Nuzum v. Marathon Oil Company ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 00-30472
Summary Calendar
____________________
RANDY NUZUM; ET AL.,
Plaintiffs,
RANDY NUZUM; CRAIG BRIGALIA,
Plaintiffs-Appellants,
versus
MARATHON OIL COMPANY,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(98-CV-3440-K)
_________________________________________________________________
March 2, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Primarily at issue in this Louisiana diversity action is
whether Marathon Oil Company was negligent as a matter of law,
thereby creating an unsafe work environment in which employees of
an independent contractor, Turner Industries, Inc., allegedly
received respiratory injuries.
*
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this opinion should not be published and is not precedent except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.
In January 1998, three Turner employees — Garland Landry, and
plaintiffs Randy Nuzum and Craig Brigalia — performed maintenance
work at Marathon’s oil refinery. During the welding process, the
pipe on which they worked emitted smoke. Nuzum and Brigalia later
were found to have respiratory injuries.
In response to interrogatories, the jury found Marathon not
negligent.
Claiming our standard of review is de novo,
Appellants/plaintiffs assert: the relevant facts are not disputed;
that the issue is a purely legal question — whether Marathon’s
issuance of a “hot work” permit and/or its failure to appropriately
test the area for toxic fumes after reported problems engendered a
duty for which it can be held liable. They maintain the standard
of review is de novo.
Fifth Circuit precedent does not explicitly state that a
prerequisite to seeking a new trial on appeal is moving for a new
trial in the district court. But see Wells Real Estate, Inc. v.
Greater Lowell Board of Realtors, 850 F.2d 803, 811 (1st Cir. 1998)
(“Where the district court’s ruling would call into play a
discretionary matter, peculiarly appropriate for that court, it
becomes more important to bring the error first to that court’s
attention. Thus, a motion for new trial must be made in the first
instance before the trial court, particularly where the weight of
the evidence is at issue.... Plaintiff here never moved for a new
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trial, on weight of the evidence or any other ground. This claim
too, then, has not been preserved for appeal.” (ellipses and
citations omitted)).
In any event, the issue of law at hand was not properly
presented in district court. Needless to say, it is our court’s
“longstanding practice [to] refus[e] to consider issues raised for
the first time on appeal, absent plain error”. Douglas v. United
Servs. Automobile Assoc., 79 F.3d 1415, 1422-23 (5th Cir. 1996);
see Jones v. Jones, 163 F.3d 285, 304 (5th Cir. 1998) (“No
authority need be cited for the rule that issues raised for the
first time on appeal are reviewed only for plain error.”).
For two reasons, we conclude no error, plain or otherwise, has
occurred in submitting the case to the jury: first, under
Louisiana law, factual issues were implicated in the duty inquiry;
second, even if a duty existed, the issue of Marathon’s negligence
was properly submitted to the jury because the elements of
causation and injury implicated factual questions.
Under Louisiana law, “in order to prevail in a negligence
action, a plaintiff must prove: 1) the conduct in question was the
cause-in-fact of the resulting harm; 2) defendant owed a duty of
care to plaintiff; 3) the requisite duty was breached by the
defendant; 4) the risk of harm was within the scope of protection
afforded by the duty breached”. Peterson v. Gibralter Savs. &
Loan, 733 So. 2d 1198, 1203-04 (La. 1999). Appellants are correct
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in stating that, “whether a duty is owed is a question of law”, id.
at 1204; however, this simply means the court must instruct the
jury in the applicable duty, Boykin v. Louisiana Transit Co., Inc.,
707 So. 2d 1225, 1231 (La. 1998) (“Duty generally is a question of
law, and the judge will instruct the jury in a jury trial on the
applicable duty or will apply that duty in a bench trial.”). “The
existence of a duty and the scope of liability resulting from a
breach of that duty must be decided according to the facts and
circumstances of the particular case.” Fowler v. Roberts, 556 So.
2d 1, 7 (La. 1990). Therefore, the inquiry into the mere existence
of duty involved factual questions.
Furthermore, even assuming Marathon owed plaintiffs a duty,
factual questions remained as to the breach of that duty and the
cause of plaintiffs’ injuries. And finally, the credibility of
Nuzum’s and Brigalia’s testimony was at issue; of course,
credibility is a jury issue. E.g., United States v. Restrepo, 994
F.2d 173, 182 (5th Cir. 1993) ("The jury is the final arbiter of
... the credibility of witnesses.").
Because the issue of Marathon’s negligence involved factual
questions, the district court did not err in submitting the case to
the jury, and the judgment of the district court is
AFFIRMED
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