Parker v. Delta Well Surveyors, Inc.

791 So. 2d 717, 2000 La.App. 4 Cir. 1121, 2001 La. App. LEXIS 1439, 2001 WL 540786
CourtLouisiana Court of Appeal
DecidedMay 2, 2001
DocketNo. 2000-CA-1121
StatusPublished
Cited by8 cases

This text of 791 So. 2d 717 (Parker v. Delta Well Surveyors, 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
Parker v. Delta Well Surveyors, Inc., 791 So. 2d 717, 2000 La.App. 4 Cir. 1121, 2001 La. App. LEXIS 1439, 2001 WL 540786 (La. Ct. App. 2001).

Opinions

b JONES, Judge.

After a trial on the merits, the district court rendered judgment in favor of the plaintiff, Darrel Parker. Mr. Parker seeks reversal of the district court’s decision assessing him with 40% comparative fault. Defendant, Delta Wells Surveyors, appeals the decision of the district court in regard to the monetary damages awarded to Mr. Parker. We affirm.

FACTS

Mr. Parker, a 28-year-old deckhand, was employed aboard the M-44 motorized vessel owned by Delta Well Surveyors. The M-44 is a self-propelled twin screw spud barge located in a slip of Tiger Pass in Venice, Louisiana. In March of 1997, while the M-44 was spudded down against the dock, Mr. Parker was loading equipment owned by IronFab onto the barge. IronFab is an individual business whose yard was approximately one hundred feet from where Mr. Parker was loading. He noticed a hydraulic line on the crane was leaking oil into the dry gear box not intended to receive oil. If the reservoir was not emptied the oil would spill onto the [719]*719deck and cause a safety hazard to all aboard. There was no ladder available onboard the vessel. Mr. Parker stood on a 55-gallon drum to remove the |aoil from the reservoir of the crane by using a 1-gallon plastic drum. He testified that he had seen his superior, Capt. Henry Lee, empty the reservoir by standing on a 5-gallon bucket. Capt. Lee did nothing to stop Mr. Parker from using the 55-gallon drum to stand on. Capt. Lee himself testified that the oil was leaking onto the crane and had been for about a week prior to Mr. Parker’s accident. Capt. Lee further testified that he did report the condition to the proper authorities and nothing had been done to fix the problem. Capt. Lee testified that he “jerry-rigged” the mechanism to stop the oil from leaking onto the deck. His testimony was corroborated by Roberto Williams, an employee of IronFab who sometimes worked upon Delta’s M-44. Mr. Williams testified that he had complained about the oil leak to Capt. Lee on several occasions approximately four to five months prior to the accident. On this particular day, when Mr. Parker attempted to correct the ongoing problem, he fell onto the deck from standing on the 55-gallon drum and sustained injuries.

Mr. Parker was treated at Meadowcrest Hospital immediately following the accident. He suffered injuries to his head, back, right leg, right knee, rectal region and suffered prostate problems. He was treated by numerous physicians, including, but not limited to, Dr. Kenneth Adatto, an orthopedic; Dr. Barrett Richter, a chiropractor; Dr. Nichols Franco, a urologist and Dr. Kenneth Vogel, a neurosurgeon. Mr. Parker was diagnosed with multiple contusions and cervical and lumbar strain. He endured two surgical procedures. He has not worked since the accident.

| ^PROCEDURAL HISTORY

Mr. Parker sued his Jones Act employer for the unseaworthiness of the M-44 and in general negligence on the part of Delta. He filed a Petition for Damages in the 25th Judicial District Court. After a trial on the merits on August 23, 1999, the district court rendered judgment against Delta in the amount of $697,896.22 assessing Delta with 60% comparative fault and Mr. Parker with 40% comparative fault. The total sum of Mr. Parker’s award is $418,737.74:

Pain and suffering, mental anguish and loss of life’s enjoyment and disability (past and future) $ 300,000
Past medical expenses $ 42,742.16
Future medical expenses $ 10,000
Past lost wages $ 45,000.28
Future lost wages and/or impairment of earning capacity $295,154.06
Future vocational rehabilitation expenses $ 5,000

Delta filed its Motion and Order for a Suspensive Appeal requesting that this Court reverse the district court’s judgment with regard to the awards for general damages, past wage loss, loss of future earning capacity, future vocational rehabilitation expenses and future medical expenses. Mr. Parker has taken a devol-utive appeal, complaining that the assessment of 40% comparative fault is without merit.

