Vendetto v. Sonat Offshore Drilling Co.

701 So. 2d 243, 96 La.App. 1 Cir. 0626, 1997 La. App. LEXIS 2343, 1997 WL 592532
CourtLouisiana Court of Appeal
DecidedSeptember 23, 1997
DocketNo. 96 CA 0626
StatusPublished
Cited by1 cases

This text of 701 So. 2d 243 (Vendetto v. Sonat Offshore Drilling Co.) 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
Vendetto v. Sonat Offshore Drilling Co., 701 So. 2d 243, 96 La.App. 1 Cir. 0626, 1997 La. App. LEXIS 2343, 1997 WL 592532 (La. Ct. App. 1997).

Opinions

IzGONZALES, Judge.

This appeal arises out of a suit for damages under the Jones Act and general maritime law.

FACTS

Plaintiff Joseph Vendetto, was employed as a seaman aboard the M/V DISCOVERER 534, which was owned and operated by defendant, Sonat Offshore Drilling Co. (Sonat). On or about January 19, 1993, Mr. Vendetto was assisting with a routine maintenance procedure on an engine in a thruster aboard the DISCOVERER 534 when he suffered a neck injury.

On January 10, 1994, Mr. Vendetto filed the instant suit for damages against Sonat, setting forth two theories of recovery, namely Jones Act negligence and unseaworthiness of the DISCOVERER 534, and seeking general damages, lost wages and other special damages, and maintenance and cure. Sonat answered Mr. Vendetto’s petition, generally denying the allegations and alleging that Mr. Vendetto was comparatively negligent.

After a trial on the merits, the trial judge determined that Sonat was negligent and that the DISCOVERER 534 was unseawor-thy. The trial court awarded Mr. Vendetto damages of $1,048,768.00, which represented general damages of $300,000.00 and special damages in the amount of $748,768.00, together with legal interest from date of judicial demand.

[245]*245From this adverse judgment, Sonat appeals, assigning the following errors:1

1. The trial court erred in its implicit finding of fact that the plaintiff was injured while lowering a chain fall.
2. The trial court erred in concluding that there was negligence under the Jones Act.
3. The trial court erred in concluding that the vessel was unseaworthy.
4. The trial court erred in failing to allocate any fault to the plaintiff.
5. The trial court erred in permitting Robert Kubelka to give expert testimony on the safe manner of performing this task assigned to the plaintiff.
136. The trial court erred in awarding $1,048,768.00 in damages, improperly assessed pre-judgment interest on that sum, and failed to give defendant credit for certain benefits and advances to plaintiff.

Mr. Vendetto also filed a motion and order for devolutive appeal in which he challenged the failure of the trial court to award interest from the date of the accident. This issue was not briefed and, therefore, is considered abandoned. Uniform Rules, Louisiana Courts of Appeal, Rule 2-12.4.

STANDARD OF REVIEW

The standard of review in Jones Act and general maritime eases is governed by state law. See Jordan v. Intercontinental Bulktank Corp., 621 So.2d 1141, 1155 (La.App. 1st Cir.), writs denied, 623 So.2d 1335, 1336 (La.1993), cert. denied, 510 U.S. 1094, 114 S.Ct. 926, 127 L.Ed.2d 219 (1994).

JONES ACT NEGLIGENCE

There was some dispute as to how the accident occurred. Mr. Vendetto said that he injured himself as he was lowering a chain fall (weighing between thirty and forty pounds) during the course of a 6000-hour SAM — Sonat automated maintenance, a routine maintenance procedure which was performed at every 6000 hours of operation.

This case is very similar to Rogers v. Eagle Offshore Drilling Services, Inc., 770 F.2d 549 (5th Cir.1985) (per curiam). In Rogers, the plaintiff was pulling a steel drilling cable off of the drawworks drum. The court held in Rogers:

We reiterated the Court’s previous holdings that the failure to use an available method to accomplishing the same work does not render a given method of performing the work unsafe.

770 F.2d at 550. In Rogers, the plaintiffs safety expert testified:

There is a principle in safety, first that you always use mechanical means to do a manual task .if you can possibly do it. And there were mechanical means available to do this job. Therefore, I feel that the practice that they were utilizing was unsafe for this reason, because they were not using a mechanical means.

770 F.2d at 550. Nonetheless, the fifth circuit held:

The testimony of [the safety expert] establishes only that a mechanical means of “cutting and slipping” would have been a preferable method. There was no testimony that performing the work manually was, in itself, an unsafe way of performing the job. We therefore hold to our conclusion that there is no Levidence that the use of a manual method ... was unsafe; the testimony the petitioner emphasizes established only that there were probably safer methods.

770 F.2d at 550-51.

The trial court in the instant case found the following facts:

On cross-examination Mr. Vendetto testified that the scaffolding did not extend completely from below the ladder to the edge of the thruster tunnel and that he had to stretch to get across. He admitted that there is a place on the handrail where one can lower the tools without having to worry about obstructions, and that he had lowered tools from that point before. He testified that he had seen and used wraps, but that they were not normally used to [246]*246lower tools. He admitted that he had sometimes used wraps when lowering tools for a SAM. The witness also said that if a wrap is used, then you can control the load and there is no load on the person lowering the tools. He added, though, that wraps were usually used to hold really heavy things in place. The witness said that he knew that using a wrap was a safe way to lower the tools.
Mr. Vendetto testified that Sonat had self-lifting tapes and safety meetings and placards set out around the rig on safe lifting techniques. The plaintiff said that he saw the placards and that they said to lift with the legs and keep the back straight. He said that was the technique that they had been taught and which he used. They had safety meetings once a week, which he attended, and placards also set out around the rig showing the proper lifting technique.

In rendering judgment in favor of Mr. Ven-detto, the trial court relied upon Spinks v. Chevron Oil Company, 507 F.2d 216, 223 (5th Cir.1975), citing it for the position that “[t]he seaman’s duty to protect himself ... is slight. His duty is to do the work assigned, not to find the safest method of work. This is especially true when his supervisor ... knows the working method used by the seaman and does nothing about it.”

With respect to the nature of the duty imposed on a seaman, Spinks was recently overruled by Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 339 (5th Cir.1997). The Gautreaux court found:

A seaman, then, is obligated under the Jones Act to act with ordinary prudence under the circumstances. The circumstances of a seaman’s employment include not only his reliance on his employer to provide a safe work environment but also his own experience, training, or education. The reasonable person standard, therefore, under a Jones Act negligence action becomes one of the reasonable seaman in like circumstances.

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Related

Vendetto v. Sonat Offshore Drilling Co.
725 So. 2d 474 (Supreme Court of Louisiana, 1999)

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Bluebook (online)
701 So. 2d 243, 96 La.App. 1 Cir. 0626, 1997 La. App. LEXIS 2343, 1997 WL 592532, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vendetto-v-sonat-offshore-drilling-co-lactapp-1997.