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Thomas v. State, Department of Wildlife & Fisheries

Court of Appeals of Louisiana, First Circuit

October 2, 2019

DANE THOMAS
v.
STATE OF LOUISIANA, DEPARTMENT OF WILDLIFE & FISHERIES

          On Appeal from the Twenty-First Judicial District Court In and for the Parish of St. Tangipahoa State of Louisiana Docket No. 2014-0000974 Honorable Charlotte H. Foster, Judge Presiding

          C. Arlen Braud, II Michelle O. Gallagher Steven D. Jackson Mandeville, Louisiana Attorneys for Appellant/Plaintiff Dane Thomas

          Henry S. Provosty Lena D. Giangrosso New Orleans, Louisiana Attorneys for Appellee/Defendant State of Louisiana, Department of Wildlife & Fisheries

          BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.

          PENZATO, J.

         Appellant, Dane Thomas, appeals a trial court judgment following a jury trial, finding Thomas to be partially at fault and Appellee, State of Louisiana, Department of Wildlife & Fisheries (LDWF), to be partially at fault for an accident resulting from a work-related injury aboard a boat owned by LDWF. Thomas brought suit alleging LDWF violated the Jones Act, 46 U.S.C. § 30104 et seq., [1]and general maritime law and that he was entitled to damages, including maintenance and cure obligations under the general maritime law. Thomas further appeals a trial court judgment denying his motion for new trial. For the reasons that follow, we affirm the judgments of the trial court.

         TIMELINESS OF APPEAL

         At the outset, we note that the timely filing of a motion for appeal is a condition precedent for an appellate court properly to obtain jurisdiction over an action. Dupuy v. Dupuy, 2000-2744 (La.App. 1st Cir. 3/28/01), 808 So.2d 562, 565. Absent the timely filing of an appeal, or petition for judicial review of an administrative ruling, the courts of this state lack jurisdiction to review that ruling. Robinson v. City of Baton Rouge, 566 So.2d 415, 418 (La.App. 1st Cir. 1990). An appellate court can dismiss an appeal at any time for lack of jurisdiction if it is untimely. La. C.C.P. art. 2162.

         Following a jury trial, the trial court signed a judgment on May 15, 2017. Notice of the judgment was issued on the same date. From the record, it appears that the motion for new trial was not filed until June 2, 2017, which is untimely. "The delay for applying for a new trial shall be seven days, exclusive of legal holidays. The delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913." La. C.C.P. art. 1974. If the motion for new trial is untimely, the January 10, 2018 devolutive appeal taken from the May 15, 2017 judgment is also untimely. See La. C.C.P. art. 2087; Dupuy, 808 So.2d at 565. After a hearing, the trial court denied the motion for new trial on December 4, 2017. Thomas filed a devolutive appeal from the May 17, 2017 judgment and the December 4, 2017 denial of the motion for new trial on January 10, 2018. On September 21, 2018, this court issued an ex proprio motu rule to show cause as to whether or not the appeal should be dismissed as untimely. Thomas filed a response to the rule to show cause attaching several documents and arguing that he had timely fax filed his motion for new trial in compliance with La. R.S. 13:850. Since this court could not receive the new evidence submitted by Thomas, and the record showed that the appeal was untimely, on November 13, 2018, we issued an interim order remanding the matter to the trial court to make an express determination as to the precise date on which the motion for new trial was filed. See Hazey v. McCown, 2001-0929 (La.App. 1st Cir. 5/10/02), 818 So.2d 932, 936.

         On December 13, 2018, the record was supplemented with several documents. Another panel of this court referred the rule to show cause to this merits panel. Even after the supplementation of the record, the record did not contain sufficient information for this court to make a factual determination as to whether Thomas complied with the requirements of La. R.S. 13:850[2] when the motion for new trial was filed. Therefore, we issued an interim order to the trial court on March 21, 2019, ordering the trial court to conduct an evidentiary hearing to determine the precise date on which Thomas fax filed his motion for new trial and the precise date on which the original pleading and filing fees were delivered to the trial court, as well as to issue a per curiam with the trial court's findings on these issues.

