Ricky Veals v. Edison Chouest Offshore, LLC , 354 F. App'x 843 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 29, 2009
No. 09-30259 Charles R. Fulbruge III
Summary Calendar Clerk
RICKY VEALS,
Plaintiff-Appellant
v.
NAUTICAL ADVENTURES, LLC; PRIDE OFFSHORE INC.,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:06-CV-3776
Before HIGGINBOTHAM, CLEMENT and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Ricky Veals filed suit for personal injuries sustained during his transport
from an offshore oil rig to a nearby vessel. Following Veals’s presentation of
evidence at trial, the district court granted the defendants’ Rule 50(a) motion for
judgment as a matter of law. We AFFIRM.
Veals’s claims stem from an accident on the M/V C-HERO, a vessel owned
and operated by defendant Nautical Ventures, LLC. At the time of the incident,
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 09-30259
Veals was an employee of Sperry Sun/KBR, working as a sample catcher on an
offshore oil rig. After an altercation with a supervisor, Veals was ordered off the
rig. In order to reach the shore, Veals first had to be transferred in a personnel
basket from the rig to the M/V C-HERO. The crane used for personnel basket
transport was operated by defendant Pride Offshore, Inc. Veals allegedly
informed a Pride employee that he had never ridden a personnel basket before,
and did not receive any instruction on the proper way to exit it.
Veals boarded the basket, which according to his own testimony at trial,
landed flat on the deck of the M/V C-HERO. The sea was calm, there was no
wind, and the weather was clear. Stepping off, Veals placed both feet on the
ship. He then fell backwards, sustaining personal injuries.
Veals brought suit against Nautical Ventures, which was the owner and
operator of the vessel, and against Pride, the operator of the personnel basket.
At the jury trial, Veals testified that Pride failed to follow its own procedures
that required employees to instruct first-time riders on the appropriate methods
for getting on and off. There was no evidence of negligent maintenance or
operation other than the absence of instructions to a first-time rider.
After Veals presented his case, defendants moved for judgment as a matter
of law. The judge granted the motion, finding no evidence that negligence by
either defendant caused the fall and injury. On appeal, Veals does not make any
argument concerning possible error in granting judgment to the vessel owner.
Thus, the only question we must answer is whether there was error in the
judgment in favor of the operator of the personnel basket.
We review a grant of judgment as a matter of law pursuant to Rule 50 de
novo, applying the same standard used in the district court. Rutherford v.
Harris County, Texas, 197 F.3d 173, 178 (5th Cir. 1999). In a jury trial,
judgment as a matter of law is appropriate where a party has been fully heard
on an issue, and facts and inferences point so strongly in favor of one party that
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No. 09-30259
reasonable jurors could not arrive at a contrary verdict. Wallace v. Methodist.
Hosp. Sys., 271 F.3d 212, 219 (5th Cir. 2001). A mere scintilla of evidence is
insufficient to present a question for the jury. Id.Here, Veals alleged injury under two separate statutes. First, he sought
relief under Louisiana tort law. That law operates as surrogate federal law
pursuant to the Outer Continental Shelf Lands Act (“OCSLA”). 43 U.S.C. §
1331, et seq. No issue is raised here as to whether OCSLA applies, and thus we
accept that it does and that it borrows Louisiana tort law for this case.
The Louisiana Civil Code provides that “[e]very act whatever of man that
causes damage to another obliges him by whose fault it happened to repair it.”
L A . C IV. C ODE A NN. art. 2315 (1999). Louisiana courts have interpreted this
section to require proof of the basic elements of negligence. Namely, a plaintiff
must prove: (1) defendant had a duty to conform his conduct to a specific
standard; (2) defendant’s conduct failed to conform to the appropriate standard;
(3) defendant’s substandard conduct was a cause-in-fact of the plaintiff’s injuries;
(4) defendant’s substandard conduct was a legal cause of the plaintiff’s injuries;
and (5) actual damages. Perkins v. Entergy Corp., 782 So. 2d 606, 611 (La.
2001). Failure to prove even one of these elements precludes recovery. Mathieu
v. Imperial Toy Corp., 646 So. 2d 318 (La. 1994).
The district court expressly assumed that Veals’s factual allegations were
true. Specifically, the court accepted that Pride failed to give instructions to
Veals on the procedures for exiting the basket. The causation inquiry is
whether, but for the defendants’ substandard conduct, the accident would not
have occurred. Perkins, 782 So. 2d at 611. Veals did not allege that the
instructions he should have received would have prevented the type of injury he
suffered. He presented evidence that Pride typically instructed riders to bend
their knees when the basket landed, but he did not testify that Pride
recommended procedures applying to stepping off the basket onto the deck of a
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No. 09-30259
vessel. Although he claimed that the boat was rocking when he first landed,
Veals did not present evidence that the boat operator acted negligently, that the
crane malfunctioned, or that the weather was inclement. Indeed, undisputed
evidence showed that the weather was calm and the wind was not blowing. Veals
admitted that he did not know how his fall occurred.
On appeal, Veals complains that the trial judge made credibility
determinations, weighed evidence, and did not draw all reasonable inferences
in his favor. We disagree. Although the trial judge recounted some of the
testimony in the oral ruling on the Rule 50(a) motion, he expressly assumed that
Veals had not been properly warned. The absence of a warning was the only
issue in dispute. There simply was no evidence as to why Veals fell and
therefore nothing on which jurors could rely in assigning fault to the personnel
basket operator. Absent evidence that a proper warning could have prevented
the injury Veals suffered, he failed to make out a prima facie case for negligence.
Veals also sought relief pursuant to Section 905(b) of the Longshore and
Harbor Workers’ Compensation Act. 33 U.S.C. § 905(b). The only reference to
the statute is in a jurisdictional statement at the beginning of Veals’s brief. Not
having made any argument regarding the Act, Veals abandoned the issue. See
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
No reasonable juror could find that Veals proved a causal relationship
between his injuries and the defendants’ alleged conduct. We AFFIRM.
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