DISCUSSION

Abuse of Discretion

Delta contends that the general damages awarded to Mr. Parker were so grossly high as to constitute an abuse of discretion by the district court. “The standard of review for damage awards requires a showing that the trier of fact abused the great discretion accorded in awarding damages and in apportioning [4fault; the award or apportionment must be so high or so low in proportion to the [720]*720injury or fault that it shocks the conscience.” Courteaux v. DOTD, 745 So.2d 91 (La.App. 4th Cir.1999). The district court’s Reasons for Judgment states:

“General damages of at least $350,000 are supported by the Fourth Circuit’s recent decision in Valley v. Specialty Restaurant Corp., 726 So.2d 1028 (La. App. 4th Cir.1999). In that case, the plaintiff, like Darrel Parker, underwent both lumbar and cervical neurotomies performed by Dr. Vogel. The general damage award of $350,000 was affirmed on appeal and would be an appropriate award in this case, particularly considering the testimony adduced at trial.” (Emphasis added).

Delta contends that Valley is not analogous with the instant case because Mr. Parker’s medical procedures were not as extensive as the plaintiff in Valley. Delta further suggests that the case law indicates that an award to Mr. Parker for his injuries should be limited to $40,000. Although the instant case and Valley may not have similar findings of fact, the district court found Valley analogous enough to rely on it and that is not an abuse of discretion.

Dr. Vogel testified by deposition that he performed back surgery and subsequently neck surgery on Mr. Parker. More specifically, Dr. Vogel testified that Mr. Parker underwent a lumbar neurotomy to correct the back and a cervical facet arthrogram and block to correct the neck. He testified that Mr. Parker received “satisfactory results” from the lumbar neurotomy. He further explained that the goal of the neck surgery was to resolve 80 percent or 90 percent of Mr. Parker’s pain. After the neck surgery was performed in June of 1999, Dr. Vogel prescribed rehabilitation therapy and was going to evaluate Mr. Parker in a year. Dr. Vogel concluded in his testimony that Mr. Parker would suffer from “temporary ten to fifteen percent permanent partial total body medical impairment”.

IsThis Court in Pryor v. United Services Auto. Ass’n, 729 So.2d 658 (La.App. 4th Cir.1999) upheld an award to the plaintiff of $550,000 for past and future pain and suffering. The injuries suffered by the plaintiff in Pryor were similar to those endured by Mr. Parker. Pryor arouse out of an automobile accident wherein plaintiff sued for damages sustained from the accident. The jury awarded a total of $1,185,000, $550,000 of which constituted past and future physical and mental pain and suffering. This Court affirmed the decision of the district court stating, “[An] award of $550,000 for past, and future pain and suffering was not abusively low, where driver suffered injuries to her neck, wrist, and lower back after the accident, endured four surgeries... although she had clearly improved since the accident, and her treating physician testified that he expected to discharge her from his care in the very near future”. Id.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cibilic v. Cox Operating, L.L.C.
249 So. 3d 323 (Louisiana Court of Appeal, 2018)
Aycock v. Ensco Offshore Co.
833 So. 2d 1246 (Louisiana Court of Appeal, 2002)
Updegraff v. State ex rel. Department of Transportation & Development
828 So. 2d 693 (Louisiana Court of Appeal, 2002)
Updegraff v. STATE EX REL. DOTD
828 So. 2d 693 (Louisiana Court of Appeal, 2002)
Preatto v. Tidewater Marine, Inc.
809 So. 2d 1084 (Louisiana Court of Appeal, 2002)
Kaufman v. Adrian's Tree Service, Inc.
800 So. 2d 1102 (Louisiana Court of Appeal, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
791 So. 2d 717, 2000 La.App. 4 Cir. 1121, 2001 La. App. LEXIS 1439, 2001 WL 540786, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parker-v-delta-well-surveyors-inc-lactapp-2001.