Viator v. Liverpool & London SS Protection and Indem. Ass'n

701 So. 2d 487, 1997 WL 618939
CourtLouisiana Court of Appeal
DecidedOctober 8, 1997
Docket97-264
StatusPublished
Cited by5 cases

This text of 701 So. 2d 487 (Viator v. Liverpool & London SS Protection and Indem. Ass'n) 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
Viator v. Liverpool & London SS Protection and Indem. Ass'n, 701 So. 2d 487, 1997 WL 618939 (La. Ct. App. 1997).

Opinion

701 So.2d 487 (1997)

Patrick VIATOR, Plaintiff-Appellee,
v.
LIVERPOOL & LONDON STEAMSHIP PROTECTION AND INDEMNITY ASSOCIATION, Falcon Drilling Company, Inc. and Falrig Offshore (U.S.A.), Inc., Defendants-Appellants.

No. 97-264.

Court of Appeal of Louisiana, Third Circuit.

October 8, 1997.
Rehearing Denied December 8, 1997.

*490 James Parkerson Roy, Lafayette, for Patrick Viator.

Charles A. Mouton, Richard J. Hymel, Lafayette, for Liverpool & London Steamship, et al.

Before DOUCET, C.J., and DECUIR and AMY, JJ.

DOUCET, Chief Judge.

This suit arises out of an accident on an offshore jack-up rig. The defendants, Falcon Drilling Company, Inc. (Falcon), Falrig Offshore (U.S.A.), L.P. (Falrig), and Liverpool and London Steamship Protection and Indemnity Association (Liverpool) appeal the judgment rendered against them in the suit.

It is undisputed that Patrick Viator was employed by Falcon as a floor hand/shaker hand on the Achilles, a jack-up rig in the Gulf of Mexico. Viator fell while he and the crew were inserting drill pipe into the well. Viator sued Falcon; its insurer, Liverpool; and Falrig, the owner of the Achilles, alleging injuries to his cervical spine.

After a trial on the merits, the trial judge rendered judgment against the defendants and in favor of Viator. The judge found that Viator was a Jones Act seaman, that he was injured while in furtherance of the mission of the jack-up rig, Achilles, and that Viator was injured because of the negligence of his employer and of the unseaworthiness of the rig. He further found that Viator was free from fault in the accident. The court awarded Viator $100,000.00 for past physical and mental pain and suffering, permanent disability and loss of enjoyment of life; $150,000.00 for future physical and mental pain and suffering, permanent disability and loss of enjoyment of life; $19,593.25 for past medical expenses; $55,586.00 for past lost income and $225,000.00 for future lost income/loss of earning capacity. The defendants appeal.

LIABILITY OF FALCON

Based on three arguments, the defendants assert that Falcon should not have been found liable for the injury to Viator.

1. Standard of Care

The defendants first argue that the trial judge's finding of liability was based on application of an incorrect standard of care. Defendants contend that the trial court found that the slightest negligence on the part of Falcon was sufficient to sustain a finding of negligence, and that the seaman's duty to protect himself is slight. Defendants assert that, under Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir.1997), both Falcon and Viator should be held to reasonably prudent behavior. The defendants argue that, because an inappropriate standard of care was applied, we should review the case de novo rather than under a manifest error standard of review. The plaintiff argues that Gautreaux is inapplicable because the decision was not handed down until sometime after the rendition of judgment in this case. The judgment and written reasons given by the trial judge in this case do not indicate the standard of care that he applied.

In Gautreaux, the court clarified the duty of care owed by an employer under the Jones Act:

The language chosen by Congress to determine the responsibility of both employers and employees under the Jones *491 Act is simple and direct. Nothing in the statute indicates Congress's intention to hold Jones Act employees to a standard of slight duty of care in the exercise of concern for their own safety. Below, we explain the statutory scheme and Supreme Court precedent interpreting it before we illustrate our departure from their clear mandates.
1. The Statutory Scheme and Supreme Court Precedent
Under the Jones Act, seamen are afforded rights parallel to those of railway employees under the Federal Employers' Liability Act ("FELA"). 46 U.S.C. § 688. Section 51 of the FELA provides, in pertinent part, that "[e]very common carrier by railroad ... shall be liable in damages ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier." 45 U.S.C. § 51 (emphasis added). A seaman is entitled to recovery under the Jones Act, therefore, if his employer's negligence is the cause, in whole or in part, of his injury. In their earlier articulations of § 51 liability, courts had replaced the phrase "in whole or in part" with the adjective "slightest." In Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957), the Supreme Court used the term "slightest" to describe the reduced standard of causation between the employer's negligence and the employee's injury in FELA § 51 cases. In Ferguson v. Moore-McCormack Lines, Inc., 352 U.S. 521, 523, 77 S.Ct. 457, 458, 1 L.Ed.2d 511 (1957), the Court applied the same standard to a Jones Act case, writing, "`Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.'" (quoting Rogers, 352 U.S. at 506, 77 S.Ct. at 448).
Nothing in these cases, then, supports the proposition that the duty of care owed is slight. Rather, the phrase "in whole or in part" as set forth in the statute, or, as it has come to be known, "slightest," modifies only the causation prong of the inquiry. The phrase does not also modify the word "negligence." The duty of care owed, therefore, under normal rules of statutory construction, retains the usual and familiar definition of ordinary prudence.

Id. at 334-35.

The court in that case further clarified the seaman's duty of care, concluding that:

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 the Jones Act becomes one of the reasonable seaman in like circumstances. To hold otherwise would unjustly reward unreasonable conduct and would fault seamen only for their gross negligence, which was not the contemplation of Congress.

Id. at 339.

Lacking any indication to the contrary, we will not assume that the trial court applied an incorrect standard. Therefore, we will not undertake a de novo review, but will review the record under a manifest error standard.

2. Competency of Edward Robert to Testify as an Expert.

Defendants seek to have this court disregard the testimony of the plaintiff's rig safety expert, Edward Robert, arguing he was not competent to testify as such. They argue that he did not have a sufficient background as a rig worker, and especially as a driller, to testify concerning the safe operation of drilling rigs by drillers.

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Cite This Page — Counsel Stack

Bluebook (online)
701 So. 2d 487, 1997 WL 618939, Counsel Stack Legal Research, https://law.counselstack.com/opinion/viator-v-liverpool-london-ss-protection-and-indem-assn-lactapp-1997.