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Hendricks v. Riverway Harbor Service

June 29, 2000

RONALD M. HENDRICKS, PLAINTIFF-APPELLEE,
v.
RIVERWAY HARBOR SERVICE ST. LOUIS, INC., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of St. Clair County. No. 97-L-1118A Jerome F. Lopinot, Honorable Judge, presiding.

The opinion of the court was delivered by: Justice Maag

Riverway Harbor Service St. Louis, Inc. (defendant), appeals a judgment in favor of Ronald M. Hendricks (plaintiff). Plaintiff filed suit in St. Clair County, seeking damages for negligence under the Jones Act (46 U.S.C. §688 (1994)) and for maintenance and cure under general maritime law. Defendant filed a timely answer in which it requested a jury trial and asserted the affirmative defense of contributory negligence. On plaintiff's motion, the trial court denied defendant's jury demand. A bench trial was conducted on November 9 and 10, 1998. On November 18, 1998, the trial judge entered a judgment in favor of plaintiff for the following damages:

Medical Expenses/Cure $37,237.26

Maintenance $7,452.00

Past Impairment of Earning Capacity $0.00

Future Impairment of Earning Capacity $0.00

Disability/Loss of Normal Life $500,000.00

Pain & Suffering/Past & Future$500,000.00

Total $1,044,689.26

The trial court found that plaintiff was 20% contributorily negligent and reduced the awards for disability/loss of normal life and pain and suffering/past and future by 20%. After the 20% reduction, plaintiff's award totaled $844,689.26. It is from this judgment that defendant appeals. On appeal, defendant contends that: (1) the trial court's finding that defendant was negligent was against the manifest weight of the evidence, (2) the trial court's judgment awarding separate damages for "disability/loss of normal life" and "pain and suffering" was erroneous under federal law, (3) the trial court's damages award was excessive and not based upon the evidence, and (4) the trial court erred in striking defendant's jury demand.

This case arises from an alleged injury suffered by plaintiff while working for defendant. On June 18, 1997, plaintiff, a deckhand, was working along with Carl White, a utility man, and James Pearson, a pilot, on the towboat MV Joey Trish. Their crew was assigned to secure barge MTI-183 to another barge. The "other" barge was already secured to a fleet of barges sitting in the Mississippi River.

Plaintiff testified that he and White were securing the bow end of barge MTI-183 while Pearson piloted the MV Joey Trish from its wheelhouse. Plaintiff testified that the utility man decided what technique would be used to secure a barge. Plaintiff stated that White chose to use the "double-eye" technique to attach barge MTI-183 in this instance. The "double-eye" technique required a crew member to put a wire, with loops on each end, into a ratchet and then to attach it to a "cavel or timberhead." Plaintiff testified that he slipped and fell while pulling on the ratchet to tighten the wire. Plaintiff said that before pulling on the ratchet, he noticed some grain on barge MTI-183 but that he did not believe he was standing on grain when he began to pull on the ratchet. After he fell, he noticed that grain was underneath him.

Plaintiff testified that at the time he fell, White was facing the other way and did not see him fall. Plaintiff stated that immediately after falling, he asked White to wait a minute. Plaintiff and White then proceeded to secure the bow and the stern of barge MTI-183. After completing this task, plaintiff and White boarded the MV Joey Trish. At that time, White noticed that plaintiff winced in pain and asked him what was wrong. White testified that plaintiff told him "his back was bothering him". Plaintiff went to the wheelhouse. Pearson asked plaintiff if he wanted to fill out an accident report. Plaintiff declined, stating that he was probably just getting old. Although plaintiff worked the rest of the day, his back condition did not improve. At the end of his shift, plaintiff asked Pearson to fill out an accident report. No such report was filled out.

After his shift that day, plaintiff was picked up by his friend, Stacey Reynolds. Stacey Reynolds testified that sometime around the date in question he picked up plaintiff from work and he noticed plaintiff was moving slowly. When he inquired, plaintiff told Reynolds that he had injured his back "pulling on something". Plaintiff worked the next two days, but was laid off on June 20, 1997. Testimony revealed that plaintiff knew he was being laid off because of a decrease in defendant's business. Plaintiff testified that he was under the impression that the layoff would only be temporary and that if defendant regained business, he would be ...


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