Andrew Knight v. Kirby Offshore Marine, L.L.C., et

Case: 19-30756 Document: 00515677640 Page: 1 Date Filed: 12/17/2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
December 17, 2020
No. 19-30756 Lyle W. Cayce
Clerk
Andrew Lee Knight,
Plaintiff—Appellant,
versus
Kirby Offshore Marine Pacific, L.L.C.,
Defendant—Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:17-CV-12456
Before Barksdale, Elrod, and Ho, Circuit Judges.
Rhesa Hawkins Barksdale, Circuit Judge:
Primarily at issue is whether, as a matter of law, Andrew Lee Knight
can be held contributorily negligent for his ankle injury underlying his Jones
Act negligence claim against Kirby Offshore Marine Pacific, L.L.C. (Kirby).
The district court concluded, inter alia: Kirby was negligent, based on an
order by its vessel’s captain to replace the stern line in unfavorable weather;
and Knight was contributorily negligent for placing the removed stern line
near him and subsequently stepping on it while carrying out that order,
reducing his damages award in proportion to his fault. AFFIRMED IN
PART; VACATED IN PART; REMANDED.
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I.
Knight was a seaman aboard the M/V SEA HAWK, a tugboat owned
by Kirby that was then towing a barge from the State of Washington to
Alaska. As an offshore tankerman, Knight was responsible for, inter alia, all
the deck labor: loading and discharging cargo, assisting with repairs, and
general heavy lifting for both vessels.
The SEA HAWK housed a stern line used when entering and exiting
ports to secure the barge to the tug. The line was more than 100-feet long
and several inches thick. At one point the line chafed. Once the vessels were
in the open sea and the stern line was no longer in use, the captain ordered
Knight and another crewmember, Ladd, to change out the line. When the
order was given, four-foot seas and winds of at least 20 miles an hour caused
the SEA HAWK to roll.
After Knight and Ladd removed the chafed line, they placed it on the
deck next to them. As they were installing the new line, Knight stepped on
the chafed line and injured his ankle. He testified that the rocking of the SEA
HAWK caused him to lose his balance. As discussed infra, Knight’s injury
prevents his returning to work in the same capacity.
Following the accident, Knight filed, inter alia, this Jones Act
negligence claim under 46 U.S.C. § 30104 et seq. Following a two-day bench
trial, the court concluded: Kirby was negligent because “there were safer
times to issue the order to change the line”; and Knight was contributorily
negligent because he failed to “watch his footing while replacing the chafed
stern line” and failed to “move the chafed stern line to a location on the boat
where he would not have stepped on it”. The court assigned equal fault to
each party.
For Knight’s injury, the court awarded, inter alia, $60,000 for past-
and-future general damages for pain and suffering, based on Knight’s
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continued complaints of pain and his doctor’s finding he had suffered, inter
alia, a 10% lower-extremity impairment. His total damages of approximately
$344,000 were reduced proportionate to his assignment of 50% fault.
In denying Knight’s Federal Rule of Civil Procedure 59(e) post-trial
motion to alter or amend judgment, the court rejected: Knight’s contention
that, as a matter of law, a seaman may not be held contributorily negligent for
carrying out an order; his challenge that Ladd must be equally at fault for the
placement of the stern line; and his claim that the award of $60,000 in general
damages was manifestly unjust.
II.
Knight maintains: the court erred, as a matter of law, by concluding
he was contributorily negligent, even though he was following an order at the
time of his injury; and, in the alternative, it clearly erred in finding him
contributorily negligent. Knight also contends the court clearly erred in
awarding him only $60,000 in general damages.
A.
We first consider whether, as a matter of law, a seaman may be held
contributorily negligent when he is complying with an order from his
superior. If he can, we turn to the district court’s finding Knight 50% at fault.
1.
