United States District Court, E.D. Louisiana
JOHN SCOTT, JR.
WEEKS MARINE, INC.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
FACTUAL AND PROCEDURAL HISTORY
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.
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.
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
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.
FINDINGS OF FACT
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.
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.
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,
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.
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.
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.
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.
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
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
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
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.
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.
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
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
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.
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.
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
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.
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 ...