Aycock v. Ensco Offshore Co.

833 So. 2d 1246, 2002 La.App. 3 Cir. 0853, 2002 La. App. LEXIS 3926, 2002 WL 31829258
CourtLouisiana Court of Appeal
DecidedDecember 18, 2002
DocketNo. 02-0853
StatusPublished
Cited by5 cases

This text of 833 So. 2d 1246 (Aycock v. Ensco Offshore Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aycock v. Ensco Offshore Co., 833 So. 2d 1246, 2002 La.App. 3 Cir. 0853, 2002 La. App. LEXIS 3926, 2002 WL 31829258 (La. Ct. App. 2002).

Opinions

hAMY, Judge.

The plaintiff filed suit under the Jones Act and general maritime law, seeking recovery for injuries sustained while working aboard an oil rig. A jury found that the defendant offshore company was negligent and that the vessel was unseaworthy. However, the jury also found the plaintiff negligent and the plaintiffs negligence to be a legal cause of the injuries sustained. The plaintiff was apportioned ninety per[1248]*1248cent of the fault. General damages, past lost earnings and future loss of earnings were awarded. The plaintiff appeals. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiff, Carl Aycock, was an employee of ENSCO Offshore Company, working as a floorhand, at the time of the September 1997 work-related accident at issue. Mr. Aycock filed suit alleging that he sustained serious lower back injuries when he was struck from the rear by the lead tongs he was operating. He contends that the accident occurred after he released the tongs to assist a coworker unlatch backup tongs that had become jammed. He argues that ENSCO is responsible for the injuries under general maritime principles and the Jones Act due to what he contends were improperly hung tongs, which resulted in excessive swing, and a coworker not seeing what he should have seen and failing to prevent the tongs from striking him in the back. ENSCO denied responsibility, contending that the tongs causing the accident are designed to “swing” so that they may be operated by a single employee and that the operator is responsible for their control. At the time of trial, Mr. Aycock had not returned to work. He had undergone a three-level anterior lumbar fusion. Mr. Aycock’s medical expenses were provided by ENSCO.

The matter proceeded to trial, with a jury finding ENSCO liable due to Jones Act negligence and general maritime principles of unseaworthiness. ENSCO’s 12liability was allocated equally between these two theories. The jury also found the plaintiff comparatively negligent in causing his own injuries. Ninety percent of the fault was apportioned to the plaintiff, the remaining ten percent was apportioned to ENSCO. The jury awarded the following damages: $150,000 for past physical and mental pain and suffering; $50,000 for future physical and mental pain and suffering; $110,000 for loss of earnings to trial; and $33,000 for future loss of earnings. No award was made for future medical expenses.

The plaintiff filed a “Motion for Judgment Not Withstanding the Verdict, New Trial, and/or Additur.” In particular, the plaintiff argued that the $33,000 awarded by the jury for loss of future earnings was less than the lowest reasonable amount that could have been awarded and that the ninety percent apportionment of fault for his actions/inactions was excessive. The motion was denied.

The plaintiff appeals, assigning the following as error:

1. The jury’s finding the appellant 90% at fault is manifestly erroneous and not supported by the evidence presented at trial.
2. The trial court erred in denying the appellant’s motion for new trial and judgment notwithstanding the verdict.
3. The jury erred in awarding the appellant $33,000 for loss of future earnings.
4. The trial court erred in denying the appellant’s motion for additur.

Discussion

Allocation of Fault

The plaintiff sought recovery under general maritime principles of unseaworthiness and negligence under the Jones Act. On appeal, he questions both the jury’s determination that he was comparatively negligent and that, if negligent, his conduct was deserving of 90% of the fault for the accident. His Jones Act and | aunseaworthiness claims are premised on his allegation that his coworker, roustabout Thomas Macheck, was responsible [1249]*1249for the spinner wrench at the time of the accident and that he should have seen the swinging tongs and signaled a warning so as to prevent the blow. He also contends that the tongs were improperly hung so as to create excessive swing when released. He contends that in light of the jury’s determination that ENSCO was responsible under both theories, equally apportioned between the two, that his actions in releasing the lead tongs to assist the rear tong operator should not be viewed as negligent. Accordingly, he asserts error in the finding of fault, the apportionment of fault, and in the denial of the JNOV.

The Jones Act, 46 U.S.CApp. § 688(a), provides:

Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.

In Foster v. Destin Trading Corp., 96-803 (La.5/30/97); 700 So.2d 199 (on rehearing), the Louisiana Supreme Court noted that, although an employer’s liability may extend to all personal injuries arising during a seaman’s employment, proof of negligence is essential. Referencing the applicable federal jurisprudence, the supreme court explained:

Such negligence may arise in many ways including the failure to use reasonable care to provide a seaman with a safe place to work, the existence of a dangerous condition on or about the vessel, or any other breach of the duty of care. See Davis v. Hill Engineering, Inc., 549 F.2d 314, 329 (5th Cir.1977); 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 6-21, at 312 (2d ed.1994). The duty of care owed by an Lemployer under the Jones Act is that of ordinary prudence, namely the duty to take reasonable care under the circumstances. Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 335-36 (5th Cir.1997). The seaman bears the evidentiary burden of proving that a breach of the duty owed by the employer was a cause of his injuries.

Id. at p. 3-4; 208.

Additionally, an owner of a vessel has an absolute duty, one not requiring negligence, to provide a seaworthy vessel. Vendetto v. Sonat Offshore Drilling Co., 97-3103 (La.1/20/99); 725 So.2d 474. The Louisiana Supreme Court has explained as follows with regard to this theory of recovery:

To state a cause of action for unseaworthiness, the plaintiff must allege an injury “caused by a defective condition of the ship, its equipment or appurtenances .... Members of the crew of a vessel are also warranted as seaworthy, and there may be liability for ... negligent orders, or for utilizing an understaffed or ill-trained crew.” 1 Thomas J. Schoenbaum, Admiralty and Maritime Law

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Bluebook (online)
833 So. 2d 1246, 2002 La.App. 3 Cir. 0853, 2002 La. App. LEXIS 3926, 2002 WL 31829258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aycock-v-ensco-offshore-co-lactapp-2002.