Corliss v. ELEVATING BOATS, INC., ABC

599 So. 2d 434, 1992 WL 97078
CourtLouisiana Court of Appeal
DecidedMay 12, 1992
Docket91-CA-1768
StatusPublished
Cited by15 cases

This text of 599 So. 2d 434 (Corliss v. ELEVATING BOATS, INC., ABC) 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
Corliss v. ELEVATING BOATS, INC., ABC, 599 So. 2d 434, 1992 WL 97078 (La. Ct. App. 1992).

Opinion

599 So.2d 434 (1992)

Fred CORLISS,
v.
ELEVATING BOATS, INC., ABC Insurance Co., Continental Co. and XYZ Insurance Co.

No. 91-CA-1768.

Court of Appeal of Louisiana, Fourth Circuit.

May 12, 1992.

*435 Robert W. Drouant, New Orleans, for plaintiff/appellee.

Charles Hooker, Braithwaite, for defendants/appellants.

Before PLOTKIN, JONES and WALTZER, JJ.

WALTZER, Judge.

Defendant Elevator Boats, Inc. (EBI) appeals a trial court judgment awarding the plaintiff Fred Corliss $80,033.34 and dismissing the defendant Conoco. Corliss received $1,556.34 in outstanding medical expenses, $3,477.00 in lost wages and $75,000.00 in general damages, for damages he sustained from a knee injury on January 27, 1985, when he slipped in shin-high sludge of approximately 400 gallons of mud, saltwater, and hydraulic oil, on the deck of the M/V JOHN REDMAN ELEVATOR, which was owned by EBI. The defendant Conoco has not appealed. Plaintiff has answered the appeal raising several specifications of error.

Defendant's Specification of Error # 1

Defendant-appellant argues that the finding that the M/V JOHN REDMAN ELEVATOR was unseaworthy because of a leaking fitting in a hydraulic line was contrary to the weight of the evidence. The ship's log clearly indicates that the vessel suffered hydraulic leaks, leaks from the rudder post, and bilge flooding on a recurring basis for six weeks prior to the accident. These conditions were documented on the log by two shipmasters other than the plaintiff. The district court correctly found the vessel to be unseaworthy, because oil and water in the bilge had to be removed manually. A properly working *436 bilge pump, fitted with the requisite belts, was not installed until February 14, 1985. The leaking fitting, which in a foreseeable and unbroken chain of events caused the accident, rendered the vessel unseaworthy on January 27, 1985. This specification of error is without merit.

Defendant's Specification of Error # 2

Defendant's second specification is that the trial judge erred in refusing to allow defense witness Ronnie Shepperd to testify. Shepperd was listed as a witness on the pretrial order, but plaintiff was never furnished the address of this witness, nor was he told of his potential whereabouts. The witness simply showed up on the day of trial to testify.

Additionally, defendant asserts that the district court erred in disallowing the introduction of plaintiff's military records into evidence for impeachment purposes. Counsel never received a copy of the military records, although counsel had previously agreed in depositions to furnish the records for inspection and perusal upon receipt. Defense counsel engaged in a repeated pattern of violation of discovery, i.e. refusing to forward copies of military records and failing to disclose Shepperd's whereabouts prior to trial. The trial court judge has considerable discretion in the admission of evidence and testimony of witnesses under these circumstances, and properly exercised his discretion in light of defendant's repeated abuse of discovery. There is no merit to these assignments of error.

Defendant's Specification of Error # 3

Next, defendant alleges error because plaintiff was permitted to recover damages due to an accumulation of hydraulic oil in the bilge of the vessel, and because the accumulation resulted when plaintiff was tightening the broken fitting. Defendant asserts that plaintiff had the sole responsibility for maintaining the vessel and that his duties included the cleaning of the vessel bilge, identifying leaks, and inspecting the vessel on a daily basis. Defendant asserts that it was the master's inaction in face of the breakage that caused the unseaworthiness of the vessel and resulted in the accident.

The accumulation of approximately 400 gallons of hydraulic oil, mud, and saltwater resulted from the leaking rudder post and leaking hydraulic system on several occasions prior to and after the incident at issue. Thus, the breaking of the fitting was not the cause of the accumulation. This specification of error is meritless.

Defendant's Specification of Error # 4

EBI asserts that the trial judge erred when he found that the plaintiff suffered a tear of the right medial meniscus while on the vessel. Defendant claims that the initial attending physician, Dr. Emile Bertucci, found to the contrary. The record reflects that Dr. Emile Bertucci, EBI's company physician, referred plaintiff to an orthopedic surgeon, Dr. Milton Rosenkrantz. Dr. Bertucci is listed as the admitting physician on plaintiff's surgical record. Additionally, the operative notes confirm the diagnosis of torn right medial meniscus. EBI argues that since Dr. Bertucci did not make the diagnosis initially, some subsequent unproven or unknown additional accident or other incident caused the tear. There is no proof of such an incident. Dr. Bertucci followed prudent, sound medical practice in referring the matter to a specialist before confirming the diagnosis. The record reflects that the diagnosis was not confirmed until the surgery on the knee was performed. The admit papers list a "suspected" right medial meniscus. The exact nature of the injury could not be ascertained until the knee was opened up. Defendant's fourth specification of error is without merit.

Defendant's Specification of Error # 5

EBI complains that the trial judge allowed Mr. Wilfred Gallardo to testify as a safety expert in spite of defendant's timely refusal to strike his testimony. The trial court has great discretion in allowing expert testimony. In fact, there was no harm suffered by defendants when Gallardo testified.

Prior to this witness's testimony, the trial judge stated for the record:

*437 "I'm going to hear him but I don't believe him and he knows it".

The trial court was certainly capable of determining the weight he would give to Gallardo's testimony. Obviously, Gallardo's testimony added nothing to the facts and ultimate resolution of the case. This assignment of error lacks merit.

Plaintiff's Assignment of Error # 1

Corliss complains that the trial court erred in excluding the expert testimony of Melville Wolfson on the issue of lost earning capacity. The trial judge denied the admission of Wolfson's testimony on the basis of the defendant's objection:

"As to Mr. Wolfson, this man was seen by—every doctor who has seen this man says he has no functional disability, he can engage in any activity which he has engaged in the past. There is no basis for a future wage loss calculation which Mr. Wolfson has done. The man went to work for Blue Streak right after Elevating Boats in September of 1985 and at an increased wage. We were paying him sixty-five, Mr. Dean was paying him $65 and Blue Streak has seventy, and he has worked thereafter at a number of different employers representing to them that he was not disabled and he hasn't claimed to Your Honor that he changed those employments because of continuing disability. He does claim continuing pain and suffering for which he continued to see the doctor, but there's no basis, I submit, for putting into the record of this case, any opinions as to future wage loss."

The law allows not merely for loss of future earnings, but rather for loss of earning capacity.

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Bluebook (online)
599 So. 2d 434, 1992 WL 97078, Counsel Stack Legal Research, https://law.counselstack.com/opinion/corliss-v-elevating-boats-inc-abc-lactapp-1992.