Miranda McCuller v. Nautical Ventures, L.L.

434 F. App'x 408
CourtCourt of Appeals for the Fifth Circuit
DecidedJuly 28, 2011
Docket09-31084
StatusUnpublished
Cited by5 cases

This text of 434 F. App'x 408 (Miranda McCuller v. Nautical Ventures, L.L.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Miranda McCuller v. Nautical Ventures, L.L., 434 F. App'x 408 (5th Cir. 2011).

Opinion

PER CURIAM: *

Benjamin McCuller and his wife, Miranda McCuller, sued Nautical Ventures, L.L.C., under the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. § 905(b), after Benjamin, who was working as a longshoreman,- was injured when he fell while descending a ladder on a ship owned by Nautical. The district court found that Nautical was negligent in providing a damaged ladder for his use and that Benjamin was thirty percent at fault for his injuries; the court awarded the McCullers damages accordingly. The McCullers appeal the district court’s finding of Benjamin’s comparative fault and three aspects of the district court’s damages award, and Nautical cross-appeals the *410 district court’s finding of liability. We AFFIRM the district court’s findings of liability and comparative fault, and the district court’s decision not to award damages for the loss of household services and the cost of in vitro fertilization. We VACATE and REMAND in part the district court’s damages award in respect to expenses for the McCullers’ future medical needs.

I.

Benjamin McCuller worked for Halliburton Energy Services at a marine terminal in Fourchon, Louisiana. On April 2, 2004, the C-Legend, a vessel owned and operated by Nautical, docked at Halliburton’s facilities to have dry bulk cement loaded into the vessel’s cargo tanks. Benjamin was responsible for boarding the C-Legend to attach hoses to the vessel for this purpose. Because the vessel’s two gangways were inaccessible, the crew of the C-Legend deployed an embarkation ladder, known as a Jacob’s ladder, which consists of rope sides and wooden rungs. Benjamin used the Jacob’s ladder five times without incident, but on his final descent down the ladder, during which Benjamin was carrying a clipboard, one of the ladder’s rungs broke and Benjamin fell approximately five feet to the dock below. As a result of his fall, Benjamin sustained knee and back injuries.

The McCullers sued Nautical under the LHWCA, 33 U.S.C. § 905(b), which provides for shipowner liability for, inter alia, a breach of the vessel’s “turnover duty.” Moore v. M/V ANGELA, 353 F.3d 376, 380 (5th Cir.2003). “The ‘turnover duty’ relates to the condition of the ship upon the commencement of stevedoring operations” and “requires a vessel to exercise ordinary care under the circumstances to turn over the ship and its equipment in such condition that an expert and experienced steve-doring contractor, mindful of the dangers he should reasonably expect to encounter will be able by the exercise of ordinary care to carry on cargo operations with reasonable safety to persons and property.” Id. (quoting Howlett v. Birkdale Shipping Co., 512 U.S. 92, 98, 114 S.Ct. 2057, 129 L.Ed.2d 78 (1994)) (internal quotation marks omitted) (citing Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 167, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981)). Following a bench trial, the district court determined that Nautical had breached its turnover duty by deploying a defective Jacob’s ladder, which had been damaged during a deployment several weeks prior to Benjamin’s fall. The court found that the “[djamage to the ladder” — “[a] small crack” in the wood of a rung of the ladder — “should have been apparent to a crewman [of the C-Legend] during a reasonable inspection of the ladder prior to its deployment” but “that the damaged condition of the ladder would [not] have been open and obvious to [Benjamin] McCuller” while he was using the ladder. McCuller v. Nautical Ventures, LLC, No. 05-1195, 2009 WL 3254290, at *3 (E.D.La. Oct.6, 2009). The district court found that “[a]s a result of the accident ..., Benjamin McCuller sustained injuries to his back and legs”; was “diagnosed as having herniated discs in his lumbar, thoracic, and cervical spine, and a hernia”; “has occipital neuralgia (headaches at the back of his head) and chronic back pain”; “has undergone at least eight surgical procedures ... including an anterior lumbar interbody fusion ..., a second fusion with a bilateral decompression and an implantation of a bilateral stage 1 spinal cord stimulator as well as numerous invasive tests, injections and inpatient and outpatient care.” Id. The court further found that Benjamin had no prior history of such injuries before his fall and that “[h]e remains in pain which is made somewhat *411 tolerable with medication and his temporary stimulator.” Id. at *4.

The court concluded that the McCullers were entitled to damages for Benjamin’s lost wages, pain and suffering, and medical expenses; and for the loss of consortium. The McCullers had also sought damages for the loss of Benjamin’s household services and for the cost of in vitro fertilization because Benjamin sustained nerve damage during one of his surgeries, which rendered him incapable of producing sperm. However, the district court did not award damages for the loss of household services. The court also did not award damages for in vitro fertilization because it “f[ound] these damages to be highly speculative.” Id. at *4 n. 1. The court found that Benjamin was thirty percent at fault for his injuries because he was holding a clipboard while climbing down the ladder, and it reduced the McCullers’ recovery accordingly. The court entered judgment on October 7, 2009, and denied the McCullers’ motion to alter the judgment or for a new trial on October 23, 2009. The McCullers timely appealed and Nautical timely cross-appealed.

II.

“‘The standard of review for a bench trial is well established: findings of fact are reviewed for clear error and legal issues are reviewed de novo.’” Mid-South Towing Co. v. Exmar Lux (In re Mid-South Towing Co.), 418 F.3d 526, 531 (5th Cir.2005); see Fed.R.Civ.P. 52(a). Clear error review means that “[i]f the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Anderson v. City of Bessemer, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). “A finding is clearly erroneous if a review of the record leaves ‘a definite and firm conviction that a mistake has been committed.’ ” Boudreaux v. United States, 280 F.3d 461, 466 (5th Cir.2002) (quoting Jackson v. OMI Corp., 245 F.3d 525, 528 (5th Cir.2001), in turn quoting McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 99 L.Ed.

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434 F. App'x 408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miranda-mcculler-v-nautical-ventures-ll-ca5-2011.