Watson v. Third Shipmore Assoc

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 1, 1999
• Docket: 98-40552
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-40552 Summary Calendar _____________________

DONALD WATSON,

Plaintiff-Appellant,

versus

THIRD SHIPMORE ASSOCIATES; MARITIME OVERSEAS CORPORATION,

Defendants-Appellees. _________________________________________________________________

Appeal from the United States District Court for the Eastern District of Texas, Beaumont 1-96-CV-637 _________________________________________________________________

May 27, 1999

Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

This appeal arises from a negligence action under the

Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 905(b)

(“LHWCA”). The appellant, Donald Watson, a ship repairman, brought

suit against Third Shipmore Associates and the Maritime Overseas

Corporation for injuries he sustained during a slip and fall on the

gangway of the M/V OVERSEAS NEW YORK, on February 4, 1996.1

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. 1 Third Shipmore Associates and the Maritime Overseas Corporation are the owners and operators of the vessel. Watson broke the tibia and fibula bones in his left leg. The

district court concluded that the defendants negligently permitted

ice from the sleet and freezing rain to accumulate on the gangway

and handrails of the vessel, and that such negligence was the

proximate cause of Watson’s injuries. The district court awarded

Watson $175,000 in damages, but reduced the award to $17,500, plus

prejudgment interest, on the grounds that Watson’s individual

negligence contributed ninety percent to his injuries. For the

following reasons, we affirm.

On appeal, Watson argues that the district court erred in

finding him ninety percent contributorily negligent, as there

exists no evidence that he did not exercise reasonable care in

walking up the gangway. Neither Third Shipmore Associates nor the

Maritime Overseas Corporation appeal the district court’s finding

of liability. Both contend, however, that the district court

properly applied the comparative fault principles under the LHWCA.

The district court’s apportionment of fault, based on the

respective negligence of the parties, is a factual finding that we

review for clear error. See Manuel v. Cameron Offshore Boats,

Inc., 103 F.3d 31, 33 (5th Cir. 1997); Forrester v. Ocean Marine

Indem. Co., 11 F.3d 1213, 1216 (5th Cir. 1993). Thus, we will not

upset a district court’s finding of contributory negligence unless

we are left with a definite and firm conviction that a mistake has

been made. See Reich v. Lancaster, 55 F.3d 1034, 1045 (5th Cir.

1995) (citations omitted).

2 After a careful review of the record, and after thorough

consideration of the arguments raised by the parties on appeal, we

are more than satisfied that the district court did not err in

finding Watson ninety percent at fault for his slip and fall.

Regarding Watson’s contributory negligence, the district court made

the following factual findings: (1) at the time of Watson’s

accident aboard the M/V OVERSEAS NEW YORK, it was sleeting and

freezing rain; (2) the ice on the gangway where Watson fell was

both open and obvious; (3) the gangway was properly lighted, and it

also had non-skid threads; (4) Watson, however, was intoxicated at

the time of his fall; (5) he also wore improper footwear aboard the

vessel-–cowboy boots with smooth leather soles; and (6) he failed

to use proper causation when boarding the vessel.

Watson also testified that prior to his fall he consumed

approximately five or more alcoholic beverages. Indeed, Watson’s

medical records indicate that he remained drowsy due to the effects

of the alcohol for some three hours after the accident. Watson

further testified that he knew that the gangway would be icy, and

that he was aware that the gangway would be slippery. Finally,

Watson, who had approximately fourteen years of experience in ship

maintenance and repair, also knew that the gangway was constructed

of steel. Notwithstanding his knowledge of these risks, the record

is clear that Watson voluntarily proceeded up the gangway wearing

only slick-soled cowboy boots. We agree with the district court

that in doing so, Watson proceeded at his peril.

3 In sum, we find that the evidence amply supports the district

court’s conclusion that Watson was ninety percent contributorily

negligent. Therefore, the judgment of the district court, in all

aspects, is

A F F I R M E D.