The district court’s legal conclusions are reviewed de novo. E.g.,
Becker v. Tidewater, Inc., 586 F.3d 358, 365 (5th Cir. 2009). In challenging
the application of contributory negligence, Knight primarily relies on
Williams v. Brasea, Inc., 497 F.2d 67 (5th Cir. 1974), in which this court stated
in dictum, “a seaman may not be contributorily negligent for carrying out
orders that result in his own injury, even if he recognizes possible danger”,
id. at 73. Knight asserts this principle was reiterated and affirmed in an
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unpublished opinion in Ledet v. Smith Marine Towing Corp., 455 F. App’x 417
(5th Cir. 2011). Accordingly, Knight maintains that, as a matter of law, he
cannot be held negligent because he was following his captain’s order.
In its denial of Knight’s Rule 59(e) post-trial motion, the district court
correctly noted that Knight failed, before entry of judgment, to raise his
challenge to the application of contributory negligence. See Simon v. United
States, 891 F.2d 1154, 1159 (5th Cir. 1990) (“[Rule 59(e) motions] cannot be
used to raise arguments which could, and should, have been made before the
judgment issued. . . . [T]hey cannot be used to argue a case under a new legal
theory”) (citation omitted). Further, as previously stated, the proposition
urged by Knight is dictum in Williams; we lack any binding precedent
applying Williams to deny application of contributory negligence. In any
event, Knight’s contention fails.
The above-described dictum in Williams undeniably modifies the rule
in Jones Act negligence claims that “contributory negligence is an affirmative
defense that diminishes recovery in proportion to the seaman’s fault”.
Johnson v. Cenac Towing, Inc., 544 F.3d 296, 302 (5th Cir. 2008); 45 U.S.C.
§ 53 (mandating contributory negligence under the Federal Employees
Liability Act (FELA)), 46 U.S.C. § 30104 (incorporating FELA into the
Jones Act). In Williams, a supervisor was untangling a line caught on a winch
when he allegedly ordered his crewman to turn on the power, trapping the
supervisor’s hands and causing significant injury. Williams, 497 F.2d at 71.
Our court held: if the order was in fact given, the crewman could not be found
contributorily negligent for failing to ensure the supervisor was free from
danger before following the command. Id. at 73. More pertinent to this
appeal, Williams stated in dictum: a seaman cannot be held contributorily
negligent for following an order that results in his own injury. Id. (citation
omitted).
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Judges Ho and Elrod in their concurring and dissenting opinions,
respectively, do not agree that the above statement in Williams about a
seaman’s own injury is dictum. As discussed, the issue in Williams was a
supervisor’s, not a seaman’s, injury. Accordingly, the statement in Williams
concerning an injury to a seaman was unnecessary for deciding the issue
before the court: the supervisor’s injury. Therefore, the statement about the
seaman is dictum and, concomitantly, not binding precedent. E.g., United
States v. Segura, 747 F.3d 323, 328–29 (5th Cir. 2014) (“A statement is
dictum if it could have been deleted without seriously impairing the analytical
foundations of the holding and[,] being peripheral, may not have received the
full and careful consideration of the court that uttered it. A statement is not
dictum if it is necessary to the result or constitutes an explication of the
governing rules of law. If a statement is dictum, we are free to disregard it
from prior panel opinions when we find it unpersuasive.”) (cleaned up);
United States v. Rubin, 609 F.2d 51, 69 n.2 (2d Cir. 1979), aff'd, 449 U.S. 424(1981) (Friendly, J., concurring) (“A judge's power to bind is limited to the
issue that is before him; he cannot transmute dictum into decision by waving
a wand and uttering the word ‘hold[ing]’.”).
