Barry v. Plaquemine Towing Corp.

698 So. 2d 1017, 1997 WL 451353
CourtLouisiana Court of Appeal
DecidedAugust 4, 1997
Docket96 CA 0979
StatusPublished
Cited by3 cases

This text of 698 So. 2d 1017 (Barry v. Plaquemine Towing Corp.) 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
Barry v. Plaquemine Towing Corp., 698 So. 2d 1017, 1997 WL 451353 (La. Ct. App. 1997).

Opinion

698 So.2d 1017 (1997)

Charles Robert BARRY, III
v.
PLAQUEMINE TOWING CORPORATION.

No. 96 CA 0979.

Court of Appeal of Louisiana, First Circuit.

August 4, 1997.
Rehearing Denied September 23, 1997.

*1018 Robert H. Schmolke, Baton Rouge, for Plaintiff-Appellee Charles Robert Barry, III.

Alan K. Breaud, Lafayette, for Defendant-Appellant, Plaquemine Towing Corp.

Before LOTTINGER, C.J., and LeBLANC, FOIL, FOGG and FITZSIMMONS, JJ.

LOTTINGER, Chief Judge.

Plaquemine Towing Corporation appeals the judgment of the trial court finding that plaintiff, Charles Robert Barry (Barry), a Jones Act seaman, was injured in the course and scope of his employment. We reverse.

FACTS

On April 25, 1993, the date of the alleged accident, Barry was employed by Plaquemine Towing as a deckhand. Barry was one of a two man crew assigned to the M/V Robert Banta, with the other crew member being the captain of the vessel, Thomas Reid. On April 25, 1993, Barry came on duty at 6:00 p.m. and was scheduled to work a twelve hour shift. At approximately 7:00 p.m., Captain Reid positioned the M/V Robert Banta adjacent to a barge to continue pumping operations on the barge.

At trial, Barry testified that, after pulling up to the barge, he complied with the captain's instruction to tie only a headline to the barge. According to Barry, the tugboat was secured to the barge at a 45 degree angle leaving a span of approximately three to four feet between the two vessels. Barry then followed the captain's instruction to proceed from the deck of the tugboat to the deck of the barge. When Barry landed on the barge, he twisted his ankle, fell to the deck and landed on his back. Several hours after the incident, the captain noted in the M/V Robert Banta's log that Barry "slipped and fell" on the barge, and that Barry stated that he was alright and continued working. The captain further noted that at approximately 1:30 a.m. Barry refused to clean the engine room due to back pain.

Following this incident, Barry continued to work for several days to complete his ten day shift. Before the start of his next shift, Barry left Plaquemine Towing for a better employment opportunity.

At trial, Barry testified that about a month after the incident, his ankle began to swell. He stated that the swelling got worse causing him to have trouble walking. On July 22, 1993, approximately three months after the incident, Barry sought medical treatment for his ankle and back from orthopedic surgeon, Dr. Allen Johnston. Barry's right ankle was the primary focus of his first visit with Dr. Johnston. Dr. Johnston testified that he aspirated a rather large cystic area on the outside of Barry's ankle. Dr. Johnston also examined Barry's low back finding some mild limitations in range of motion but normal strength, reflexes and sensation. Dr. Johnston recommended physical therapy for Barry's back.

Regarding the ankle, Dr. Johnston instituted a conservative treatment plan calling for restricted activities. When Barry's symptoms did not subside, Dr. Johnston fitted him with a leg brace to alleviate some of the pain and discomfort. None of these conservative measures provided Barry with any appreciable relief, and Dr. Johnston performed surgery on his ankle to remove what he believed to be a ganglion cyst. Following surgery, Dr. Johnston discovered that his original diagnosis of a ganglion cyst was incorrect and that Barry's problems resulted from a deep micro-bacterial infection. Since beginning treatment with Dr. Johnston, the bones in Barry's ankle have undergone significant deterioration. This deterioration will continue without further surgery.

At trial, Dr. Johnston related the infection in Barry's ankle to the slip and fall on the barge. When questioned about the causal relationship between Barry's back problems and the accident, Dr. Johnston testified that Barry's low back and hip symptoms were of a mechanical nature resulting directly from his altered gait.

Following trial, the trial judge determined that Plaquemine Towing was at fault in causing Barry's accident and that Barry met his burden of proving a causal connection between the accident and his injuries. Judgment was granted in favor of Barry and *1019 against Plaquemine Towing for a total of $254,515.00. Plaquemine Towing now appeals.

STANDARD OF REVIEW

The Louisiana Supreme Court has determined that Louisiana courts of appeal shall apply the state manifest error standard of review in general maritime and Jones Act cases. Milstead v. Diamond M Offshore, Inc., 95-2446, p. 11 (La. 7/2/96); 676 So.2d 89, 96. Under this standard of review, the appellate court may not set aside a finding of fact by the trial judge or jury unless it is manifestly erroneous or clearly wrong. Ambrose v. New Orleans Police Department Ambulance Service, 93-3099, 93-3110, 93-3112, p. 8 (La. 7/5/94); 639 So.2d 216, 220. That does not mean that the reviewing court can virtually never upset the trial court's findings. Id. at 221. After giving great deference to the factfinder, the reviewing court has every right to determine whether the trial court's verdict "was clearly wrong based on the evidence, or clearly without evidentiary support." Id.

In written reasons for judgment, the trial judge stated:

Dr. Johnston testified that as a result of the slip and fall accident, the plaintiff suffered an acute injury to his right ankle, and acute injury to his low back which has evolved into a chronic condition as a direct result of [the] ankle injury, and developed a bacterial marinum infection in his right ankle which has resulted in the continuous deterioration of the bones in the area of the lower leg and foot.
In proving a causal connection between an accident and subsequent injuries, a plaintiff is aided by the legal presumption that a medical condition producing disability is presumed to have result[ed from] an accident, if before the accident the injured person was in good health, but commencing with the accident, the symptoms of the disabling condition appear and continuously manifested themselves afterward. This is to be understood with the condition that the medical evidence shows there to be a reasonable possibility of a causal connection between the accident and the disabling condition. Housely [Housley] v. Cerise, 579 So.2d 973, 980 (La.1991). Dr. Johnston's testimony more than adequately proves [the] causal connection between the plaintiff's accident and his resulting injuries.

For the following reasons, we find that Dr. Johnston's testimony did not show, by a reasonable possibility, the causal connection between Barry's slip and fall and his existing micro-bacterial infection.

Dr. Johnston gave the following testimony to support his conclusion regarding the causal relationship between Barry's injuries and the accident. First, Dr. Johnston repeatedly stated that the type of bacteria causing the infection in Barry's ankle are found in brackish water. Dr. Johnston defined brackish water as "[w]ater where fresh water meets salt water." When questioned about where Barry came into contact with brackish water, Dr. Johnston stated, "I would assume that a barge that floats up and down the Mississippi River, and that's an assumption on my part, may have brackish water in or about any place on that barge. I mean, that would be a likely place for me to think that you might get a micro-bacterial infection."

Upon further questioning, Dr. Johnston stated that he was unaware that Barry was an avid hunter and fisherman.

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Cite This Page — Counsel Stack

Bluebook (online)
698 So. 2d 1017, 1997 WL 451353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barry-v-plaquemine-towing-corp-lactapp-1997.