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Hearn v. American River Transportation Co.

March 11, 1999

ROBERT L. HEARN, PLAINTIFF-APPELLEE AND CROSS-APPELLANT,
v.
AMERICAN RIVER TRANSPORTATION COMPANY, DEFENDANT-APPELLANT AND CROSS-APPELLEE.



Appeal from the Circuit Court of Madison County. No. 96-L-218 Honorable Randall A. Bono, Judge, presiding.

The opinion of the court was delivered by: Justice Goldenhersh

Defendant, American River Transportation Company, appeals from a judgment of the circuit court of Madison County, entered after a bench trial, in favor of plaintiff, Robert L. Hearn, in the amount of $388,150. Plaintiff originally brought this action to recover damages he sustained to his wrist during a fall while working as a deckhand on defendant's boat. Plaintiff filed his complaint raising claims under both the Jones Act (46 U.S.C. §688 et seq. (1994)) and general maritime law. The issues raised by defendant on appeal are (1) whether the trial court erred in striking defendant's demand for a jury trial, (2) whether the trial court's decision was against the manifest weight of the evidence, and (3) whether the trial court erred in awarding plaintiff $388,150 in damages for his wrist injury. Plaintiff cross-appeals, arguing that the trial court erred in failing to award plaintiff any damages for the loss of earnings capacity and future wage loss. We affirm.

I. FACTS

Plaintiff filed suit under both the Jones Act and general maritime law on March 22, 1996. In its answer, defendant demanded a jury trial. On June 11, 1997, plaintiff filed a motion to strike defendant's jury demand. The trial court granted plaintiff's motion on September 26, 1997, over defendant's objection. A three-day bench trial was conducted, starting on October 6, 1997. The following facts were adduced at trial.

Plaintiff, age 43 at the time of trial, was employed as a deckhand aboard the MV Crimson Duke, a line boat owned by defendant. Plaintiff began working on the river when he was 17. Throughout his employment with various companies, plaintiff worked not only as a deckhand but also as a second and third mate and was, therefore, quite familiar with the chain of authority aboard a vessel. In December 1994, plaintiff was a deckhand on the MV Crimson Duke. The crew consisted of a captain, a pilot, a first mate, a second mate, a call watchman, and a deckhand. The recognized chain of command aboard the MV Crimson Duke began with the captain, then the first mate, then the second mate, and finally, the deckhand. Because of plaintiff's past employment as a mate, he was concerned that he would be resented by other members of the crew who might think he was vying for a mate's job if he spoke up too much.

The crew of such a vessel works in 30-day shifts, meaning that a person works aboard the vessel for 30 days and then has 30 days off. Crew members get on and off the boat throughout the month. Once on board, there are two shifts. The first shift, known as the forward watch, runs from 6 a.m. to noon and then from 6 p.m. to midnight. The second watch runs from noon to 6 p.m. and midnight to 6 a.m.

Plaintiff boarded the ship on December 15, 1994, to begin his 30- day shift. On December 25, 1994, during the evening shift of the forward watch, plaintiff was working on the tow. The captain knew that the men were working on the tow because the watchman used a walkie- talkie to communicate with the captain. Everyone was wearing head lamps because the outside guard lamps, which hang from the underside of the deck, were turned off. Before all the tow work was completed, Ray Davis, the second mate, told the crew to return to the vessel and do cleanup.

Plaintiff went to the galley to take care of the trash. The recyclable material needed to be taken to the deck locker, near the bow of the boat, which could only be reached from the outside of the vessel. The trash compactor, which stored the remaining garbage, was in the engine room. Plaintiff first took the recyclables to the deck locker. He returned to the galley and picked up the trash for the trash compactor. Plaintiff walked on the outside of the boat, rather than on the inside the boat, as a precautionary measure. Plaintiff explained that if the trash bags broke on the inside of the boat, it would cause a mess on the galley floor. Plaintiff testified that he was not working any faster than he thought was safe. While walking outside near the starboard winch, plaintiff raised his foot, but it stopped on a nonskid material that was applied to the deck of the boat. His foot stuck, and he started to lose his balance. He raised his foot to try to catch his balance. Plaintiff knew that a winch wire was located in the area, and he tried to avoid it, but when he raised his foot in an attempt to catch his balance, he stepped on the wire and fell down. Plaintiff hurt his wrist, hands, and knee in the fall.

Plaintiff testified that because the captain was aware that the crew had been doing tow work and had not activated the exterior lights, he assumed that the captain wanted the lights off for a particular purpose. There was testimony from several sources that the exterior lights caused a glare, akin to a dome light being activated while a car is moving. Plaintiff's only lighting was his head lamp, which is similar to a miner's lamp. Plaintiff stated that he could probably see the winch wire, but there were other things he was trying to negotiate in the area. Plaintiff opined that if the deck lights had been on at the time he was taking out the trash, he probably would have been better able to see where he was going. This would have helped prevent his injury because he would have been better able to see the winch, the wires, the buttons, and everything else in the area. When plaintiff stumbled, his head lamp moved, and he believed it snagged on something. Plaintiff testified that he did not call the captain to turn on the lights because he assumed that the captain did not want them on for some reason and because he assumed that Ray Davis would tell the captain to turn on the lights. According to plaintiff, it was Davis's job to keep everyone abreast of new developments. Plaintiff saw Davis ascending to the wheelhouse, so he assumed that Davis was going up to talk to the captain. Davis did not ask the captain to turn on the lights.