         In compliance with this court's order, the trial court held an evidentiary hearing and submitted a per curiam to this court, determining that Thomas fax filed the motion for new trial on May 24, 2017, and filed the original motion for new trial, along with the applicable filing fees, on June 2, 2017. Therefore, Thomas complied with La. R.S. 13:850 and timely filed the motion for new trial. Consequently, we maintain this appeal.

         FACTS AND PROCEDURAL HISTORY

         Thomas, an Enforcement Agent with LDWF, was injured on or about February 11, 2012, when he tripped on a bow rope while working on a boat owned by LDWF. As a result, he sought recovery from LDWF, claiming negligence pursuant to the Jones Act, unseaworthiness of the vessel under general maritime law, and violation of the maintenance and cure obligations under general maritime law. Thomas amended his petition, alleging permanent and total disability and grievous physical and mental pain and anguish.

         On the day of this accident, Thomas was investigating a deer hunting complaint near a bayou and canal, which required the use of a boat. Thomas testified that even though he was assigned to use the particular boat at issue, other agents were allowed to use it. He also stated that the boat needed many repairs before the date of his injury. On a previous occasion, he had broken one of the guideposts off the trailer, which was used to launch the boat into the water, and he had notified his supervisor of that incident. Additionally, the particular boat he used on the day of the accident contained a broken bow rope that was approximately eight-feet long and shorter than normal. In order to launch the boat, Thomas added another piece of rope to the shortened bow rope. Thomas explained that he had previously asked LDWF to replace the bow rope, but LDWF refused. Since this particular boat did not have a side rope, he used the bow rope as a side rope when he needed to attach to another boat. Therefore, he could not keep the bow rope in a compartment, as he would not be able to reach it in time if he had to attach to another boat. On the date of his injury, the water level was high for the time of year. The boat was a twenty-two-foot boat on an approximately thirty-foot trailer. As Thomas was attempting to launch the boat into the water by himself, the wind and current pushed the boat sideways, causing it to stop suddenly. At the time, Thomas was attempting to "winch" the boat so that he could pull the trailer out of the water. Thomas had placed the bow rope on a step, which slid to the deck when the boat shifted, causing Thomas to trip on the bow rope and fall to the deck injuring himself. Thomas explained that had the guideposts been properly installed on the trailer, the boat would have stayed in the center even under the weather conditions that day.

         On cross-examination, Thomas agreed that he was responsible for the general safety of the boat and for his own safety. He had also signed documents in 2009 and 2010 stating that an inspection must be completed prior to the use of a boat and that he was to check for unseaworthiness. Thomas reiterated on cross-examination that he had to lengthen the bow rope for the job he was performing, which was checking on other boaters, especially since he was working by himself. He also testified that even if he had exchanged the shorter bow rope with another boat's bow rope, it would have fallen on the deck. Thomas testified that he placed the coiled bow rope on a step, and during the movement of the boat, the bow rope fell to the deck, tripping him.

         Lieutenant Cullen Sellers, Thomas's immediate supervisor, was unaware prior to the accident that the guidepost on the boat was broken or that the bow rope was too short. He only learned of these problems after the current lawsuit was filed and Thomas's deposition was taken. Captain Leonard Yokum, who was Sellers's supervisor, testified that if anything was wrong with the boat, Thomas was required to notify his immediate supervisor, who would then tell the employee to take it to the repair shop to get an estimate. He also stated that there was no evidence that Thomas attempted to get an estimate for repair of either the guidepost or the bow rope prior to the accident.

