taut. this, appeal, On attempted argues Gautreaux to relieve the ten- the dis- by unwinding sion in the wires them from the court trict committed following the errors: winches. He released the starboard wire (1) improperly charging jury on ap- first, which caused that side of the BROOKE (2) law, plicable refusing to judgment enter drop LYNN to port towing and the side wire as a matter of law on the issues of entitle- tighter. become even Gautreaux then at- (3) ment to lost future wages liability, and tempted wire, port to release the side but the failing recognize that the awards for lost electric winch would work. not He attached wages pain future and suffering and were motor, the manual crank handle the winch trial, (4) excessive and warranted a new and began turning and the handle while simulta- denying petition its for limitation liability. neously pressing ignition the electric switch. started, When the motor the manual crank handle flew off and struck Gautreaux on the II. DISCUSSION right face, crushing side of his right eye his Jury A. instructions inflicting and other severe fractures and lac- erations. The district has court broad discre Scurlock, alleging formulating sued jury charge, and so injuries negligence were caused its and jury we review instructions with deference. unseaworthiness the BROOKE Co., v. Marathon Stine Oil 976 F.2d primary cоmplaint LYNN. Gautreaux’s (5th Cir.1992); Bradshaw Freightliner v. that Scurlock failed to train him in properly Corp., Cir.1991); 937 F.2d operation the use and towing the electric Treadaway Anonyme v. Louis-Drey Societe n winchand its manual handle, thereby crank (5th Cir.1990). jus, 894 F.2d Ac providing him place a safe to work. cordingly, jury charge a is to be considered sought Scurlock answered and exoneration whole, a jury and so long as the is not from or liability. limitation of its After misled, prejudiced, confused, and the trial, two-day jury returned verdict in charge comprehensive fundamentally is favor of Gautreaux on negli- his Jones Act accurate, it adequate. will be deemed Davis gence claim, but found the BROOKE LYNN Indus., Inc., v. Avondale 975 F.2d 174- seaworthy. jury apportioned fault 95% (5th Cir.1992); Bradshaw, to Scurlock and 5% to at Gautreaux and award- F.2d $854,000 ed a total of in damages.2 200. We charging reverse for error in jury given, whole, when the charge as a The district сourt entered $811,300. leaves us with By order, Gautreaux for substantial ineradicable separate the district petition court denied jury Seurlock’s properly doubt whether the has been jury's 2.The award was: premised as the award was on Gautreaux's ina- bility minimum-wage employment to return to pain suffering Past and future during years the first two after accident. $300,000 disability Accordingly, the district court conditioned denial 24,000 wages Past lost of Scurlock's new trial on this mоtion element of 500,000 wages Future lost damages acceptance on Gautreaux’s of an award 30,000 expenses Future medical $400,625. $854,000 Total 7, 1995, 4. On June the district court further jury's 3.The district court found the award of judgment, discovering amended its that it had $500,000 for lost future excessive and failed to reduce the amount of fu remitted lost evidence, against great weight wages by percentage insofar ture of fault. Gautreaux’s experience him in Mooney Ar- on Seurlock’s to train guided in its deliberations. Co., operation winch.5 The district Servs. amco Cir.1995) Mijalis, F.3d (quoting wording FDIC v. adopt verbatim court need (5th Cir.1994)); Hall v. State suggested party. an instruction Co., Casualty Farm Fire & e.g., Tire Rubber Firestone & Jackson Cir.1991) Treadaway, (quoting (5th Cir.1986). Instead, 167-68). at merely fully correctly its task applicable Bend- charge the law. court the district erred Scurlock contends Cir.1993) Brumley, 1 er v. jury that by failing a Jones to instruct Miller, Wright (quoting 9 Federal Practice rely expe- on employer is entitled to (1917)). § this rec- rience, license, and Procedure On training, of indi- ‍​​​​​‌​‌‌​​‌‌‌‌‌‌‌​​​‌‌‌‌‌‌‌​​​‌​​‌‌​‌‌‌‌‌‌​‌​‌‌‍or education ord, no dis- seamen-employees determining find reversible error in the we vidual give pro- train to what extent them. trict court’s refusal to Scurlock’s whether or Further, argues posed the district court’s instructions. jury that refusal it could to instruct to the As instructions qualities of a consider these same seaman- contributory negligence, determining сontributory employee when precise, equally was was as effec not but negligence was also error. The district court tive. instructed: matter, a threshold the district As way provided If a seaman is with a safe requested jury required give is to court not something in and he chooses to do to work that is not a correct statement of instruction way is that he knows or should know 1216; Mooney, the law. 54 F.3d at Treada not dangerous, employer unsafе and is proposed way, 894 at 167. If the in responsible for the results of a choice law, accurately the the struction does state knowingly by the made seaman. still has committed district court not revers you plaintiff ... that the chose [I]f find it, by refusing give provided the ible error to to use an method that he knew or unsafe requested instruction con substance of the is unsafe, have in viola- should known was or