Plaintiff testified that plaintiff's exhibit No. 7 shows the condition of the deck at the time plaintiff fell. Plaintiff's exhibit No. 7 indicates that the deck had an overall blotchy appearance and that there were several different shades of grey paint. Several witnesses testified as to the application of the nonskid coating put on the deck of the MV Crimson Duke. This application occurred in the fall of 1994. All testimony indicated that a nonskid coating is essential on such a vessel because the decks become slick from water, frost, and other unavoidable conditions and that such a coating helps prevent crew members from falling overboard. Prior to fall 1994, the MV Crimson Duke's decks were covered by paint with sand mixed into it. Sometime in 1994, one of the mates of the MV Crimson Duke, Kerry Wills, discussed with other mates and captains the possibility of applying a coarser material, commonly referred to as "Black Beauty," a coal-slag compound that was then being used aboard other vessels. A decision was made to apply Black Beauty to the MV Crimson Duke. It was applied by crew members, including plaintiff, in September and October 1994.

Black Beauty is applied by rolling paint onto an area of the deck and sprinkling Black Beauty onto the wet paint through mayonnaise jars, with holes punched into the top. Once the paint with the Black Beauty on top dries, the excess is swept or blown off. Grey deck paint is then applied on top of the Black Beauty for cosmetic purposes. There is a discrepancy in the record as to how many coats of Black Beauty were applied to the MV Crimson Duke deck. Plaintiff testified that several coats of Black Beauty were applied, resulting in an uneven application. Plaintiff testified that the heavy application of nonskid material on the vessel contributed to his fall. Plaintiff's expert, Pat Jamison, captain of the Argosy IV, a gambling boat, testified that he is not a proponent of Black Beauty or any rough type of nonskid material. He believes that the product is too severe, too rough.

Kerry Wills testified that the crew applied only one layer of Black Beauty and then two coats of deck grey paint. Wills testified that the application was uniform. Wills agreed, however, that if more than one layer of Black Beauty was applied, he would be critical of that because it would be unsafe. The log book, which was introduced into evidence, shows that Wills was on the ship when the deck resurfacing began on September 9, 1994, but that he got off the boat on September 29, 1994. The deck resurfacing and painting was not complete until October 5, 1994. Plaintiff, on the other hand, first got on the vessel on September 8, 1994, the day before the deck resurfacing began, and was on the vessel throughout the entire process. The log book includes several entries pertaining to the application of both nonskid material and grey deck paint during the period of September 9, 1994, through October 5, 1994. The entries are confusing. We cannot tell from reviewing the log book how many layers of nonskid material were actually applied. Ray Davis, a second mate, testified that only one coat of nonskid material was applied, but Davis did not board the vessel until September 28, 1994.

In addition to painting the deck grey, certain areas were painted with a yellow stripe to warn the crew of potential hazards. For example, the entire outer edge of the deck was painted with a yellow stripe. Prior to 1994, the policy of defendant was to paint yellow stripes underneath the winch wires. However, at the time of the accident in question, no yellow stripes had been painted under the winch wires. First mate Bob Middleton testified that a representative of defendant informed him to stop painting beneath winch wires and that it was no longer defendant's policy to do so. An undated memo outlining this new policy was introduced into evidence. Middleton explained that it is difficult to paint underneath the wires because the placement of the wire changes depending on barge placement. Middleton was impeached on this issue by his deposition testimony. During Middleton's deposition, he did not discuss any new policy on the issue of painting beneath winch wires. Instead, Middleton had explained that the crew had not yet gotten around to painting underneath the winch wires at the time the accident occurred.

After his fall, plaintiff immediately reported his injury and signed an accident report that had been completed by Davis. Plaintiff exited the vessel at defendant's fleet in New Orleans and then went to a local hospital, where X rays were taken. Plaintiff's knee was cleaned and bandaged, a brace was placed on his right hand, and an Ace bandage was placed on his left hand. Plaintiff was sent home and treated by his family physician, who then referred him to Dr. Taylor. Dr. Taylor found two broken fingers on plaintiff's right hand and placed it in a cast. Plaintiff experienced pain in his wrist, elbow, and shoulder. In late January or early February 1995, plaintiff was released for a return to work. Plaintiff returned to his former position as a deckhand and made it through his first 30-day shift. However, after being back on the job, plaintiff experienced problems with his wrist, which seemed to be getting worse rather than getting better. Plaintiff sought additional treatment from Dr. Glogovac, a board-certified orthopedic surgeon. Dr. ...


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