The dictum in Williams, or a similar limit on contributory negligence,
has been applied in other jurisdictions. The ninth circuit adopted a
categorical interpretation of Williams, applying the bar on contributory
negligence to all orders from a captain. See Simeonoff v. Hiner, 249 F.3d 883,
890 (9th Cir. 2001) (declaring Williams “persuasive, fair to crew and vessel
owners alike” because “[c]ompliance with orders from supervisors will
promote vessel safety and will aid efficacy of command at sea”). Other
courts, by comparison, apply Williams only to a supervisor’s specific orders,
allowing contributory negligence when there was a general order. See Weeks
Marine, Inc. v. Garza, 371 S.W.3d 157, 167 (Tex. 2012) (holding the rule in
Williams applies solely “when the seaman is ordered to do a specific task in
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a specific manner or is ordered to do a task that can be accomplished in only
one way”). Notably, but with no mention of Williams, both the third and
eighth circuits rely on the same distinction between general and specific
orders when considering contributory negligence under FELA, which, as
noted supra, is incorporated by the Jones Act. See Fashauer v. New Jersey
Transit Rail Operations, Inc., 57 F.3d 1269, 1279 (3d Cir. 1995) (“when the
employee is given a specific order—that is, where he or she is told to perform
a specific task in a particular way—he is not contributorily negligent”)
(internal quotation marks and citation omitted); Alholm v. Am. Steamship Co.,
144 F.3d 1172, 1179 (8th Cir. 1998) (“A seaman cannot be found
comparatively negligent [] when following an order to complete a task in a
specific manner.”).
Our court’s analysis of Jones Act negligence claims tracks the
distinction between general and specific orders. In Boudreaux v. United
States, 280 F.3d 461 (5th Cir. 2002), a supervisor ordered a seaman to
perform two jobs but “did not specifically instruct [plaintiff] on the order of
these tasks”, id. at 464. While the seaman and a fellow crewmember were
performing one of the tasks (involving transporting a 300-pound valve), one
of the seamen slipped on piping they had previously exposed, injuring
plaintiff. Id. at 464–65. Our court upheld the attribution of 50% fault to both
seamen. Id. at 467.
Similarly, in Pallis v. United States, 369 F. App’x 538 (5th Cir. 2010),
our court upheld the assignment of 75% fault to a seaman when he was
ordered to move trash and elected to carry the heavier objects without any
help, id. at 540, 546. In reducing the seaman’s award proportional to his
fault, we explained that a rule barring contributory negligence for all orders
would make “automatons of seamen” and abrogate the principle that a
seaman must perform his tasks with ordinary prudence. Id. at 542.
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This principle—seamen must act with ordinary prudence under the
circumstances—was affirmed by our court in Gautreaux v. Scurlock Marine,
Inc., 107 F.3d 331 (5th Cir. 1997) (en banc). There, we observed that prior
fifth circuit cases had “vacillated” in their pronunciations of the proper
standard of care for seamen in Jones Act negligence claims, describing the
duty as either “slight care”, “ordinary prudence”, or both. Id. at 337–38.
After extensive review, we held a seaman owes more than a “slight duty” to
look after his own safety. Id. at 339. Rather, a seaman is obligated to act
“with ordinary prudence under the circumstances” because “nothing in the
text or structure of the FELA–Jones Act legislation suggests that the
standard of care to be attributed to either an employer or an employee is
anything different than ordinary prudence”. Id. at 338–39.
On the other hand, in the earlier-referenced opinion for Ledet, after
the captain ordered a seaman to perform a highly specific task (tying a
pendant wire to a norman pin at a designated time), the seaman was injured.
Ledet, 455 F. App’x at 420. Although plaintiff was not found negligent, our
court observed that, even if he were, Williams would foreclose any reduction
of the award. Id. at 422. Unlike in the cases discussed supra (Boudreaux,
Pallis, and Gautreaux), we referenced Williams and expressly stated that it
remains applicable.
Of course, because Pallis and Ledet are unpublished, they are not
precedential; but, their reasoning can be persuasive. See 5th Cir. R. 47.5.4;
Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (recognizing
unpublished opinions issued after 1 January 1996 are not controlling
precedent but may be considered persuasive authority).