         A jury trial was held on March 7-10, 2017, and a verdict was reached in the early morning hours of March 10, 2017. Prior to the beginning of trial, both parties submitted proposed jury instructions and jury verdict forms. During the trial, counsel for Thomas asserted that LDWF's proposed jury verdict form contained confusing and complicated questions. Counsel also objected to the inclusion of Questions 4(A)-(C), which pertain to the "primary duty doctrine," in the final jury verdict form.

         On March 9, 2017, the third day of trial, the jury arrived at 8:15 a.m. that morning, and after preliminary matters were handled, the jury was brought into the courtroom at 8:50 a.m. After both parties rested and the jury was charged, the jury began deliberations at 7:14 p.m. Between approximately 8:32 p.m. and 10:00 p.m., the jury returned to the courtroom on three separate occasions after sending several notes to the trial court on issues unrelated to this appeal. At 11:25 p.m., the jury indicated that they were deadlocked with a vote of 8-4 on Question 1 of the verdict form, which pertained to the negligence of LDWF. The trial court suggested to the parties that an Allen charge be given to the jury, [3] and counsel for Thomas suggested that due to the late hour, the jury be allowed to go home and return in the morning. The trial court declined to permit the jury to retire and return the next morning and offered either that a mistrial could be declared or the Allen charge could be read to the jury. After a discussion, the trial court noted that both parties were agreeable to the Allen charge, and the trial court read the charge to the jury. The jury returned its verdict at 1:01 a.m. on March 10, 2017. The trial court polled the jury until approximately 1:30 a.m. and afterward accepted the verdict. While Thomas's counsel verbally noted that the polling was confusing, neither party objected to the jury polling or the acceptance of the verdict by the trial court.

         On March 22, 2017, Thomas filed a motion for mistrial, alleging an inconsistent verdict; that no one was able to tally accurately the count of the jury polling; and that one of the jurors was biased against Thomas prior to the beginning of the trial, While no transcript from the motion for mistrial hearing or an order in conjunction therewith appears in the record, the minutes indicate that the trial court denied the motion for mistrial. Thereafter, the trial court signed a judgment in accordance with the jury's verdict on May 15, 2017. Thomas filed a motion for new trial again alleging an inconsistent verdict and that no one kept an accurate count during jury polling. In support of the motion for new trial, Thomas's counsel argued that he did not contest the polling count due to the late hour (around 1:30 a.m.). The trial court denied the motion for new trial on December 4, 2017, and issued written reasons for its denial. Thomas appeals the May 15, 2017 judgment and the December 4, 2017 denial of the motion for new trial.

         ASSIGNMENTS OF ERROR

         Thomas asserts the following assignments of error:

1) The trial court erred when it entered judgment on a clearly and irreconcilably inconsistent jury verdict because the jury's affirmative response to question number 4(b) contradicted responses to question numbers 6 and/or 2 on the verdict form.
2) The trial court erred when it provided the jury a verdict form that was confusing, misleading and led to an inconsistent jury verdict because question number 4 was included over [Thomas's] objections.
3) The trial court erred when it denied [Thomas's] Motion for New Trial, abusing its discretion by failing to grant a new trial on peremptory grounds in the face of clear legal errors, or on discretionary grounds when there were good grounds therefor, including the 17-hour day the jury worked and clear evidence of jury exhaustion and confusion during polling for which there was no accurate accounting.

         APPLICABLE LAW

         Admiralty claims may be brought in federal court pursuant to its admiralty jurisdiction or in state court under the savings to suitors clause. See 28 U.S.C. § 1333. In either case, federal substantive maritime law applies. Graham v. Offshore Specialty Fabricators, Inc., 2009-0117 (La.App. 1st Cir. 1/8/10), 37 So.3d 1002, 1008. State appellate courts sitting in maritime cases apply state standards of review. See Milstead v. Diamond M Offshore, Inc., 95-2446 (La. 7/2/96), 676 So.2d 89, 96. Louisiana appellate courts apply the manifest error-clearly wrong standard of review of facts in general maritime and Jones Act cases. Graham, 37 So.3d at 1009. The two-part test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of the trier of fact; and 2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La. 1987). Thus, if there is no reasonable factual basis in the record for the trier of fact's finding, no additional inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a factual finding only if, after reviewing the record in its entirety, it determines the factual finding was clearly wrong. See Stobart v. State, through Dep't of Transp. and Dev., 617 So.2d 880, 882 (La. 1993). If the trial court's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse. Where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Graham, 37 So.3d at 1009.

