WISDOM, Circuit Judge:
This is the latest in a long series of cases involving the application of Scindia and 33 U.S.C. § 905 to a longshoreman's negligence suit against a vessel. We affirm the district court's finding of liability in favor of the longshoreman and against the vessel operator, but reverse the judgment with respect to the amount of damages.
I. FACTS AND PROCEDURAL HISTORY
Alvin J. Treadaway, a longshoreman working aboard the M/V SOPHIE B, was injured when he slipped off of a step that was partially obstructed by a pipe.
The SOPHIE B's voyage began in Antwerp, Belgium. While crossing the Atlantic Ocean, the vessel encountered several days of rough seas, which caused some damage to the ship. In particular, the waves damaged a metal grill that served as a walkway to the tally room. Before arriving at its first destination, Mobile, Alabama, the vessel's chief mate threw the damaged grill overboard, exposing a number of pipes and the two-inch metal frame that supported the grill.
From Mobile, the SOPHIE B departed for Ama, Louisiana, arriving there on January 17, 1986. Before commencing loading operations at 11:50 on the night of January 21, the chief mate and the stevedore each inspected the ship, and found no oil or water in the area leading to the tally room. Before Treadaway's gang came aboard at 8:00 a.m. on January 22, the vessel's chief mate and the gang's foreman performed further inspections. Again, there was no report of oil or water near the tally room. The foreman recalled the absence of grating, but did not consider it to be a dangerous situation.
The tally room is located in the starboard, aft section of the main deck of the SOPHIE B. The main deck is one level below the gangway. To enter the tally room, Treadaway and the other longshoremen descended a ladder to the main deck, proceeded through the passage where the grill was missing, and then came upon the "junction box", a metal platform. Across from the junction box was the bulkhead and the water-tight door to the tally room. To facilitate passage over the coaming,
Treadaway introduced testimony that on the day of the accident the area around the tally room was covered with oil and water. One of his co-workers testified that the longshoremen had to "wade ... through" four or five inches of water in that area. The plaintiff testified that he saw oil coming through the pipes that usually were covered by grating. Both stated that these conditions existed from the moment they boarded the vessel, although neither of them reported this to the crew. The plaintiff also presented the testimony of a marine architect who told the jury that he had never seen a pipe placed over a step and that he considered the situation to be unsafe. Considering the step and the absence of grating, he described the area as "an accident waiting to happen".
Treadaway began work shortly after 8:00 a.m. During the morning he had approached and entered the tally room on two occasions. On his third trip, around 11:30 a.m., Treadaway approached the single step leading to the room holding in his right hand a bag of boxed lunches for his gang. From his position on the junction box, he put his right foot on the step and attempted to pull himself through the doorway with his left hand, a hand that was weakened because of a prior condition. His foot hit the pipe on the back of the step and he fell backward. The fall fractured his coccyx and resulted in a mild concussion. Treadaway continued to work after the fall, operating the "button box", the control panel that directs the spout during loading, but he was unable to finish the work-day.
The jury returned a verdict finding Louis-Dreyfus seventy-five percent at fault and Treadaway twenty-five percent at fault. It assessed a total of $298,000 in damages for the plaintiff. The defendant filed motions for judgment notwithstanding the verdict or, alternatively, for a new trial. The district court denied both motions. The defendant then filed this appeal, principally arguing three issues: 1) that the district court erred in denying its post-trial motions because there was no evidence of negligence, 2) that the district court committed prejudicial error by not instructing the jury on the distinction between negligence and unseaworthiness, and 3) that the jury awarded an excessive amount of damages.
A. Motions for Judgment Notwithstanding the Verdict and New Trial
Louis-Dreyfus argued in its post-trial motions that Treadaway presented no evidence from which the jury could have found that the defendant's negligence caused his fall. It argued that the obstruction of the step by the pipe, if it was a defect, was a design defect and was the sole cause of the accident. Because Louis-Dreyfus did not design or modify the step, the jury necessarily had to base its finding of liability on unseaworthiness. Further, Louis-Dreyfus argued that the obstruction was obvious, and that plaintiff was a "careless and inattentive stevedore" who should not recover. The trial court denied both motions.
1. Standard of Review
Our standard of review with respect to motions for directed verdict and for judgment notwithstanding the verdict is based on the principle that "it is the function of the jury as the traditional finder of fact, and not the Court, to weigh conflicting evidence ...".
The decision to grant or deny a motion for new trial is a matter for the trial court's discretion, and this Court will reverse its ruling only for an abuse of that discretion.
2. Evidence of Negligence
Since the 1972 amendments to the Longshoremen's and Harbor Workers' Compensation Act (LHWCA),
Scindia explained that before commencement of loading or unloading operations, a shipowner owes two duties to longshoremen: 1) to exercise "ordinary care under the circumstances to have the ship and its equipment in such condition that an expert and experienced stevedore will be able by the exercise of reasonable care to carry on its cargo operations with reasonable safety", and 2) to warn the stevedore of any hidden dangers of which the ship is, or should be, aware.
This case involves the vessel's duties to exercise ordinary care and to warn of defects before operations commence. In support of the judgment below, Treadaway argues that Louis-Dreyfus was negligent in three respects: Louis-Dreyfus 1) failed to detect and eliminate water and oil in the area leading to the tally room, 2) did not replace the missing grill that served as the walkway near the tally room,
Treadaway and a fellow longshoreman testified that at the time of the accident, water and oil covered the area on the main deck in the vicinity of the tally room, and that the longshoremen had to walk through the oil to enter the room set aside for them. Under Scindia, however, merely proving that an unsafe condition existed at the time of the accident is insufficient to establish liability.
