Duerden v. PBR Offshore Marine Corp.

471 So. 2d 1111, 1985 La. App. LEXIS 8988
CourtLouisiana Court of Appeal
DecidedJune 26, 1985
Docket84-525
StatusPublished
Cited by10 cases

This text of 471 So. 2d 1111 (Duerden v. PBR Offshore Marine 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
Duerden v. PBR Offshore Marine Corp., 471 So. 2d 1111, 1985 La. App. LEXIS 8988 (La. Ct. App. 1985).

Opinion

471 So.2d 1111 (1985)

David DUERDEN, Plaintiff-Appellant,
v.
PBR OFFSHORE MARINE CORPORATION, et al., Defendant-Appellee.

No. 84-525.

Court of Appeal of Louisiana, Third Circuit.

June 26, 1985.

*1112 Jones, Jones and Alexander, Jennifer Jones Bercier, Cameron, for plaintiff-appellant.

Burke and Mayer, William B. Schwartz, New Orleans, for defendants-appellees.

Before FORET, LABORDE and YELVERTON, JJ.

FORET, Judge.

The plaintiff, David Duerden, filed suit against PBR Offshore Marine Corp. (PBR), The Superior Oil Company, and their insurers, American Centennial Insurance Company; National Union Fire Insurance Company of Pittsburg, Pennsylvania; Insurance Company of North America; United States Fire Insurance Company; and Ennia, for damages, maintenance and cure, and punitive damages for failure to timely pay maintenance and cure and for failing to correct the unseaworthy condition of the vessels that plaintiff was injured on. After trial on the merits, the jury awarded plaintiff maintenance and cure in the amount of $20.00 per day from October 19, 1982, until the point of maximum cure, but found in favor of the defendants, rejecting the plaintiff's claim of negligence and unseaworthiness. The plaintiff has appealed the judgment of the trial court.

The issues presented in this appeal are that:

(1) The trial court committed reversible error in giving an instruction which was an improper comment on the evidence, and further compounded such error by overemphasizing another aspect of a requested defense charge in an attempt to correct its original error.
(2) The trial judge committed reversible error in allowing defense counsel, following timely objection by plaintiff, to use the Golden Rule Argument in closing statements.
(3) The trial judge erred in restricting plaintiff's examination of expert witnesses.
(4) The verdict is contrary to the law and the evidence.

We affirm the judgment of the trial court.

FACTS

On or about August 16, 1982, plaintiff was injured while in the employ of PBR as an engineer aboard the crewboat M/V PBR 115, owned by PBR and under charter to Superior. Plaintiff had finished cleaning the lazaret area of the crewboat while it was moored at the Superior docks in Cameron, had re-entered the area while the floor was still wet, and fell, striking his lower back on a rudder post located in the lazaret. Plaintiff reported the incident to the captain sometime later, but did not leave the boat until August 20. On August 23, plaintiff consulted Dr. Melvin Bourgeois who, after x-raying plaintiff's back, informed him that he had a congenital and/or developmental condition of his lower back known as spondylolisthesis. Plaintiff was released to return to light duty, but instead chose to take some time off to go to New York to join his wife.

Plaintiff returned to Louisiana approximately one month later and contacted PBR at that time about returning to work. He was assigned to the M/V PBR 161 in October. Prior to returning to the boat, plaintiff was seen by the company physician, Dr. Cecil Clark, who found the plaintiff's condition asymptomatic at the time and released him to return to work. On October 14, 1982, while the PBR 161 was being *1113 docked in Cameron, plaintiff strained his back while working the mooring lines. Plaintiff was hospitalized for this injury until October 19, 1982. He was released to return to light duty work some weeks later, but never returned to work for PBR. This lawsuit was subsequently filed.

ASSIGNMENT OF ERROR NO. 1

The plaintiff complains that the trial court gave an improper instruction to the jury and, after objection, repeated the charge in an attempt to correct the error. The complained of charge was:

"A seaman is not entitled to a deck which is not slippery when wet."

After plaintiff objected and a discussion was had regarding how it should be corrected, the trial court gave the following supplemental charge:

"THE COURT: Now, ladies and gentlemen, in my first reading of instructions to you I gave this sentence; a seaman is not entitled to a deck that is not slippery when wet. I'm going to substitute instead of that sentence I'm going to substitute these sentences. A seaman is expected to cope with risks that are inherent to life on the sea, even on seaworthy vessels. The law places a duty on employers to provide its employees with a reasonably safe place to work; however, employers are not required to furnish the safest possible place to work but one that is reasonably safe."

While the trial court did not instruct the jury to disregard the first charge, we believe that the supplemental charge as given was an adequate correction and sufficient to inform the jury that the first instruction was to be disregarded.

In addition, our review of the record indicates that plaintiff did not object to the supplemental charge as given even after the trial court asked both counsel if they had any objection to the supplemental instructions given. LSA-C.C.P. Art. 1793 governs this situation. That article reads:

"A. At the close of the evidence, or at such earlier time as the court reasonably directs, a party may file written requests that the court instruct the jury on the law as set forth in the requests.
B. The court shall inform the parties of its proposed action on the written requests and shall also inform the parties of the instructions it intends to give to the jury at the close of the evidence within a reasonable time prior to their arguments to the jury.
C. A party may not assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury."

In the absence of an objection to the supplemental instruction as given, the plaintiff may not now assign this as error in the Court of Appeal. Robillard v. P & R Racetracks, Inc., 405 So.2d 1203 (La. App. 1 Cir.1981). In Bourque v. Olin Corp., 346 So.2d 1373 (La.App. 3 Cir.1977), we said:

"Failure to timely object to the jury charge waives the right to urge on appeal errors in the charge as grounds for reversal and remand. Druilhet v. Comeaux, 317 So.2d 270 (La.App. 3rd Cir. 1975) (writ denied, La., 321 So.2d 363); Renz v. Texas & Pacific Railway Company, 138 So.2d 114 (La.App. 3rd Cir. 1962), writ denied. Likewise, the right to attack on appeal an allegedly improper instruction given after the case has been submitted to the jury must be preserved by an objection made at the time the supplemental instruction is given. See Renz v. Texas & Pacific Railway Company, supra. The policy considerations underlying these rules are obvious. As Judge Tate stated in Renz, `Counsel may not permit or acquiesce in an easily corrected procedural error and then, after an adverse verdict, urge such error for the first time as a ground for setting aside the jury verdict reached by the *1114 expensive and cumbersome method of a jury trial.'"

For that reason and, additionally, because we feel the trial court's supplemental charge sufficiently corrected any error committed in giving the first charge, we find no merit to the plaintiff's first assignment of error.

ASSIGNMENT OF ERROR NO. 2

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Bluebook (online)
471 So. 2d 1111, 1985 La. App. LEXIS 8988, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duerden-v-pbr-offshore-marine-corp-lactapp-1985.