Feyerabend v. State, Dept. of Wildlife & Fisheries

544 So. 2d 577, 1989 WL 51294
CourtLouisiana Court of Appeal
DecidedMay 16, 1989
DocketCA 88 0692
StatusPublished
Cited by4 cases

This text of 544 So. 2d 577 (Feyerabend v. State, Dept. of Wildlife & Fisheries) 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
Feyerabend v. State, Dept. of Wildlife & Fisheries, 544 So. 2d 577, 1989 WL 51294 (La. Ct. App. 1989).

Opinion

544 So.2d 577 (1989)

Paul FEYERABEND
v.
STATE of Louisiana, DEPARTMENT OF WILDLIFE & FISHERIES, McKee Craft and Ira's, Inc.

No. CA 88 0692.

Court of Appeal of Louisiana, First Circuit.

May 16, 1989.

*578 R. Scott Ramsey, Jr., Berwick, for plaintiff.

B.J. Rawls, Morgan City, for Ira's, Inc.

Patrick A. Juneau and Juneau, Hill, Judice, Hill & Adley, Lafayette, for Lanness K. McKee & Co., Inc.

Julius W. Grubbs, Jr. and Haik & Minvielle, New Iberia, for State of La. Through Dept. of Wildlife & Fisheries.

Before CARTER, LANIER and LeBLANC, JJ.

LeBLANC, Judge.

This personal injury suit was filed under the Jones Act and general maritime law. The primary issues raised herein are whether plaintiff was guilty of contributory negligence and whether the damages awarded to plaintiff are inadequate.

On July 4, 1986, plaintiff, Paul Feyerabend, was employed by the Louisiana Department of Wildlife & Fisheries (Department) as a coastal enforcement agent. On that date, plaintiff and his partner were *579 conducting a safety patrol in a seventeen foot fiberglass boat assigned to plaintiff by the Department. The vessel had twin center side consoles, a seat immediately behind each console and a walk-through windshield. At the time of the accident, plaintiff was standing behind the passenger console while his partner accelerated the vessel. The passenger console suddenly shifted position, striking plaintiff in his left knee. The blow caused him to fall backward onto the arm of the passenger seat, before finally sliding into the seat. As a result, plaintiff sustained injuries to his left knee and back. The knee injury resolved itself within a short time, but plaintiff was still under treatment for his back injury at the time of trial.

In any event, plaintiff filed suit against the State of Louisiana (State), through the Department of Wildlife & Fisheries; Lanness K. McKee & Company, Inc., the manufacturer of the vessel involved; and, Ira's, Inc., a boat repair facility. Following trial, the court rendered judgment on October 21, 1987, in favor of plaintiff and against the State fixing plaintiff's damages at $70,000.00 in general damages and $15,000.00 for loss of earning capacity. However, the trial court also concluded plaintiff was guilty of 25 percent contributory negligence and reduced his award accordingly. Plaintiff's demands against the other defendants were dismissed. This judgment was signed on November 9, 1987.

Plaintiff has appealed, alleging the trial court erred in finding he was contributorily negligent, in awarding an inadequate amount for general damages and in failing to award damages for loss of future earnings. The State answered this appeal, contending that a greater percentage of contributory negligence should have been allocated against plaintiff.[1]

CONTRIBUTORY NEGLIGENCE

It is plaintiff's position that he was guilty of no contributory negligence, while the State maintains that plaintiff should have been assessed with at least fifty percent contributory negligence.

The trial court's finding that plaintiff was contributorily negligent had two separate bases. First, the court found plaintiff was negligent in standing rather than sitting while the vessel accelerated from a complete stop. Secondly, it concluded "plaintiff should have been aware ... and put on guard that there was a problem with ... [the passenger] console that needed correction" and he was negligent in failing to discover and report the problem. The court assessed plaintiff with a total of 25 percent contributory negligence, without indicating what percentage was being assessed on each of these bases.

The trial court's allocation of percentages of fault is a factual determination which should not be disturbed in the absence of manifest error.[2]Anderson v. *580 Rabb, 484 So.2d 196 (La.App. 1st Cir.), writ denied 489 So.2d 248 (La.1986). In finding that plaintiff was negligent for standing while the vessel was being accelerated, the trial court gave the following reasons:

I find that the plaintiff standing in the boat when the boat was accelerating to get on step is a negligent act. Had he not been standing up, then, from the evidence, his knee would not have been hit. And if he had been sitting down, he would not have been thrown down, causing the problem in the lumbar area. There may be no rule which required him to sit. But the seats are there for that purpose. He did not have to stand, not at that time. And I think it was not prudent, under the circumstances, for him to do it. And, certainly, this contributed to his injuries ...

After careful consideration, we are unable to say that the trial court's conclusion on this issue is manifestly erroneous.

However, we have reached a different conclusion with respect to the finding that plaintiff was negligent in failing to report a problem with the passenger console. The trial court's finding was based on the testimony of two marine surveyors who testified for the defense to the effect that their examination of the vessel indicated the passenger console had been loose for some time prior to the accident. From this conclusion, they postulated that there would have been vibrations and noise created by the loose console which should have been noticeable to plaintiff. While the marine surveyor testifying on behalf of plaintiff agreed that the console had been loose for some time, he was more reticent to conclude that the vibrations and noise it would have created would have been sufficient to alert plaintiff to the problem. Plaintiff, himself, testified that he noticed no noise or vibrations prior to the accident. His partner substantially corroborated this testimony.

We note none of the experts actually heard the motor of the vessel in question in operation, so as to familiarize themselves with the level of noise it created. Under these circumstances, and in the face of the testimony of plaintiff and his partner indicating they noticed no noise or vibrations, the testimony of defendants' experts and the conclusion of the trial court that plaintiff should have detected the vibration and heard the rattling above the noise of the motor was, at best, speculative. The trial court committed manifest error in finding plaintiff guilty of contributory negligence on this basis.

If the trial court had indicated the percentage of contributory negligence being assessed to plaintiff on this basis, we would simply reduce the allocation of contributory negligence against plaintiff by that percentage. We could then review the remaining assessment of contributory negligence against plaintiff for standing in the vessel under the manifest error standard. Unfortunately, we are unable to do so because the record does not indicate the percentage of contributory negligence the trial court assigned on each of these bases. Consequently, since the full record is before us, we must make a de novo determination of the percentage of contributory negligence which should be allocated against plaintiff for his negligence in standing while the vessel was accelerating. See, Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975). Considering all of the circumstances present, we conclude an assessment of 15 percent is appropriate. Accordingly, the contributory negligence assessed against plaintiff is reduced from 25 percent to 15 percent.

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Bluebook (online)
544 So. 2d 577, 1989 WL 51294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/feyerabend-v-state-dept-of-wildlife-fisheries-lactapp-1989.