veyed charge. Dawsey Corp., in v. Olin instructions, yоu may tion of find he was (5th See Bank also wholly partly hap- responsible or for what One, Texas, Taylor, N.A. v. 970 F.2d pened. denied, 906, 113 cert. 508 U.S. Again, (1993). it is not for the court to 2331, 124 error district L.Ed.2d 243 S.Ct. give a requested to refuse instruction charged: court district accurately applicable states law if the sub- considering experience Now in of that is in the stance instruction embraced plaintiff, you may negli- find the defendant charge. We conclude albеit without gent you preponderance if find from a sought, exactitude Scurlock instruction this assigned plain- the evidence defendant sufficiently conveyed that train- perform tiff to not task which was ing, knowledge, experience factors were to adequately perform. trained The defen- jurors determining in could consider obliged employ- dant to train all of its was his own was whether conduct ees, vessel, including captain injuries. to his сontributed proper use of the vessel’s safe However, un- equipment. defendant was Finally, argues it to was error obligation plaintiff der no warn jury respect determining instruct the with aware. conditions of which he was contributory negligence that was slight jury only required to care for clearly This instruction invited the exercise safety In- training and own the circumstances. impact assess the of Gautreaux’s under whether, stead, record, generаlly, We do this uncontrovert- 5. not decide a Jones Gautreaux's testimony employer’s duty seamen-employ- never a manual to train its ed that he had seen experi- ees is lack handle for use on an electric winch controlled amount or crank ence, education, required training, licensing, that Scurlock was or knowl- sufficient establish appli- edge seaman-employee possesses, proper as such a tо train him as to the use of these facts. In- ance. conclusion is warranted stead, contends, supporting the standard to denee a claim for lost future Gautreaux, seamen, which and all should any period beyond two-year reasonably prudent person held that of a is period adjustment. exercising ordinary or due care under like Judgment as a matter of law in a slight standard, circumstances. The care Jones Act appropriate case is only when however, Circuit, law settled of this complete there is a probative absence of facts see, Inc., e.g., Johnson v. Express, Offshore supporting position. nonmovant’s Cir.), denied, 845 F.2d cert. Consulting e.g., Hughes v. Diving International 488 U.S. 109 S.Ct. 102 L.Ed.2d 533 vs., Inc., 68 F.3d Cir. Ser (1988); Pickle v. International Div Oilfield 1995). As highly this standard is favorable ers, Inc., Cir.1986), plaintiff, to the we must jury validate the 479 U.S. S.Ct. possible. verdict if at all Id. As there was (1987); L.Ed.2d 989 Brooks v. Great Lakes adequate more than upon evidence which to Dredge-Dock submit to the question of Gau Cir.1984), modified, and as wages, treaux’s lost future validation of the (5th Cir.1985), and the district must court verdict in this appropriate. ‍​​​​​‌​‌‌​​‌‌‌‌‌‌‌​​​‌‌‌‌‌‌‌​​​‌​​‌‌​‌‌‌‌‌‌​‌​‌‌‍case is jury fully correctly instruct Thus, applicable law.6 that the Dr. Steigner, J. Bruce ophthal give proposed declined Scurloek’s instruc mologist surgically who removed Gautreaux’s ordinary that the seaman’s is one of right crushed eye and recovery monitored his care, slight due favor of the care in injury, from the testified that Gautreaux’s struction, error.7 eye equated loss of one disability to a 50% system his visual and a disability 25% of his Judgment B. as a matter lawof anatomy according guidelines total 1. Lost American Medical Steigner Association. Dr. future further stated that eye greatly loss of an argues Scurlock the district court erred in impairs depth perception one’s peripher denying its motion for a mаtter as vision, impairments al which he believed of law Gautreaux’s claim for lost future piloting tug would make difficult. Scur wages, because Gautreaux failed to introduce psychiatric expert lock’s testified that Gau any expert testimony or other dis- vocational adjustment treaux from an suffered disorder ability demonstrating evidence that he suf- accompanied by depression, a condition not earning capacity ferеd diminished future be- following uncommon injury. such an yond He in years experts the two medical testified dicated while he did not think adjust it him Gau monoseopic would take Instead, by condition, treaux was only vision. disabled this he evidence of disabili- did ty believe testimony legitimate was Gautreaux’s own Gautreaux harbored that he fears post-injury did not feel about returning pre- comfortable to his condition and recom injury employment. Scurlock contеnds the mended that put Gautreaux not himself in is, therefore, positions record devoid of competent evi- that could safety threaten the of his contributory negligence (1994), given 6. The opinion instructions & Com. 1 and the recent by district court Appeals conform to the Fifth Third Circuit Court of in Fashauer v. Jury Inc., Pattern Instructions on this Jersey Operations, issue. See Pat- New Transit Rail 57 F.3d Instructions, Cases, Jury (3d Cir.1995). tern Civil U.S. Fifth recognize 1269 While we the fine (West Judges Circuit District Associаtion No. 4.7 work of Professor Force and the astute observa 1995). circuit, tions of our sister settled law of this Circuit, slight such care standard in a case, only changed, Jones Act can absent argument, 7. In its brief and at oral Scurlock Court, by Supreme by action the United States urged slight this court to abandon the care stan- sitting e.g., cases, en banc. FDIC v. contending dard in Jones Act that the Dawson, 1303, (5th Cir.1993), 1307 has evolved cert. standard from this court's blind - denied, -, 2673, U.S. 114 S.Ct. to an 129 аdherence incorrect statement of the law. (1994); Burlington position, L.Ed.2d 809 support In of its Northern R.R. v. an arti- cites scholar, admiralty Way Employees, cle Brotherhood Maintenance Professor Robert of School, (5th Cir.1992), denied, Force of Tulane Law F.2d Risk 961 cert. Allocation and Standard Care Under the Jones Act: U.S. 113 S.Ct. 122 L.Ed.2d 173 Care"?, "Slight (1993). Negligence,” "Slight 25 J.Mar.L. only re (“[The negligence would employee’s] testimo- economic Finally, expert eyе. other employer bar, recovery duce, unless This alleged loss. ny quantified Gautreaux’s employee’s at all and negligent were testi- evidence, with Gautreaux’s combined injury.”); of his sole cause was the negligence former returning to his mony he fears that Drilling Corp., v. Sea Boudreaux eye, that he has losing his other position and Cir.1970). Nonetheless, a Jones education, has grade only a tenth slightest for even employer is liable Act most оf on boats on and worked trained been seaman-plaintiffs burden and the negligence, supports life, sufficiently his work “featherweight.” causation is proving of lost the issue to submit court’s decision Wall, v. Transp. Assocs. River jury. wages to the Haynie Corp. future Cir.1993); Zapata n. 4 cert. Arthur, 113 S.Ct. 509 U.S. duty” doctrine “primary Walker 2. The earlier, (1993). As indicated L.Ed.2d claim is argues Gautreaux’s plain with the Jones confronted when in Walker enunciated by the doctrine barred