This survey of our case law shows the dictum in Williams, at most,
stands for the proposition that a seaman may not be found contributorily
negligent for carrying out a specific order from his superior that results in the
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seaman’s injury. A specific order is one that must be accomplished using a
specific manner and method and leaving the seaman with no reasonable
alternative to complete the assigned task. See Alholm, 144 F.3d at 1179;
Fashauer, 57 F.3d at 1278; see also Simeonoff, 249 F.3d at 891 n.4 (applying
Williams categorically while noting, “[w]hen a seaman completes an ordinary
task at sea, even if requested by a superior, contributory negligence may
mitigate damages if an injured seaman had alternatives available, and chose
the unreasonable course in completing that task”). Such a rule accepts the
earlier-referenced importance of a superior’s efficacious command at sea
while avoiding awarding unreasonable conduct. See Gautreaux, 107 F.3d at
339.
The order given Knight and Ladd was a general order and, therefore,
does not trigger the Williams’ dictum. As in Boudreaux, the order was simply
to change out equipment on the vessel—no additional instructions or
specifications were provided. See Boudreaux, 280 F.3d at 464 (reducing
seaman’s award of damages in proportion to his fault when he was ordered
to, inter alia, replace a valve). Changing out the chafed line fell within the
class of ordinary “heavy lifting” Knight performed routinely. Therefore, the
district court was not precluded, as a matter of law, from reducing his award
proportional to his fault.
2.
Accordingly, we address the contributory-negligence finding; findings
of fact are reviewed for clear error. E.g., Becker, 586 F.3d at 365. A finding is
clearly erroneous when the reviewing court is left with the definite and firm
conviction that a mistake has been made. E.g., Jackson v. OMI Corp., 245
F.3d 525, 528 (5th Cir. 2001).
Knight contends the district court clearly erred in finding him 50% at
fault. It did not clearly err in finding Knight was negligent in stepping on the
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chafed line, but it did in finding him negligent for failing to move it. (Knight’s
claim that Ladd must be equally at fault for Knight’s injuries was not raised
until Knight’s above-discussed post-trial motion and was properly denied.
Obviously, this should have been raised before trial. Fed. R. Civ. P. 59(e);
Boudreaux, 280 F.3d at 467 n.3.)
Again, the standard of care for a seaman under the Jones Act is that
of an ordinarily prudent seaman under like circumstances. Gautreaux, 107
F.3d at 339. Regarding the court’s first finding of negligence, Knight had the
duty to watch where he stepped. The record shows he was an experienced
tankerman, was trained to change the line safely, had experience with rolling
vessels, and knew the chafed line was on the deck while he was preparing to
load the new one. As stated supra, the court did not clearly err in imputing
negligence to Knight for stepping on the line.
The court’s second negligence finding, pertaining to the placement of
the chafed line on the deck, lacks any record evidence. Knight testified he
stepped on the line after it was taken off the winch but before the new one
was installed. Ladd, who was working with Knight, testified that placing the
chafed line to the side was the standard operating procedure.
Commonsensically, a seaman should not place obstacles near his working
area. But Kirby does not present any evidence showing Knight placed the
chafed line on the deck in an imprudent manner. Moreover, the SEA
HAWK’s captain, who gave the order to Knight and Ladd, watched the
entire procedure and testified there were no irregularities in how they
performed their task. He further explained they did not haphazardly throw
the chafed line on the deck.
In the absence of any evidence, the court’s finding of 50% negligence
on the basis, in part, of Knight’s placement of the chafed stern line is clearly
erroneous. See Boudreaux, 280 F.3d at 467 (finding seaman 50% negligent for
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stepping on piping he had previously exposed because he, inter alia, conceded
there was a safer procedure).
B.
A court’s damages award is a finding of fact reviewed for clear error.
Barto v. Shore Constr., L.L.C., 801 F.3d 465, 473 (5th Cir. 2015). As such, the
award is not clearly erroneous if it is plausible in the light of the record.
Comar Marine, Corp. v. Raider Marine Logistics, L.L.C., 792 F.3d 564, 574 (5th
Cir. 2015). General damages are available for pain and suffering and their
negative impact on one’s normal life routines. Barto, 801 F.3d at 473. “Any
amount to be awarded for pain and suffering must necessarily depend to a
great extent on the trial court’s observation of . . . plaintiff and its subjective
determination of the amount needed to achieve full compensation.” Hyde v.