Although there was no evidence that the vessel put the foreign substance on the main deck, there was sufficient evidence for the jury to conclude that the shipowner knew or should have known of its presence in the exercise of ordinary care. Two witnesses (including the plaintiff) testified that from the time they boarded the vessel shortly after 8:00 a.m., water and oil covered areas of the main deck, and that this condition persisted through the time of the plaintiff's fall at 11:30 a.m. Although the vessel's chief mate and the plaintiff's foreman testified that their separate inspections of the vessel before operations began revealed no foreign substance on the main deck, the jury was entitled to believe the plaintiffs' witnesses instead.
3. Open and Obvious Condition
The plaintiff safely traversed the main deck on his way to the tally room on at least two previous occasions on the morning of the accident, and he testified
Some of our decisions look to a longshoreman's alternatives when he is faced with an obviously unsafe condition. In Morris v. Compagnie Maritime des Chargeurs Reunis,
Considering the evidence and inferences in favor of the plaintiff, we cannot say that no reasonable jury could have returned a verdict in favor of the plaintiff. For the same reasons, we uphold the trial judge's refusal to grant a new trial to the defendant as a proper exercise of his discretion.
B. Jury Instructions
Louis-Dreyfus timely objected to the district court's failure to give its proposed jury instruction that distinguished the theories of unseaworthiness and negligence. On appeal, Louis-Dreyfus argues that the absence of its requested instruction misled the jury into thinking that it could find liability based on a design defect. The defendant did not object to the substance of the court's instruction on negligence.
1. Standard of Review
We review a trial judge's instructions to the jury with deference, for "[i]t is the inescapable duty of the trial judge to instruct the jurors, fully and correctly, on the applicable law of the case, and to guide, direct, and assist them toward an intelligent understanding of the legal and factual issues involved ...".
2. Accuracy of the Proposed and Actual Instructions
The final sentence of Louis-Dreyfus's proposed charge contains its essence: "[I]f defendant did not design, construct or otherwise locate the pipe on the step into the deck office of the M/V SOPHIE B, defendant cannot be liable for the location or position of that pipe". The charge seems to exclude liability for failure to warn of a hidden hazard not created by the shipowner. The question whether there is a duty to warn of a design defect that is in its original condition is one that we have not decided.
The jury concluded that Treadaway sustained $298,000 in damages as a result of his accident.
1. Standard of Review
"This court will not overturn a damage award unless the trier of fact abused its discretion."
2. Past Lost Wages
Louis-Dreyfus objects to the award for past lost wages on two grounds: 1) that it is clearly excessive in the light of the evidence, and 2) that it includes an amount for fringe benefits that the plaintiff did not sufficiently prove.
Excluding prejudgment interest, Dr. Seymour Goodman, the plaintiff's economist, testified that the plaintiff lost $73,837.22 in past wages and benefits as a result of his
This circuit follows a "maximum recovery rule" in reviewing awards.
Louis-Dreyfus also contends that the plaintiff did not adequately prove the value of lost fringe benefits. It argues that the plaintiff's economist calculated these benefits on the basis of the employer's contributions and not on the actual amount that Treadaway would have received. Louis-Dreyfus bases this argument on dictum in Williams v. Reading & Bates Drilling Co.
Williams held that "the district court's determination that fringe benefits constituted additional compensation over and above the plaintiff's wages was not clearly erroneous". The question revolved around the plaintiff's thoroughness and professionalism in presenting evidence of his losses. In this case, Treadaway presented the expert testimony of an economist on the subject of his pecuniary losses. The plaintiff did not simply present a "benefits statement" to the jury. Rather, his economist based his calculations on the employer's specific hourly contribution to the union's welfare and pension funds as mandated by a collective bargaining agreement. He then performed a present value adjustment. We think that the plaintiff has satisfied his burden of proof on this issue.
3. Loss of Earning Capacity
Louis-Dreyfus next argues that the jury's award for loss of earning capacity and future benefits is clearly excessive. We agree. "An award for impaired earning capacity is intended to compensate the worker for the diminution in [his] stream of income."
First, this award exceeded the projections of even the plaintiff's own economist for lost future earnings assuming that the plaintiff will never return to any employment. The jury awarded $170,000; the plaintiff's expert predicted $165,877.02. Second, and more importantly, although it appears from the record that Treadaway may no longer be physically able to do longshoring work, the jury apparently did not consider the undisputed evidence that he will be able to return to full-time sedentary employment. The testimony of Treadaway's treating physician and his vocational counselor indicates that there are minimum wage jobs for which Treadaway is qualified and physically able.
We affirm the judgment below in all respects except the amount of damages. With respect to the monetary award of $298,000, we give the plaintiff the option of accepting a remittitur of $36,207.17,
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
Nor do we ground our decision on Louis-Dreyfus's breach of the duty to warn the longshoremen of an alleged hidden hazard — the pipe that passed horizontally over the back of the step. The evidence shows that Louis-Dreyfus did not design or modify the pipe (see note 20). Thus, if it was a hazard, it was so by virtue of a design defect. The step was not in disrepair, and there were no reports of previous accidents due to the step. We save for another day the question whether a vessel may be held liable for failure to warn of a design defect that is in its original condition, or whether that would amount to letting unseaworthiness in through the back door.
We also note that the jury assessed Treadaway twenty-five percent comparative negligence.
Past lost wages & benefits $ 75,000 Loss of earning capacity & future benefits $ 170,000 Past medical expenses $ 10,000 Future medical expenses $ 8,000 Past physical & mental pain & suffering $ 25,000 Future physical & mental pain and suffering $ 10,000 Permanent physical disability $ 0 _________ Total $ 298,000