burden, judgment ‍​​​​​‌​‌‌​​‌‌‌‌‌‌‌​​​‌‌‌‌‌‌‌​​​‌​​‌‌​‌‌‌‌‌‌​‌​‌‌‍as a “featherweight” tiffs (2d F.2d 772 Lykes Bros. S.S. there appropriate when law is matter of judg entitled to Cir.1952), that it was such sup probative facts complete absence is a the issue of law on a matter ment as Hughes, position. porting the nonmovant’s con holding has been 93; Drill liability. Walker's v. Penrod Bommarito 68 F.3d at ing Corp., who that a seaman breaches mean strued to evidence Thus, record contains because he assumed employer, which owed slightly at least that Scurlock may not recover employment, accepting to Gau negligence contributed its is the sole if such breach employer from his refusal injuries, the district court’s treaux’s Peymann v. injury. of the seaman’s cause liability from the question of to take (1st Cir.1974), Corp., 507 F.2d Perini proper. denied, 421 95 S.Ct. (1975). Accordingly, Scurlock L.Ed.2d Damages Cl recovery be is barred argues Gautreaux’s findings, we re factual Like other responsi ship’s officer is master cause the damages for clear jury’s finding of view Gau operation of the vessel. for the safe ble Drilling Myers v. error. Griffin-Alexander forgot duty because he breached treaux Cir.1990) (5th (quot Co., F.2d unloading during towing Co., the wires to release Drilling ing v. Diamond M Wood thereby creating strain excessive operations, F.2d 1069, 103 L.Ed.2d 947 S.Ct. the causing the failure of and the on wires however, (1983)). If, jury award is re “a winch, response in which towing electric through thе indirectly conduit viewed such a operated the winch in negligently he for new to a response motion court’s trial injury. cause himself manner toas the propriety of damages, it is the on trial Kelley v. distinguish attempts to Scurlock jury’s decision than judge’s action rather (7th F.2d 1027 Cir. Transp. Sun of discre Thus the abuse is reviewed. that 1990), v. Illinois Cent. Kendrick and applies.” Stokes Gulf of review standard tion Cir.1982), R.R., both F.2d 341 Corp., Georgia-Pacific Davis, Cir.1990). Esposito complete bar rule See also Walker’s which denounced reduction, F.3d as fault proportionate in favor cap in which the embracing the scenario damages jury’s attacks the Scurlock unreasonably unsafe condi tain creates fronts, seeking reversal on two award proceeds to encoun negligently and then for new itsof motion court’s denial district ar it, injuring Initially, thereby himself. Scurlock ter these on issues. trial jury to proper if it for gues was may lend jurisprudence Our on lost issue, jury’s verdict decide that contention support to Scurloek’s some light of the excessive was future recovery if barred from should be Gautreaux future as to Gautreaux’s lack of evidence injury, caused his conduct com Additionally, his alone employability. Scurlock jury, by the from completely free returned employer plains was that the amount and his evidence, by the $500,000, unsupportеd Kendrick, at 344 e.g., fault. put figure economist Gautreaux’s at endure both functional and cosmetic disabili- $400,000 just suggested over and his counsel ties for the Also, rest of his life. while $300,000 $325,000 was sufficient. Accord- recuperating from his surgery, second Gau- jury’s ingly, because the verdict inwas ex- placed treaux was on extraordinarily strong evidence, of that cess offered into it was medication painful to combat headaches and speculatiоn based and a new trial should other discomfort associated injury. with his granted. Finally, have been be- Further, Gautreaux suffers from moderate lieves that the final award after the district depression as a result of the eye. loss of his $400,625, granted a remittitur Finally, allegedly improper comments of excessive, figure, economist’s is still and that counsel single Gautreaux’s consist of ques- granting of the remittitur anwas admis- tion asked to Archie Scurlock about whether by jury sion court that district ver- unfounded, dict was such threatened to that the award blackball Gautreaux. The should have been reversed or further re- matter rested with Archie Scurlock’s answer duced. not; that he did no inquiry further argu- ment on the award the matter followed. defends grounds grade that he has a tenth edu- pain Awards of and suffering are job training cation and his only is as a vessel fact-specific depend great to a extent on еmployee, that injuring his fear of himself or the fact-finder’s observation of plaintiff enough justify others real re- subjective and its determination of the turning previous employment, to his that the amount experts medical needed to achieve full compensation. testified he would have diffi- culty docking Johnson, monoscopic due to his vessels such, 845 F.2d at 1357. As vision and peripheral depth loss of vision and great court is accorded latitudе perception, that the award after remittitur assessing damages. Parks v. Dowell Div. of equaled suggested by economist, that Corp., Dow Chemical that the reached its verdict view- after Cir.1983). Considering the record in this ing all Having the evidence. reviewed the case, $300,000 a jury award of past for record, say we cannot that the district court pain future and suffering does not seem abused its in denying discretion Scurlock’s clearly erroneous, nоr did the district court motion, especially new trial considering it abuse its in denying discretion Scurlock a conditioned its denial on accep- Stokes, new trial. See at 769. Ad $100,000. of a tance remittitur almost ditionally, because the district court inis Second, argues position better prejudice to evaluate the flow $300,000 pain award suffering ing from improper counsel’s comments dur excessive, also the entire award was ing trial and to dеtermine the most effective driven improper comments Gau response trial, ensure a fair trial new treaux’s counsel inciting aimed at passion will not be granted, even if counsel’s remarks prejudice jury. of the Scurlock asserts improper, are considering unless after that pain Gautreaux’s suffering was brief and never excessive or record as excruciating, as he a whole the court concludes that care, рrompt received surgery medical had injustice manifest letting would result from basis, out-patient on an sought hospi never the verdict stand. Johnson v. Ford Motor discomfort, pain talization for or and reached Co., 573, Cir.1993). 582 Be only full medical cure four in months. Fur cause Gautreaux’s counsel asked a sin ther, Scurlock contends the award influ was gle question, to which Archie Scurlock re groundless question enced posed ‍​​​​​‌​‌‌​​‌‌‌‌‌‌‌​​​‌‌‌‌‌‌‌​​​‌​​‌‌​‌‌‌‌‌‌​‌​‌‌‍by sponded negative in thе and about which no Gautreaux’s counsel to Archie con made, further comment was prej substantial cerning threats “blackballing” udice was not caused Scurlock and a new if proceeded with this lawsuit —an accusa trial necessary. was not tion to which Scurlock claims it respond. allowed to D. liability Limitation of fact, In undergone Gautreaux has three The district court denied limita- surgeries, eyeball out, had scooped is tion, finding forced to that prosthetic eye wear a evidence established which must be cleaning frequently, Scurlock, removed for owner, that and must negligently vessel KING, POLITZ, Judge, and Chief Before opera- proper in the train Gautreaux