Chevron U.S.A., Inc., 697 F.2d 614, 632 (5th Cir. 1983).
As mentioned above, the court denied Knight’s contention in his post-
trial motion that the general damages award of $60,000 was manifestly
unjust. The court observed that there are factually analogous cases where
courts awarded lower or similar damages for plaintiffs with comparable
disabilities. Accordingly, the court reasoned, Knight’s insistence that his
award was unjust failed. We agree.
Neither party disputes the court’s factual findings regarding Knight’s
injuries or recovery. Knight underwent three reconstructive surgeries on his
ankle and attended approximately 100 physical-therapy sessions. His
orthopedic surgeon assigned him a 14% foot-and-ankle impairment, 10%
lower-extremity impairment, and 4% whole-person impairment. Knight
cannot return as an offshore tankerman, but he can work as a shore
tankerman (a position requiring less strenuous activity).
Knight maintains the court’s findings support an award greater than
$60,000 in general damages. In addition to a Louisiana federal-court case,
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he relies heavily on analogous Louisiana state-court cases. In that regard, our
court looks to relevant federal and state cases within the district court’s
jurisdiction in determining whether damages were excessive. See Moore v.
M/V ANGELA, 353 F.3d 376, 385 (5th Cir. 2003) (holding award was
excessive because of, inter alia, factually similar Louisiana appellate-court
decisions); Lebron v. United States, 279 F.3d 321, 326 (5th Cir. 2002) (“we
will decline to reduce damages where the amount awarded is not
disproportionate to at least one factually similar case from the relevant
jurisdiction”) (internal quotations and citation omitted). We see no reason
for not applying a similar standard in assessing whether damages were
inadequate. See, e.g., Dominique v. Georgia Gulf Corp., No. 96-30418, 1996
WL 670315, at *3 (5th Cir. Nov. 7, 1996) (acknowledging “factually similar
cases in Louisiana” and holding damages award was not inadequate).
Knight compares his injury to that in Wynne v. Trotter, 46 So. 3d 678(La. Ct. App. 2010). There, plaintiff suffered a fracture in his right heel,
causing a 12% foot-and-leg impairment. Id. at 685. Plaintiff developed a
permanent limp, lost his ability to run and stand for extended periods of time,
and did not undergo surgery to repair the injury. Id. The court upheld an
award of $185,000. Id. at 685–86. The present-day value of the award,
according to Knight, is roughly $217,000. See Ledet, 455 F. App’x at 423
(calculating present-day value of prior award using Bureau of Labor
Statistics’ CPI Inflation Calculator, available at http://data.bls.gov/cgi-
bin/cpicalc.pl).
Knight also cites Baham v. Nabors Drilling USA, LP, 721 F. Supp. 2d
499 (W.D. La. 2010): plaintiff fractured his ankle, precipitating surgery and
the insertion of two screws, id. at 516. Plaintiff suffered a 35% foot-and-ankle
impairment, 25% lower-extremity impairment, and 10% whole-person
impairment. Id. at 517. The court awarded $250,000 in general damages. Id.
at 520.
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Although Knight insists Wynne and Baham necessitate a greater
award, other Louisiana state-court cases with comparable injuries affirm
amounts similar to Knight’s. In Seymour v. Cigna Ins. Co., 622 So. 2d 839(La. Ct. App. 1993), plaintiff fractured his ankle, underwent two surgeries,
received monthly treatment from his orthopedic surgeon for four years, and
required injections of anesthesia into his sympathetic nervous system. Id. at
844. The court upheld $35,000 in general damages, id., the equivalent of
$63,000 today (conversion done using earlier-referenced CPI Inflation
Calculator).
Relatedly, in Broussard v. Oak Trace Apartments, 69 So. 3d 1257 (La.
