Palombo v. Cameron Offshr Boats, et ( 1997 )

UNITED STATES COURT OF APPEALS
for the Fifth Circuit
No. 96-30422
Summary Calendar
CHARLES EDWARD PALOMBO and MAYDELLE PALOMBO,
Plaintiffs-Appellants,
AETNA CASUALTY AND SURETY CO.,
Intervenor-Plaintiff-Appellant,
versus
CAMERON OFFSHORE BOATS, INC.; HANSA MARINE
INSURANCE CO., U.K. LTD.; INDEMNITY MARINE
ASSURANCE CO. LTD; NORTHERN ASSURANCE CO. LTD;
NORWICH UNION FIRE INSURANCE SOCIETY LTD;
SOVEREIGN MARINE & GENERAL INSURANCE CO., LTD;
and PRUDENTIAL ASSURANCE COMPANY, LTD,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
(93-CV-673)
February 13, 1997
Before REYNALDO G. GARZA, HIGGINBOTHAM, and DeMOSS, Circuit Judges.
PER CURIAM:*
This admiralty case involves a slip-and-fall injury aboard a
vessel. Charles Palombo, a vice president of marketing for Red Fox
Companies of New Iberia, La., fell as he attempted to step through
a doorway aboard the M/V David McCall III and suffered certain
injuries. The cause of the fall is not clear. Palombo maintains
that the defendants were negligent in the design and maintenance of
the deck of the vessel’s galley thereby causing Palombo’s fall and
consequent injuries. He and his wife sued in federal district
court seeking recovery of lost earnings, medical expenses, and
other damages based on their suffering.
The case was tried to the bench over three days in January,
1996. The district court found that Palombo had not shown any
condition at the threshold of the galley to be unreasonably
dangerous and had failed to prove, first, the existence of a mat at
the doorway, and second, that any such mat was defective.
Accordingly, the court entered judgment for the defendants. The
Palombos and Aetna Casualty and Surety Co., as intervenor, appeal.
The case, asserting personal injuries suffered upon a vessel
*
Local Rule 47.5 provides: "The publication of opinions that
merely decide particular cases on the basis of well-settled
principles of law imposes needless expense on the public and
burdens on the legal profession." Pursuant to this Rule, we have
determined that this opinion should not be published and is not
precedent except under the limited circumstances set forth in Local
Rule 47.5.4.
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in navigable waters, is governed by the negligence law established
under the maritime jurisprudence of the federal courts. This law
is informed by general principles of negligence law. S.C.
Loveland, Inc. v. East West Towing, 608 F.2d 160, 165 (5th Cir.
1979). The owner of a vessel has a duty to exercise reasonable
care under the circumstances to ensure that those aboard are not
injured. A plaintiff must prove that something aboard the vessel
created an unreasonable risk of injury, the vessel owner knew or
should have known of this danger, and that the owner failed to
eliminate the danger, and that this danger caused plaintiff’s
injuries.
Standard of Review
There are two issues in this case: 1) whether the design of
the doorway created an unreasonably dangerous condition, and 2)
whether there was a defective mat in front of the doorway that
caused the accident. The district court found that the doorway was
not unreasonably dangerous and that there was no mat and,
alternatively, if there was such a mat it was not defective. These
are both findings of fact which we review for clear error. Ober v.
Penrod Drilling Co., 726 F.2d 1035 (5th Cir. 1984) (Rule 52(a)
applies to bench trials conducted under the general maritime law).
A finding is “clearly erroneous” when although there is evidence to
support it, our review of the evidence leaves us with the “definite
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and firm conviction that a mistake was committed.” United States
v. United States Gypsum Co., 333 U.S. 364, 395 (1948).
We disagree with the appellants’ claim that we should exercise
de novo review of the facts in this case. They cite Movible
Offshore v. M/V Wilken A. Falgout, 471 F.2d 268 (5th Cir. 1973),
for the proposition that factual findings that are unclear,
conclusory, or contradictory are subject to de novo review. This
is incorrect. The cited case does not support this assertion and
could not, given that Rule 52(a) does not permit exceptions from
the clearly erroneous standard. We held in Movible Offshore that
such defective findings might be clearly erroneous, but we did not
stray from our traditionally deferential review posture. Likewise,
the cited case of Hydrospace-Challenger v. Tracor/MAS, Inc., 520
F.2d 1030 (5th Cir. 1975), does not support de novo review, as the
we remanded the case for more findings, all the while mindful of
our deferential role. Accord Thermo Elec. Corp. v. Schiavone
Constr. Co., 915 F.2d 770 (1st Cir. 1990) (likewise ordering remand
and not suggesting anything about discarding Rule 52(a) standard).
Whether the district court’s determinations here were “clearly
erroneous” is discussed below.
Claim of an Unreasonably Dangerous Condition
The appellants state that the district court failed to resolve
the question of whether the design of the door created a dangerous
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condition requiring the presence of some anti-slip device:
“Although it summarized the testimony in glorious narrative
fashion, the court below did not delineate how it resolved the
issue!” Appellant’s brief at 13. Our reading of the lower court’s
opinion leads us to disagree. The court clearly credited Borison’s
opinion and the testimony of various witnesses establishing the
absence of any previous accidents in reaching its conclusion that
there was no unreasonably dangerous condition. Opinion at 21-22.
As we stated in Movible Offshore, in situations involving ambiguous
findings we may refer to the court’s opinion to help interpret its
findings. 471 F.2d at 272 (citing American Propeller & Mfg. Co. v.
United States, 300 U.S. 475, 479-80 (1937)).
Palombo also claims that the uncontradicted testimony
demonstrated that the unusual design of the threshold mandated the
use of some sort of anti-slip device. This is not, however, a fair
summation of the evidence. Defendants’ expert Borison stated that
the design was not unreasonably dangerous and did not require any
sort of special safety measures:
Q: Is there any safety problem at all in your opinion with
just having a plain no-wax linoleum floor at the entrance
of a water tight door going into the galley on the David
McCall III?
A: No sir, none at all.
Rec. Vol. VII, pg. 530. That the district court chose to believe
Borison’s testimony over that of Palombo’s witnesses does not
mandate a finding that the lower court was incorrect. The judging
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of witness credibility is a matter peculiarly within the province
of the trial court and is deserving of the highest degree of
deference on appeal. E.g., Anderson v. City of Bessemer City, 470
U.S. 564, 575 (1985). Palombo has given us no reason to find any
error with the court’s choice here.
Claim of Defective Mat
The district court found that there was no mat at the
threshold. If there was such a mat, it found that it was not
defective. The appellants challenge this finding by stating that
this finding is facially contradictory and therefore clearly
erroneous. If the court had stated “there is no mat and it is not
defective,” we would be inclined to agree. This is not, however,
what it did. The court obviously credited witness testimony
establishing the nonexistence of the mat. However, the court went
further and essentially stated that even if there was a mat, it was
persuaded by the witness testimony that stated that this mat was
not defective. The court’s findings are not contradictory. In
fact, such alternative findings can often be helpful as they can
obviate the need for a remand for further fact finding when the
evidentiary basis for a fact is found to be insufficient on appeal.
As stated above, a district court’s credibility choices are to
be disturbed in only the rarest of situations and this is not one
of them. Further, the appellants have failed to provide us with
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any legal authority for their conclusion that findings in the
alternative are automatically “clearly erroneous.” We therefore
find no error with the court’s findings on this issue.
In sum, we are not persuaded that the lower court’s findings
are clearly erroneous. We accordingly affirm the lower court’s
judgment for the defendants.
AFFIRMED.
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