failed to HIGGINBOTHAM, JOLLY, GARWOOD, failure and that winch of the electric DUHÉ, JONES, SMITH, Fur- injuries. DAVIS, part caused BARKSDALE, that Seur- ther, WIENER, indicated M. EMILIO the district of its actions for the BENAVIDES, accountable DeMOSS, GARZA, lock Scurlock, owner, Archie managing offiсer DENNIS, STEWART, PARKER and train Gautreaux. properly failed to who Judges. aof liability of the owner The involving the injury any loss or for

vessel REHEARING FOR ON SUGGESTION limited to value can be vessel BANC EN loss oc provided the freight, and its vessel July “privity or owner’s the vessel without curred 183(a). § The U.S.C.App. knowledge.” THE COURT: BY seeking limitation bears owner vessel in active service or the court privity A lack of member proving its burden suggestion injury-causing poll conduct requested a knowledge having majority Contrac Cupit v. McClanahan rehearing en banc condition. (5th Cir.1993), Inc., cert. tors, having voted judges with active service — -, denied, 114 S.Ct. banc, rehearing en granting a favor (1994); & B Boat v. C Verdin L.Ed.2d this cause shall IT IS ORDERED Cir.1988). For Co., argu- with oral by the court en banc reheard limitation, owner’s a vessel purposes of to be fixed. a date hereafter ment on participates personally may if it privity ‍​​​​​‌​‌‌​​‌‌‌‌‌‌‌​​​‌‌‌‌‌‌‌​​​‌​​‌‌​‌‌‌‌‌‌​‌​‌‌‍arise for the briefing schedule specify a Clerk will produсes conduct in the supplemental briefs. filing of Producing v.Co. injury, Pennzoil Offshore Inc., Cir. Express, owner 1991), corporate vessel and a knowledge itsof privity or