Ct. App. 2011), plaintiff sustained a broken ankle, underwent surgery, and
testified “she [was] no longer able to do things she used to do”, including
basic activities like walking on a treadmill. Id. at 1262–63. The court upheld
a $50,000 award. Id. at 1263. And in Laborde v. St. James Place Apartments,
928 So. 2d 643 (La. Ct. App. 2006), plaintiff suffered a sprained ankle and
underwent surgery, id. at 646. She was diagnosed with a 5% total-body
disability and attended two months of physical therapy. Id. The court upheld
an award of $20,000. Id. at 648.
Granted that prior general-damage awards are not always controlling,
our clearly-erroneous standard of review and the range of awards in factually
analogous cases preclude reversing the award of $60,000. See Lebron, 279
F.3d at 326. While it may be lower on the scale of adequate amounts, it is not
outside the bounds of plausibility to constitute clear error.
III.
For the foregoing reasons, the judgment is AFFIRMED IN PART
and VACATED IN PART; this matter is REMANDED for the district
court, consistent with this opinion, to find the percentage of contributory
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negligence based solely on Knight’s stepping on the line and, concomitantly,
to decide his total damages award.
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James C. Ho, Circuit Judge, concurring:
I join parts I, II.A.2, II.B, and III of the majority opinion. As for part
II.A.1, I agree that our decision in Williams v. Brasea, 497 F.2d 67 (5th Cir.
1974), does not control the outcome of this case. Williams states that “a
seaman may not be contributorily negligent for carrying out orders that result
in his own injury, even if he recognizes possible danger.” Id. at 73. Judge
Barksdale dismisses this statement as mere dicta (because Williams involved
a supervisor rather than a seaman), while Judge Elrod regards this statement
as essential to the ratio decidendi of our decision. But we surely all agree that
“[a] court [may] distinguish[] a precedent by discerning material differences
between it and the present dispute.” Bryan A. Garner et al., The
Law of Judicial Precedent 97 (2016). After all, “‘[i]t is common to
see a later narrowing of a [holding] that, in the heat of the moment and of the
argument, was too broadly phrased. The original judge, later courts will say,
did not have the other possible sorts of cases in mind.’” Id. at 98 (quoting
Karl Llewellyn, The Case Law System in America 15 (Paul
Gewirtz ed., 1989)). That is precisely the approach we are taking here.
“Williams, at most, stands for the proposition that a seaman may not be
found contributorily negligent for carrying out a specific order from his
superior that results in the seaman’s injury.” Ante, at 8 (emphasis added).
See generally ante, at 5–7 (collecting cases distinguishing between general and
specific orders). And the order given to Knight and Ladd was a general order,
not a specific one. So Williams is distinguishable from this case. Accordingly,
I agree that the district court was not precluded from finding Knight
contributorily negligent.
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Jennifer Walker Elrod, Circuit Judge, dissenting:
Andrew Knight suffered a severe injury aboard the M/V Sea Hawk.
He argues that the district court erred, as a matter of law, by holding him
contributorily negligent even though he was following orders at the time of
his injury. Because our binding and longstanding precedent under the rule of
orderliness precludes a finding of contributory negligence, I dissent.
I.
Under our precedent in Williams v. Brasea, Inc., 497 F.2d 67 (5th Cir.
1974), we should hold that the district court erred by holding Knight
contributorily negligent. In Williams, we stated that “a seaman may not be
contributorily negligent for carrying out orders that result in his own injury,
even if he recognizes possible danger.” Id. at 73. In this case, it is undisputed
that Knight was following orders at the time of his injury. Therefore, the
district court erred by holding him contributorily negligent—plain and
simple.
The majority does not alter Williams’s binding effect. Although one
member of the panel would declare our longstanding rule in Williams dictum,
the majority of this panel holds that it is not. Williams remains the law of this
circuit.
