Wynne v. Trotter

46 So. 3d 678, 2010 La.App. 4 Cir. 0090, 2010 La. App. LEXIS 1121, 2010 WL 2615804
CourtLouisiana Court of Appeal
DecidedAugust 4, 2010
Docket2010-CA-0090
StatusPublished
Cited by5 cases

This text of 46 So. 3d 678 (Wynne v. Trotter) 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
Wynne v. Trotter, 46 So. 3d 678, 2010 La.App. 4 Cir. 0090, 2010 La. App. LEXIS 1121, 2010 WL 2615804 (La. Ct. App. 2010).

Opinions

CHARLES R. JONES, Judge.

| ,The defendant-Appellants, William Trotter and Special T, L.L.C. appeal the district court’s judgment in favor of the plaintiffs-Appellees, Thomas Wynne and Janna Wynne. We amend and affirmed as amended.

On August 14, 2003, Mr. Wynne, a yacht broker and expert fishing vessel operator, accompanied Wiley Horton and two friends on a weekend fishing trip in Venice, Louisiana, aboard the MW Tuner, a 29' foot fishing vessel. A tropical storm on August 15 stalled the fishing trip, and the MW Tuner remained docked at the Cypress Cove Marina. During the following day, Mr. Wynne and a fishing companion noticed a large vessel approaching in the direct path of the MW Tuner. That vessel, a 43' foot MW Special T, was owned by Special T, L.L.C. and operated by Mr. Trotter, who was unable to control the boat due to a loss of power.

As the MW Special T approached the dock, Mr. Trotter attempted to restart the vessel’s engines to prevent a possible collision with the MW Tuner. After Mr. Trotter sent out an alarm to notify the fishermen aboard the MW Tuner of his intentions, Mr. Wynne advised Mr. Trotter not to turn on the MW Special T’s engines. Meanwhile, to prevent the MW Tuner from being damaged in the event of a collision, crew members of the vessel positioned rubber fenders alongside the LMW Tuner. Mr. Wynne remained on the port side of the MW Tuner’s bow platform and held the fenders close to the boat with his hands, to ensure that they stayed in place.

Mr. Trotter proceeded with attempts to restart the MW Special' T’s engines and within feet from the MW Tuner, the engines finally restarted. Shortly thereafter, Mr. Wynne alleged that a water surge was [681]*681created by the M/V Special T’s engines, which subsequently caused him to lose balance and fall. In his own description, Mr. Wynne was then “knock jumped” onto the dock1. Mr. Wynne declined treatment from the emergency medical technicians who were called to the scene of the accident. However, two days later on August 17, 2003, he sought treatment from a college acquaintance named Dr. James C. McIntosh, an orthopaedic surgeon. Dr. McIntosh then discovered that Mr. Wynne had fractured the calcaneus bone in his right heel.

Mr. and Mrs. Wynne filed suit against Mr. Trotter and Special T, L.L.C. on September 30, 2009, in the 25th Judicial District Court of Plaquemines Parish, alleging negligence on the part of Mr. Trotter and Special T, L.L.C. A judgment was issued in favor of the Wynnes, granting Mr. Wynne $185,000 in damages for pain and suffering, and $25,000 for loss of consortium to Mrs. Wynne. The district court also added Louisiana judicial prejudgment interest in the amount of $81,329.46 to the past and future damages awarded to the Wynnes, from the date of demand. This timely appeal followed.

|aMr. Trotter and Special T, L.L.C. raise eight (8) assignments of error on appeal:

1. The district court erred in finding complete fault on the part of Mr. Trotter and Special T, L.L.C. with respect to causation and damages to Mr. Wynne, while finding no fault on the part of Mr. Wynne.
2. The district court incorrectly concluded that a “sudden emergency” was caused by Mr. Trotter and Special T, L.L.C.
3. The district court erred in awarding $185,000 in damages for pain and suffering to Mr. Wynne.
4. The district court erred in granting Mrs. Wynne damages in the amount of $25,000, for loss of consortium.
5. With respect to the damages awarded, the district court erred in applying the Louisiana judicial interest rate in lieu of the Federal maritime rate.
6. The district court erred in applying prejudgment interest rates on its awards to the Wynnes, for past and future damages.
7. The district court erred in assigning fault to Special T, L.L.C.
8. The district court erred in failing to rule on Mr. Trotter and Special T, L.L.C.’s written objections to the depositions submitted by the Wynnes, before a judgment was entered.

Upon reviewing a district court’s factual findings in a civil case, appellate courts are to apply the “manifest error” standard of review. Rando v. Anco Insulations, Inc., 08-1163, p. 29 (La.5/22/09), 16 So.3d 1065, 1087. In applying this standard, an appellate court can not disturb a trial court’s findings “unless that finding is clearly wrong in light of the record reviewed in its entirety.” Noel v. Housing Authority of New Orleans, 09-0711, p. 2 (La.App. 4 Cir. 3/31/10), 36 So.3d 982. Moreover, “when two permissible views of evidence exist, the fact finder’s choice between them can not be manifestly erroneous or clearly wrong.” Moody v. Cummings, 09-1233, p. 4 (LaApp. 4 Cir. 4/14/10), 37 So.3d 1054.

Since the issues of negligence and liability are the subject of Mr. Trotter and Special T, L.L.C.’s first, second, and sev[682]*682enth assignments of error, we shall address them together. In Mr. Trotter and Special T, L.L.C.’s first and second assignments of error, they contend that the district court erred in determining that Mr. Trotter was at fault for the M/V Special T’s collision with the M/V Tuner, and for Mr. Wynne’s subsequent injuries, without finding that Mr. Wynne was partially at fault.

On the issue of liability, general maritime cases tried in state courts are to be reviewed using the “manifest error standard.” Milstead v. Diamond M Offshore, Inc., 95-2446 (La.7/2/96), 676 So.2d 89, 96, 1996 A.M.C. 2341. Utilizing a duty-risk analysis, Louisiana courts dictate that five elements must established in determining whether a person is negligent: “(1) the defendant had a duty to conform his or her conduct to a specific standard of care (2) the defendant failed to conform to this standard of care, (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries; (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries; and (5) actual damages”. Brewer v. J.B. Hunt Transport, Inc., 09-1408, p. 7 (La.3/16/10), 35 So.3d 230.

One threshold inquiry in any negligence action is whether the defendant owed the plaintiff a duty. Federal maritime Inland Navigational Rule 5 denotes that a vessel has a duty to “maintain proper look-out by sight and hearing, as well as by all available means in the prevailing circumstances so as to make a full ^appraisal of the situation and of the risk of collision.” 33 U.S.C. § 2005. This Court previously applied the Inland Navigational Rules, holding that the pilot of a vessel has a duty to navigate the vessel with proper lookout, at a safe speed. See e.g., Koepp v. Sea-Land Service, Inc., 93-2562 (La.App. 4 Cir. 11/17/94), 645 So.2d 1269, 1276. In regards to causation, it has been held that when a moving vessel allides2 with a stationary object, the former is presumed at fault. The Oregon, 158 U.S. 186, 197, 15 S.Ct. 804, 809, 39 L.Ed. 943 (1895), Dow Chemical Company v. Dixie Carriers, Inc., 463 F.2d 120, 122, n. 4 (5th Cir.1972).

Mr. Trotter and Special T, L.L.C.

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46 So. 3d 678, 2010 La.App. 4 Cir. 0090, 2010 La. App. LEXIS 1121, 2010 WL 2615804, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wynne-v-trotter-lactapp-2010.