Theriot v. J. Ray McDermott & Co.

742 F.2d 877, 17 Fed. R. Serv. 85
CourtCourt of Appeals for the Fifth Circuit
DecidedOctober 1, 1984
DocketNo. 82-3113
StatusPublished
Cited by22 cases

This text of 742 F.2d 877 (Theriot v. J. Ray McDermott & Co.) 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
Theriot v. J. Ray McDermott & Co., 742 F.2d 877, 17 Fed. R. Serv. 85 (5th Cir. 1984).

Opinion

JOHNSON, Circuit Judge:

Kenneth Michael Theriot brought suit under the Jones Act, 46 U.S.C. •§ 688, and the general maritime law to recover damages against J. Ray McDermott & Company (McDermott) for injuries sustained during the course of his' employment as a structural welder aboard McDermott Derrick Barge 17 in the Gulf of Mexico. In this appeal of the jury verdict1 in his favor, [879]*879Theriot urges that the case be remanded to the district court for reconsideration of its calculation of Theriot’s damages in light of Culver v. Slater Boat Co., 722 F.2d 114 (5th Cir.1983) (en banc) (Culver II). On cross-appeal, McDermott argues that the district court erred in failing to order a new trial when the jury initially gave allegedly inconsistent answers to special interrogatories propounded to it by the court. McDermott also maintains that the evidence was insufficient to support the jury’s finding of negligence on its part. McDermott further contends that the court committed reversible error in allowing the admission into evidence of an accident investigation report prepared by a McDermott employee. For the reasons set forth below, we affirm the judgment of the district court as to McDermott’s liability, but remand on the issue of damages.

I. Facts

In July 1980 Theriot was working as a contract welder for JRF Enterprises2 when he was sent out at McDermott’s request to work aboard McDermott’s DB-17, which was engaged in the installation of a four-pile offshore well protector in the Gulf of Mexico. A well protector is a tight jacket platform with four legs (piles) which protrude around an open oil well to protect the well from boats and other marine traffic. Theriot’s job was primarily to weld the legs onto the jacket. When Theriot began his shift (“came on tower”) on July 3, 1980, he was assigned the task of making welding repairs on the stabbing guide of one of two steam-powered, pile driving hammers that were out of operation. There were two separate crews of welders working on the hammers — McDermott welders and contract welders. The hammer that the McDermott welders were repairing had been disassembled, that is, the stabbing guide had been removed so that the damaged portions were easily accessible. The hammer that Theriot was assigned to work on was not similarly taken apart. Before beginning work, Theriot inquired of Nolan Richard, the welder who preceded him on the job, as to the reason that their hammer had not been disassembled. Richard responded that McDermott was in a hurry for the repairs to be completed. Theriot began welding, but found that he had to assume uncomfortable and awkward positions in order to perform his welding tasks. He then requested of Wilton Hymel, McDermott’s acting welder foreman, that the hammer be taken apart. The hammer was never disassembled. Theriot therefore continued welding, again assuming the required difficult and awkward positions. Sometime later, as Theriot attempted to extricate himself from underneath the stabbing guide, he experienced sharp pains in his lower back which radiated into his right leg. Theriot was later diagnosed as suffering from a herniated disc in the lower back. He has undergone surgery for a laminectomy and a spinal fusion. Theriot is expected to never be able to return to work in the oil fields.

II. District Court Proceedings

In his complaint, Theriot contended that his injuries were a direct result of McDermott’s failure to provide him with a safe place in which to work. At trial, Theriot proceeded on the theory that the easiest and safest method of performing welding repairs on the stabbing guide required that the hammer first be disassembled. Wilton Hymel, the welder foreman on Theriot’s shift, testified that he could not recall whether or not Theriot requested that the hammer be taken apart. He further testified that from a welder’s perspective, a hammer would have to be disassembled each time that it needed repairs because it made the welder’s job easier; from a job point of view, however, a hammer could not be disassembled each time because a crane and a crew of riggers was necessary to [880]*880take a hammer apart. If a crane was unavailable, or there was insufficient time, the welding repairs were made with the hammer intact. In response to defense counsel’s question regarding the general procedure in making welding repairs on a cracked stabbing guide, Hymel answered: “Get it fixed as fast as you can.” Record Vol. Ill at 58. On redirect examination, Hymel admitted that other men had previously been injured while working on the hammer when it was not dissassembled.3 Id. at 103. Hymel also testified that he knew the hammer “backwards, insides, and forward” and that from experience, he knew that the hammer should be taken apart to be worked on. Id. at 106. Hymel further conceded that in completing an accident report on the incident, he listed “congested area” as the mechanical or physical hazard which contributed to Theriot’s injury because of his familiarity with the hammer. Id.

The testimony of Larry Thibodeaux, the supervisor on the shift immediately preceding Theriot’s duty, was basically the same as Hymel’s concerning the general procedure for making repairs on the stabbing guide. Nolan Richard, the worker who started the repairs on the stabbing guide before Theriot began his shift, testified that he had requested of Thibodeaux that the stabbing guide be removed from the hammer before he first attempted the welding job. Indeed Richard testified that a welder would have to be a contortionist in order to assume the position necessary to perform the required welding repairs with the hammer intact. Richard also stated that he informed Theriot that he had asked Thibodeaux to have the hammer disassembled but that his request had not been acted upon.

We first address the issues raised by McDermott’s cross-appeal.

IV. The Jury Verdict

The jury was submitted interrogatories to which it gave the following responses:

1. Was defendant J. Ray McDermott, Inc. negligent in a manner that was a cause of injury to plaintiff Kenneth Michael Theriot on or about July 3, 1980?
Yes.
2. Was the vessel DB 17 unseaworthy in a manner that was a proximate cause of injury to Mr. Theriot?
No.
3. Was plaintiff Kenneth Michael Theriot negligent in a manner which contributed to causing his own injury?
Yes.
4. If your answer to # 3 was “yes” then to what extent did Mr. Theriot’s own negligence contribute to his own injury? (Any answer to this question should be in the form of a percentage.)
5%.
5. Fill in the amounts in the spaces below which fairly and adequately compensate plaintiff for his damages. In the event that as to any of the following items you should find that plaintiff is not entitled to damages, you should write “None” in' the blank and go on to the next one.
(a) The amount, if any, he is due for lost income from the date of the accident (July 3, 1980) to the present date?
$34,000.00.

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Bluebook (online)
742 F.2d 877, 17 Fed. R. Serv. 85, Counsel Stack Legal Research, https://law.counselstack.com/opinion/theriot-v-j-ray-mcdermott-co-ca5-1984.