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Scott v. Weeks Marine, Inc.

United States District Court, E.D. Louisiana

May 7, 2018

JOHN SCOTT, JR.
v.
WEEKS MARINE, INC.

         SECTION "L"(2)

          FINDINGS OF FACT AND CONCLUSIONS OF LAW

         I. FACTUAL AND PROCEDURAL HISTORY

         This case arises from injuries Plaintiff John Scott, Jr. (“Scott”) sustained while delivering a package to Defendant Weeks Marine, Inc. (“Weeks Marine”). R. Doc. 1-1 at 2. On February 6, 2017, Plaintiff brought this action in state court in the 32nd Judicial District Court in Terrebonne Parish. Defendant removed to this Court on the basis of diversity. R. Doc. 1-1 at 1. Plaintiff is a citizen of Louisiana and Defendant is a citizen of New Jersey. R. Doc. 1-1 at 2. Defendant asserts that the amount in controversy exceeds $75, 000. R. Doc. 1-1 at 3.

         Plaintiff alleges that he sustained severe personal injuries as a result of Defendant's employees' negligence. R. Doc. 1-1 at 4. Plaintiff was employed by UPS as a delivery driver. R. Doc. 1-1 at 2. Plaintiff asserts he was delivering a 500 pound piece of industrial furniture when Defendant's employee negligently operated a forklift, causing the furniture to fall on Plaintiff's hand. R. Doc. 1-1 at 3-4. Plaintiff experienced immediate and severe pain and continues to have pain and swelling in his hand. R. Doc. 1-1 at 3. Plaintiff has undergone significant physical therapy and treatment with a hand specialist. R. Doc. 1-1 at 3. Plaintiff claims as a result of the alleged accident he suffered severe physical pain and disability, mental anguish, medical expenses, disfigurement, lost wages, and lost earning potential. R. Doc. 1-1 at 3. Plaintiff therefore seeks damages for those injuries in addition to exemplary damages and attorney's fees. R. Doc. 1-1 at 4.

         Defendant timely answers and denies all allegations in Plaintiff's complaint. R. Doc. 6 at 1-2. Defendant also asserts Plaintiff failed to state a cause of action upon which relief can be granted. R. Doc. 6 at 2. Defendant avers that any injuries were caused by Plaintiff's own negligence. R. Doc. 6 at 2.

         This matter came for trial without a jury on May 4, 2018. The trial lasted one day. The Court has carefully considered the testimony of all of the witnesses, and the exhibits entered into evidence during the trial, as well as the record. Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, the Court hereby enters the following findings of fact and conclusions of law. To the extent that any findings of fact may be construed as conclusions of law, the Court hereby adopts them as such. To the extent that any conclusions of law constitute findings of fact, the Court hereby adopts them as such.

         II. FINDINGS OF FACT

         (1) Plaintiff John Scott worked as a United Parcel Service (“UPS”) freight delivery driver on March 3, 2016. Scott has been employed as a heavy freight delivery driver by UPS since 2006. Scott has a duty to deliver an undamaged product. According to UPS policy and procedure, Scott has 15 minutes allotted per freight delivery. Any time period beyond 15 minutes necessary to complete a delivery requires that Scott inform dispatch of the delay and the reason therefor.

         (2) Scott's workday is 8 hours per day. He is paid overtime, time and one-half, for time worked over 8 hours per day. Scott's rate of pay on March 3, 2016 was $27.65/hour, $41.63/hour for overtime. On January 1, 2017, Scott received a pay raise to $27.90/hour regular time and $41.85/hour overtime. On July 31, 2017, Scott received a pay raise to $28.15/hour regular time and $42.23/hour overtime. On January 8, 2018, Scott received a pay raise to $28.40/hour regular time and $42.60/hour overtime.

         (3) Defendant Weeks Marine is a maritime construction company located in Houma, Louisiana. Justin Self (“Self”) worked as the shipping and receiving clerk at Weeks Marine on March 3, 2016. Self started working for Weeks Marine on December 11, 2013. Mr. Self was trained and certified to operate several types of fork lifts as of March 3, 2016, including an extended-boom forklift. Chad Bourg (“Bourg”) was Self's supervisor on March 3, 2016.