         The Jones Act allows an injured seaman to bring a negligence suit against his employer. 46 U.S.C. § 30104. The employer's potential liability extends to all personal injuries arising during the course of the seaman's employment, but proof of negligence is essential to recovery. Foster v. Destin Trading Corp., 96-0803 (La. 5/30/97), 700 So.2d 199, 208. Such negligence may arise in many ways, including the failure to use reasonable care to provide a seaman with a safe place to work, the existence of a dangerous condition on or about the vessel, or any other breach of the duty of care. Zentner v. Seacor Marine, Inc., 2006-2049 (La.App. 1st Cir. 10/24/07), 977 So.2d 962, 965. The duty of care owed by an employer under the Jones Act is that of ordinary prudence, namely, the duty to take reasonable care under the circumstances. Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 336 (5th Cir. 1997) (en banc). The seaman bears the evidentiary burden of proving that a breach of the duty owed by the employer was a cause of his injuries. Foster, 700 So.2d at 208. A seaman is obligated under the Jones Act to act with ordinary prudence under the circumstances. The circumstances of a seaman's employment include not only his reliance on his employer to provide a safe work environment but also his own experience, training, or education. The reasonable person standard in a Jones Act negligence action becomes that of the reasonable seaman in like circumstances. Gautreaux, 107 F.3d at 339 (overruling jurisprudence stating the seaman has only a slight duty of care to protect himself from the negligence of his employer and attributing to the employer a higher duty of care than that required under ordinary negligence principles).

         The owner's duty to furnish a seaworthy ship is absolute and completely independent of the duty under the Jones Act to exercise reasonable care. Graham, 37 So.3d at 1010. The ship owner's exposure for unseaworthiness is a form of liability without fault, in that liability is imposed upon the vessel owner, whether the owner is the injured seaman's employer or a third party, and without regard to his due care or negligence. It applies if the seaman's injury was caused by a defective condition of the ship, its equipment, or appurtenances. Graham, 37 So.3d at 1010. Unseaworthiness can also be manifested by an unsafe method of work, such as the failure by a ship owner to provide adequate equipment for the performance of an assigned task. Graham, 37 So.3d at 1010. This duty is nondelegable; it extends even to conditions of unseaworthiness created by third parties without any knowledge on the part of the owner. Foster, 700 So.2d at 209 n.5. To establish the requisite proximate cause in an unseaworthiness claim, a plaintiff must prove that the unseaworthy condition played a substantial part in bringing about or actually causing the injury and that the injury was either a direct result or a reasonably probable consequence of the unseaworthiness. Graham, 37 So.3d at 1010. A plaintiffs own fault will proportionately reduce his recovery for injuries caused by negligence or unseaworthiness. See Foster, 700 So.2d at 209.

         At trial, LDWF relied upon the defense of the primary duty doctrine, and requested a jury charge and corresponding jury interrogatories in connection therewith. This doctrine was first articulated by Judge Learned Hand in Walker v. Lykes Bros. S.S. Co.,193 F.2d 772, 773 (2d Cir. 1952). The primary duty doctrine provides that when a seaman is injured due to a breach of a duty he has consciously assumed as a term of his employment, he is barred from recovery under the Jones Act or a general maritime unseaworthiness claim. Walker, 193 F.2d at 773. Walker distinguished between an employee's duty to exercise ordinary prudence for his own protections, which is imposed on everyone by the law, and an employee's affirmative duty to his employer, which is ...


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