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
Arlen Braud, II Michelle O. Gallagher Steven D. Jackson
Mandeville, Louisiana Attorneys for Appellant/Plaintiff Dane
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.
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., 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.
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.
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.
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 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
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.
AND PROCEDURAL HISTORY
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.
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.
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.
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.
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.
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,  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.
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.
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
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.
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.
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
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.
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 ...