         (4) As of March 3, 2016, Scott had been delivering to Weeks Marine for 2-3 years. Scott delivers freight but UPS does not provide the equipment necessary to unload deliveries. Scott travels with a manual pallet jack in his truck to be able to move deliveries within the truck. Scott's UPS freight delivery truck is equipped with a hydraulic lift attached to the back of the truck on which deliveries may be placed and lowered to ground level, but this service requires an additional fee to be paid by the recipient. Weeks Marine did not request and/or pay for the use of the hydraulic lift to unload Scott's delivery on March 3, 2016. Instead, it elected to use its own equipment to remove deliveries.

         (5) John Scott delivered a cabinet to Weeks Marine on March 3, 2016. When he arrived at Weeks Marine he parked his truck in the noncemented, gravel area outside the shipping and receiving office. After parking his truck, Scott entered the Weeks Marine's shipping and receiving office to request that Self unload the cabinet from his truck. After requesting unloading, Scott returned to his truck to wait for Self. Scott waited for approximately ten minutes before going back into the receiving office to again request unloading. It was common practice for Self to ignore delivery drivers. In response to Scott's second request, Self left the office in a huff to unload the delivery.

         (6) After Scott's second request to have his truck unloaded, Self appeared on a Weeks Marine forklift to unload the cabinet. There is conflicting evidence as to which forklift was used to unload the cabinet. The Court finds that this element of the facts is not relevant to the negligence of the parties. Mr. Self used a forklift to unload the March 3, 2016 freight delivery. Plaintiff had already brought the cabinet from the front of the semi-trailer's cargo space to the rear. Although there is some conflict, the Court concludes that the credible evidence supports the conclusion that as Self operated the forklift to unload the cabinet, Scott stood on the ground, driver's side at the back of the truck. Proper unloading of freight requires that the forklift operator insert the forks, bring the pallet to the end of the deck plate (the hydraulic lift that is flush with and extends approximately 16 inches from the end of the truck bed floor), adjust the forks and pallet, tilt the load backwards against the forklift mast, lift, and remove the load.

         (7) To unload the freight delivery on March 3, 2016, Self inserted the forks into the pallet and attempted to unload without moving the pallet to the end of the deck plate or tilting the cabinet against the forklift mast. Mr. Self, operating the forklift, approached the cabinet from the back of the semi-trailer's cargo space, at an angle toward the right-hand (passenger) side of the truck. When Self backed out to unload, Scott saw that the forks were not all the way into the pallet and the cabinet was unsteady. Contemporaneously with Scott's realization, the cabinet rocked and Scott yelled, “Whoa!” Scott placed his hands on the cabinet to stabilize it. Scott told Self to “bring it down, ” instead of pulling it out.

         (8) Before Self could lower the pallet, it broke. When the pallet broke, Scott's left hand was smashed between the cabinet and the deck plate. Self's unloading attempt, the cabinet rocking, the pallet breaking, and Scott's hand being smashed all occurred within a matter of seconds and without warning.

         (9) After the pallet broke, Self left the scene on the forklift to get another pallet. When Self returned, he tilted the cabinet on to the new pallet and asked for the bill. When Self asked for the bill, Scott told him that he wanted to file an incident report. Self took Scott to the shipping and receiving office. Mr. Self and Plaintiff reported to Chad Bourg, Weeks Marine's material control supervisor. John Scott met with Self's supervisor, Chad Bourg. Scott told Bourg what happened. Bourg took 3 photographs of Scott's hand. Mr. Bourg prepared the Supervisor's Injury Report, this report states that Mr. Self reported the details of Scott's injury. Joint Exhibit 11. Scott testified that he also filed out and signed an incident report. Weeks Marine does not have a record of an incident report in Scott's handwriting and Scott was not provided a copy of Bourg's incident report.

         (10) X-rays taken at Concentra Urgent Care on March 3, 2016 and May 9, 2016 revealed no fracture or dislocation. Plaintiff's March 3, 2016 x-ray revealed a DIP (distal interphalangeal) joint of the index finger. Plaintiff attended twelve (12) physical therapy visits at Xtreme Physical Therapy and was discharged on June 29, 2016. Plaintiff performed additional physical therapy at Hand Surgical Associates during December 2016 through March 3, 2017. Scott received two painful hand injections as treatment for the trigger finger injury. Despite extensive conservative therapy, Scott experienced chronic pain and swelling of his left hand due to his injuries. Plaintiff underwent left index finger A1 pulley release and flexor tenosynovectomy on February 2, 2018. Plaintiff was released to full duty, no restrictions, no future medical care necessary, no medical sequelae, and no disability rating, on or about April 12, 2018. Scott continues to experience post-surgical pain and stiffness.