Indeed, we reaffirmed the Williams rule in Ledet v. Smith Marine
Towing Corp., 455 F. App’x 417 (5th Cir. 2011). In Ledet, the vessel owner
argued that the seaman was contributorily negligent while attempting to
comply with the captain’s orders. Id. at 422. We concluded, however, that
“[b]ecause the district court found that Ledet was following orders, Smith
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Marine’s argument about Ledet’s own negligence is foreclosed by
Williams.” Id. 1
The majority concludes that Knight’s circumstances do not fall under
Williams—reasoning that Williams can be distinguished because it dealt with
a “specific” rather than “general” order and that Knight was given a general
order. However, this reasoning fails in two ways.
First, we have never before read Williams as a case that only deals with
“specific orders.” Nor did the Ninth Circuit when they adopted the
Williams rule. See Simeonoff v. Hiner, 249 F.3d 883, 890 (9th Cir. 2001)
(adopting Williams’s rule and rejecting the specific-order distinction on the
ground that it “fails to consider the effect of even a general order on a
seaman” and that compliance with all orders from supervisors “will promote
vessel safety and will aid efficacy of command at sea.”). 2
Second, while I reject the contention that Williams contained a
general-and-specific-order distinction, even if we applied such a distinction
in this case, Williams would still require holding that Knight was not
contributorily negligent. Knight was given a specific order—he was ordered
to perform a specific task at a specific time. That order was to change out the
1
The post-Williams cases Judge Barksdale relies on in Part II.A.1 of the opinion do
not mention or modify Williams. See Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 333–
39 (5th Cir. 1997) (en banc) (discussing negligence standard generally in a situation that did
not involve following orders); Boudreaux v. United States, 280 F.3d 461, 466–74 (5th Cir.
2002) (assuming that the seaman following orders could be held contributorily negligent
and analyzing whether the district court’s distribution of fault was correct, not whether any
fault should have been assigned to the seaman in the first place); Pallis v. United States, 369
F. App’x 538, 541–42 (5th Cir. 2010) (same).
2
Some other circuits have crafted a narrower rule. See Alholm v. Am. S.S. Co., 144
F.3d 1172, 1179 (8th Cir. 1998); Burden v. Evansville Materials, Inc., 840 F.2d 343, 346 (6th
Cir. 1988). We are bound by ours, which does not make a distinction between “general”
and “specific” orders.
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stern line at a time when four-foot seas and winds of at least twenty miles an
hour were causing the vessel to rock. He was then injured after stepping on
the chafed line, which he testified was due to the rocking of the vessel. Knight
followed his captain’s order—exhibiting a compliance which “promote[s]
vessel safety and . . . aid[s] efficacy of command at sea.” Simeonoff, 249 F.3d
at 890.
Simply put, following our longstanding precedent in Williams, I would
hold that the district court erred by finding Knight contributorily negligent
even though he sustained his injury while following orders. 3
II.
Knight also contends that the district court clearly erred by awarding
him only $60,000 in general damages, despite the multiple surgeries, lengthy
physical therapy, and permanent impairment, which caused him to no longer
be able to work on a vessel. I would reverse the district court judgment on
this ground as well.
General damages are available “for pain and suffering and impact on
one’s normal life routines.” Barto v. Shore Constr., L.L.C., 801 F.3d 465, 473
(5th Cir. 2015) (quoting Crador v. La. Dep’t of Highways, 625 F.2d 1227, 1230
(5th Cir. 1980)). As a result of his injury, Knight needed to undergo three
reconstructive surgeries (which included the insertion of screws) and to
attend approximately 100 physical therapy sessions. His doctor assigned him
14% foot-and-ankle impairment, 10% lower-extremity impairment, and 4%
whole-person impairment. Examining the undisputed extent of Knight’s
injuries and impairment, the district court found $60,000 a sufficient
3
Because of this conclusion, I would not reach the issue of whether the district
court erred in finding he acted negligently based on the facts in this case.
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amount. However, factually analogous cases in both the Louisiana federal
and state courts support a greater award.
In Wynne v. Trotter, 10-90 (La. App. 4 Cir. 6/30/10), 46 So.3d 678,
681, 685, for example, the plaintiff suffered a fracture in his right heel, causing
a 12% leg-and-foot impairment. The plaintiff developed a permanent limp
and lost his ability to run and stand for extended periods of time. Id. at 685.