charged with the authority scope of

managing whose officers part of the busi of that supervision

includes occurred, Brunet v. the loss ness out of which Pipeline Gas United 348; (5th Cir.1994); Patton- Cupit, 1 F.3d at (In Complaint Tully Transp. Co. v. re Ratliff UNION LIBERTIES CIVIL AMERICAN Co.), 797 F.2d Patton-Tully Transp. al., MISSISSIPPI, et Plain OF INC. lia limitation of “In the Appellants, tiffs-Appellees/Cross findings context, court’s bility the distriсt v. unseaworthiness, privity, negligence, about appeal to considered on knowledge are KING, Plaintiff-Appellant/Cross Edwin under subject to findings review be factual Appellee, clearly standard.” erroneous Self Co., 832 F.2d Dredge Dock Lakes Great al., Governor, FORDICE, et Kirk 100 L.Ed.2d S.Ct. Defendants-Appellees. Jones, (1988). Lines Farrell Inc. See also No. 94-60425. The district 530 F.2d 7 acknowledged finding privity err did not Appeals, Court United States concluding part and thus of Scurlock Fifth Circuit. liability. limit its not entitled to June 1996. CONCLUSION III. discussion, the dis- foregoing Based on the is, aspects, in all AF-

trict court’s

FIRMED.

Case Details

Case Name: Charles D. Gautreaux v. Scurlock Marine, Inc.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jul 17, 1996

Citation: 84 F.3d 776

Docket Number: 95-30250, 95-30272

Court Abbreviation: 5th Cir.