         (11) Liberty Mutual Insurance Company (“Liberty Mutual”) is Plaintiff's employer's workers' compensation insurer, and Liberty Mutual paid all of Plaintiff's medical expenses related to the March 3, 2016 accident, the total being $17, 256.73. Liberty Mutual paid Plaintiff compensation benefits during his time off from surgery, the total being $6, 490.00. Plaintiff worked full duty after the accident. Plaintiff did not work from February 2 to April 12, 2018, while recovering from surgery.

         On the date of the accident, John Scott's hourly wage was $27.65. His overtime rate of time and one-half was $41.48. Regular time per day totaled $221.20. He averaged 12.37 overtime hours per week, 2.474 hours per day. Overtime average per day totaled $102.63. John Scott's total gross wages per day at the time of the accident was $303.83.

         (12) John Scott was treated by Concentra Urgent Care and Hand Surgical Associates for his injuries. He had to take off the entire day of work for doctor appointments because there is no part-time freight delivery. In total, John Scott attended eight medical appointments for a total of $2, 880.73 in lost wages for medical appointments.

a. On May 9, 2016, July 1, 2016 and December 7, 2016, John Scott attended medical visits. At that time, his hourly wage was $27.65 at 8 hours per day. His overtime wage was $41.48 at an average of 2.474 hours per day.
b. On January 4, 2017, February 1, 2017, March 8, 2017, and June 13, 2017, John Scott attended medical visits. At that time, his hourly wage was $27.90 at 8 hours per day. His overtime wage was $41.85 at an average of 2.474 hours per day.
c. On June 31, 2017 John Scott attended a medical visit. At that time, his hourly wage was $28.15 at 8 hours per day. His overtime wage was $42.23 at 2.474 hours per day.
d. On January 31, 2018, John Scott attended a pre-operative visit at Omega Hospital in preparation for his February 2, 2018 surgery. At that time, his hourly wage was $28.40 at 8 hours per day. His overtime wage was $42.60 at 2.474 hours per day.
e. Scott was out of work from February 2, 2018 through, and including, March 30, 2018 for post-surgical rehabilitation. While Scott was out recovering from surgery, he received only $649.00 in weekly indemnity benefits, totaling $5, 192.00. Scott's average weekly wage was $1, 618.82.
f. Scott pays approximately $27.00 per week for health insurance. While he was out on post-surgical rehab, Scott had to pay for all of his health insurance. Scott issued a check to UPS for $422.50. The difference between Scott's $27.00 per week payment and the amount he had to pay while on leave is $206.50, which constitutes lost wages as it was paid out of his already-taxed income.

         On September 25, 2017, John Scott underwent an IME scheduled by Weeks Marine. On the IME date, John Scott's hourly wage was $28.15 at 8 hours per day with an overtime wage of $42.23 at 2.474 hours per day.

         As a result of the injuries sustained on March 3, 2016, Scott experienced pain and suffering. Scott was significantly limited in the use of his dominant left hand. As a result of the injuries, Scott was denied the opportunity to enjoy his brief times off work. He was unable to operate his Harley Davidson for two years. Scott was unable to maintain his yard and garden the way he did prior to the accident. Scott's grip strength significantly diminished as a result of the injuries.

         The Court finds as a factual matter that Defendant is partly at fault for the cause of Plaintiff's accident and injuries. By failing to properly insert the forks of the forklift into the pallet, readjust the forks, and tilt the cabinet back, Self created an unsafe and unstable unloading situation that caused the cabinet to rock and fall during the unloading process. Self did not properly operate the forklift while attempting to unload the UPS freight delivery. Self's haste and negligence were a cause of Scott's injuries.

         The Court also finds as a factual matter that Plaintiff is partly at fault for the cause of his accident and injuries. While Plaintiff's decision to put his hands up to keep the cabinet from rocking was likely instinctive, Plaintiff had no responsibility to participate in the unloading of the ...


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