Williams v. Global Movible

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-31038 Summary Calendar

DAVID WILLIAMS,

Plaintiff-Appellant,

versus

GLOBAL MOVIBLE OFFSHORE, INC.,

Defendant-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 95-CV-1689-D - - - - - - - - - - July 17, 1997 Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges.

PER CURIAM:*

David Williams appeals the district court’s denial of his

motion for a continuance made on the day of trial, award of

damages, and assessment of 10% fault against Williams.

We review the district court’s denial of a motion to

continue trial for abuse of discretion, and will reverse the

district court only if its ruling was arbitrary and clearly

unreasonable. Dorsey v. Scott Wetzel Services, Inc., 84 F.3d

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. No. 96-31038 - 2 -

170, 171 (5th Cir. 1996); Transamerica Insurance Co. v. Avenell,

66 F.3d 715, 721 (5th Cir. 1995). The medical testimony of the

various doctors was not so unclear as to Williams’ diagnosis and

prognosis that the district court abused its discretion in

denying the continuance for want of additional evidence.

We review the district court’s award of damages and

assessment of 10% comparative fault against Williams for clear

error. Rhodes v. Guiberson Oil Tools, 82 F.3d 615, 620 (5th Cir.

1996); Avondale Industries, Inc. v. International Marine

Carriers, Inc., 15 F.3d 489, 492 (5th Cir. 1994). Clear error

exists when, “the reviewing court upon examination of the entire

evidence is left with the definite and firm conviction that a

mistake has been committed.” Justiss Oil Co. v. Kerr-McGee

Refining Corp. 75 F.3d 1057, 1062 (5th Cir. 1996).

The evidence indicates that Williams was improved five

months following the accident, that he suffered from low grade

reflex sympathetic dystrophy, and that he should recover fully

within a reasonable amount of time. The district court’s award

of two years of lost wages and $25,000 in general damages was not

clear error.

The district court did not commit clear error in

apportioning 10% fault to Williams for not positioning himself in

such a way to better alert him to the one ton basket’s movement,

a risk known to him. Gautreaux v. Scurlock Marine, Inc., 107

F.3d 331, 338-39 (5th Cir. 1997). No. 96-31038 - 3 -

AFFIRMED.