There was no indication that the plaintiff underwent surgery to repair the
injury. Id. The court upheld an award of $185,000. 4 Id.In another case, Baham v. Nabors Drilling USA, LP, 721 F. Supp. 2d
499, 516 (W.D. La. 2010), aff’d, 449 F. App’x 334 (5th Cir. 2011), the
plaintiff fractured his ankle, precipitating surgery and the insertion of two
screws. The court awarded $250,000 in general damages. 5 Id. at 520.
In its order denying Knight’s motion to alter or amend the judgment,
the district court distinguished Wynne on the ground that the plaintiff there
suffered a fracture, whereas Knight merely “rolled his ankle.” The court’s
description does not seem to capture an injury that entailed multiple
surgeries and the insertion of screws. Whatever label is used, Knight’s injury
was severe enough to require him to undergo three surgeries and attend over
a hundred physical therapy classes.
Furthermore, the cases relied upon by the district court in denying
Knight’s motion are not analogous. In the first, Broussard v. Oak Trace
Apartments, 11-125 (La. App. 3 Cir. 7/13/11), 69 So.3d 1257, 1262–63, the
plaintiff sustained a broken ankle, had to have surgery, and testified that “she
4
The present-day value of the award, according to Knight, is roughly $217,000.
See Ledet, 455 F. App’x at 423 (calculating the present-day value of a prior award using the
Bureau of Labor Statistics’s CPI Inflation Calculator).
5
This is the equivalent of $298,000 today, using the CPI Inflation Calculator.
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is no longer able to do things she used to do.” However, she was also in a car
accident unrelated to the lawsuit that aggravated her ankle injury. Id. at 1259.
The court upheld a $50,000 award. 6 Id. at 1263. In the other case, LaBorde
v. St. James Place Apartments, 2005-0007 (La. App. 1 Cir. 2/15/06), 928
So.2d 643, 646, the plaintiff suffered a sprained ankle and underwent surgery.
She was diagnosed with a 5% post-surgery disability and attended weeks of
physical therapy. Id. The court upheld a general damages award of $20,000. 7
Id. at 648. Knight’s injuries are much more severe.
The majority opinion also relies on Seymour v. Cigna Ins. Co., 93-229
(La. App. 5 Cir. 1993), 622 So.2d 839, writ denied, 629 So.2d 1136 (La. 1993),
which the district court did not cite. In that case, the plaintiff fractured his
ankle, underwent two surgeries, required monthly treatment from his
orthopedic surgeon for four years, and required injections of anesthesia into
his sympathetic nervous system. Id. at 844. However, an orthopedic surgeon
who examined the plaintiff determined that he did not walk with a limp, and
the plaintiff testified that although he had to give up some sports activities
like roller skating, he still walked, drove, and took care of his young children.
Id. There, the court upheld an award of $35,000. 8 Id.On the spectrum between LaBorde/Broussard and Wynne/Baham,
Seymour is closer to Broussard/LaBorde. These cases involved fewer
surgeries and less impairment on the plaintiff’s ability to perform his or her
line of work.
While the “clear error” standard is high, it is not insurmountable. See
Graham v. Milky Way Barge, Inc., 824 F.2d 376, 389–90 (5th Cir. 1987)
6
This is the equivalent of $57,000 today, using the CPI Inflation Calculator.
7
This is the equivalent of $26,000 today, using the CPI Inflation Calculator.
8
This is the equivalent of $63,000 today, using the CPI Inflation Calculator.
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(holding that district court erred in awarding inadequate damages). I would
hold that the district court clearly erred in assessing a general damages award
of only $60,000.
* * *
In this case, I would conclude that the district court erred twice: once
by ignoring our binding and longstanding precedent in Williams that seamen
who are injured while following orders cannot be held contributorily
negligent and again by awarding insufficient damages. I respectfully dissent.
20