Day v. Touchard, Inc.

712 So. 2d 1072, 1998 WL 265001
CourtLouisiana Court of Appeal
DecidedMay 27, 1998
Docket97-CA-1180
StatusPublished
Cited by6 cases

This text of 712 So. 2d 1072 (Day v. Touchard, Inc.) 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
Day v. Touchard, Inc., 712 So. 2d 1072, 1998 WL 265001 (La. Ct. App. 1998).

Opinion

712 So.2d 1072 (1998)

Verl DAY and Betty L. Day
v.
TOUCHARD, INC.

No. 97-CA-1180.

Court of Appeal of Louisiana, Fifth Circuit.

May 27, 1998.

*1073 Eugene A. Ledet, Jr., Alexandria, for Appellants Verl Day and Betty L. Day.

James R. Silverstein, Frilot, Partridge, Kohnke & Clements, New Orleans, for Appellee Touchard, Inc.

Wayne G. Zeringue, Jr., New Orleans, for Intervenor Texaco Inc. and Insurance Company of North America.

Before DUFRESNE, WICKER and CANNELLA, JJ.

CANNELLA, Judge.

Plaintiffs, Verl Day and Betty Day, his wife, appeal from the dismissal of their personal injury lawsuit against defendant, Touchard, Inc., for injuries which Verl Day incurred when he fell aboard an offshore transport vessel owned by defendant. The workers compensation intervener, Texaco, Inc. (Texaco), also appeals from the judgment. We affirm.

Verl Day was employed by Texaco as a compressor mechanic stationed at Texaco's Garden Island Bay facility in Plaquemines Parish, Louisiana. On December 7, 1990, he was instructed to make repairs at an offshore platform located in South Pass, Block 75, in the Gulf of Mexico (Gulf). Transportation was provided by defendant on the M/V EVELYN, a 65 foot crew boat. The vessel was time chartered by Texaco for the transport of its employees. During the trip to the offshore facility, Verl Day fell in the wheelhouse and injured himself.

Plaintiffs filed suit on November 8, 1991 for Verl Day's injuries and for Betty Day's loss of consortium. On May 12, 1994 Verl Day was denied an attempt to supplement his lawsuit to assert a cause of action under the General Maritime law.[1] A jury trial was held on May 16, 17, 18, and 19, 1994. Following the trial, the jury found that defendant was not negligent. The trial judge subsequently rendered a judgment in conformity with the jury verdict and dismissed plaintiffs' suit. The trial judge assessed costs against plaintiffs.

On appeal, Verl Day asserts that the jury was manifestly erroneous in concluding that defendant was not negligent and that he is entitled to damages.[2]

Texaco also appeals and aligns itself with Verl Day for purposes of the appeal. Texaco adopts Verl Day's arguments and asks for reimbursement of the stipulated medical expenses and workers compensation payments made to and for his benefit in the total amount of $29,133.17.

*1074 Thomas Cutchall, the licensed Captain and operator of the boat, was 21 years old when the accident happened. He had been working for defendant for five years and operated the crew boat for two years. He had a Masters, or Captain's, license from the United States Coast Guard. Photographs of the crew boat show that the interior has two rows of bench-type seats separated by an aisle. Life jackets are stored above the seats. A restroom is located in the back of the vessel on the left side of the aisle. The wheelhouse, located in a raised area in front of the passenger compartment, is entered from three steps and contains only one seat.

Captain Cutchall testified that Verl Day and another worker, Robert Griffin[3] (Griffin) were transported to his boat from another smaller "John boat". When they got on board, the two put their tool boxes on the back deck of the vessel. Besides these three people, a deckhand, Ray Knight (Knight), was also on board. Captain Cutchall testified that the trip from the dock to Main Pass 75 was about 1½ hours. They were in protected waters for 90% of the trip (about 1 hour and 10 minutes) before entering the Gulf. The weather was typical for winter. Winds were from the north, at about 12-20 miles per hour and the seas were about 6 feet high. At the time of the accident, the vessel had been in the Gulf for about 10 minutes. The depth of the water was approximately 12 feet. As the water got deeper, Captain Cutchall said that the ride gets smoother because the waves are farther apart.

Captain Cutchall was seated in the wheelhouse operating the vessel when Verl Day left his seat and entered the wheelhouse. He suggested to the Captain that the water might be too rough. Captain Cutchall told him that the seas would soon be calming down and that he should take a seat. Just then, he heard Verl Day slip and fall. He did not remember asking Verl Day to hand him a bottle of window cleaner or any other thing. Captain Cutchall stated that he did not see Verl Day fall, but it happened right above the stairs in the wheelhouse. He did not know whether these events took place within 30 seconds or a minute. Captain Cutchall, Griffin (who had been sleeping) and Knight all went to Verl Day's aid. They picked him up and placed him on a seat. Captain Cutchall then reported the accident to Mike Crane, Verl Day's supervisor, telling him that he appeared to be hurt and that he wanted to return to shore. Captain Cutchall was instructed to return and Verl Day was taken back to Garden Island Bay. Captain Cutchall did not recall what part of Verl Day's body was hurt.

Captain Cutchall testified that Texaco had a rule that passengers are to remain seated while the vessel is in transit. No one is supposed to enter the wheelhouse to speak with the operator. Captain Cutchall thought that it was a good rule to prevent accidents. He said that if the vessel is in rough water it was difficult to stand. Captain Cutchall said that he had transported Verl Day on other occasions and that he, before, had never left his seat to come into the wheelhouse. He said the rule was that no one was supposed to go into the wheelhouse during transport, but sometimes the rule got bent in order to use the radio or if someone wanted to tell him where to drop off a person. Passengers also left their seats to use the restroom. He always told them to sit back down when they were finished.

Captain Cutchall testified that the wheelhouse had port (left) and starboard (right) doors leading to the outside deck. The port door "for sure had a leak in it." He referred to the leak as a "small seepage, a very small seepage." Captain Cutchall and/or others had tried to fix it, but were unsuccessful. He did not believe that the starboard door leaked, but indicated that it might have. At any rate, the leaking door or doors allowed a very small amount of water, "like a fresh mopped floor" to accumulate on the linoleum floor. He further noted that the windows and doors in the passenger section were watertight and did not leak.

*1075 Verl Day was 60 years old at the time of trial, married, with grown children. His history included Navy service and a long work record performing manual labor in the oilfields of Wyoming and Louisiana. At one time he also had a Master's license, but he let it go after starting work with Texaco in 1967. Verl Day obtained some college credits, but did not finish. He was promoted to compressor mechanic in the early 1980's and was responsible for maintaining and repairing several compressors. He stated that the machines were bigger than the courtroom. The Main Pass 75 platform was the only one in open water, the rest were in protected waters. Verl Day testified that he carried his personal tools up steps to the compressor. The boxes weighed about 100-150 pounds. The heavier items are lifted by crane.

Verl Day testified that the day of the accident was the first of seven work days. The testimony of Verl Day and Captain Cutchall, concerning the events leading to the accident, were similar. Verl Day said that many times he had ridden on the M/V Evelyn prior to the accident, with Captain Cutchall or his relief. He said that he and the helper, Griffin, were first transported on the "jo-boat".

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Cite This Page — Counsel Stack

Bluebook (online)
712 So. 2d 1072, 1998 WL 265001, Counsel Stack Legal Research, https://law.counselstack.com/opinion/day-v-touchard-inc-lactapp-1998.