Watson v. Third Shipmore Assoc

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-40552
Summary Calendar
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DONALD WATSON,
Plaintiff-Appellant,
versus
THIRD SHIPMORE ASSOCIATES;
MARITIME OVERSEAS CORPORATION,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas, Beaumont
1-96-CV-637
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May 27, 1999
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
This appeal arises from a negligence action under the
Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 905(b)
(“LHWCA”). The appellant, Donald Watson, a ship repairman, brought
suit against Third Shipmore Associates and the Maritime Overseas
Corporation for injuries he sustained during a slip and fall on the
gangway of the M/V OVERSEAS NEW YORK, on February 4, 1996.1
*
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this opinion should not be published and is not precedent except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.
1
Third Shipmore Associates and the Maritime Overseas
Corporation are the owners and operators of the vessel.
Watson broke the tibia and fibula bones in his left leg. The
district court concluded that the defendants negligently permitted
ice from the sleet and freezing rain to accumulate on the gangway
and handrails of the vessel, and that such negligence was the
proximate cause of Watson’s injuries. The district court awarded
Watson $175,000 in damages, but reduced the award to $17,500, plus
prejudgment interest, on the grounds that Watson’s individual
negligence contributed ninety percent to his injuries. For the
following reasons, we affirm.
On appeal, Watson argues that the district court erred in
finding him ninety percent contributorily negligent, as there
exists no evidence that he did not exercise reasonable care in
walking up the gangway. Neither Third Shipmore Associates nor the
Maritime Overseas Corporation appeal the district court’s finding
of liability. Both contend, however, that the district court
properly applied the comparative fault principles under the LHWCA.
The district court’s apportionment of fault, based on the
respective negligence of the parties, is a factual finding that we
review for clear error. See Manuel v. Cameron Offshore Boats,
Inc., 103 F.3d 31, 33 (5th Cir. 1997); Forrester v. Ocean Marine
Indem. Co., 11 F.3d 1213, 1216 (5th Cir. 1993). Thus, we will not
upset a district court’s finding of contributory negligence unless
we are left with a definite and firm conviction that a mistake has
been made. See Reich v. Lancaster, 55 F.3d 1034, 1045 (5th Cir.
1995) (citations omitted).
2
After a careful review of the record, and after thorough
consideration of the arguments raised by the parties on appeal, we
are more than satisfied that the district court did not err in
finding Watson ninety percent at fault for his slip and fall.
Regarding Watson’s contributory negligence, the district court made
the following factual findings: (1) at the time of Watson’s
accident aboard the M/V OVERSEAS NEW YORK, it was sleeting and
freezing rain; (2) the ice on the gangway where Watson fell was
both open and obvious; (3) the gangway was properly lighted, and it
also had non-skid threads; (4) Watson, however, was intoxicated at
the time of his fall; (5) he also wore improper footwear aboard the
vessel-–cowboy boots with smooth leather soles; and (6) he failed
to use proper causation when boarding the vessel.
Watson also testified that prior to his fall he consumed
approximately five or more alcoholic beverages. Indeed, Watson’s
medical records indicate that he remained drowsy due to the effects
of the alcohol for some three hours after the accident. Watson
further testified that he knew that the gangway would be icy, and
that he was aware that the gangway would be slippery. Finally,
Watson, who had approximately fourteen years of experience in ship
maintenance and repair, also knew that the gangway was constructed
of steel. Notwithstanding his knowledge of these risks, the record
is clear that Watson voluntarily proceeded up the gangway wearing
only slick-soled cowboy boots. We agree with the district court
that in doing so, Watson proceeded at his peril.
3
In sum, we find that the evidence amply supports the district
court’s conclusion that Watson was ninety percent contributorily
negligent. Therefore, the judgment of the district court, in all
aspects, is
A F F I R M E D.
4