Trent Davis v. Ensco Offshore Company

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

06-197

TRENT DAVIS

VERSUS

ENSCO OFFSHORE COMPANY

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2004-3678
HONORABLE GLENNON P. EVERETT, DISTRICT COURT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of John D. Saunders, Elizabeth A. Pickett, and James T. Genovese,
Judges.

AFFIRMED.

Guy O. Mitchell
Mitchell Law Offices
225 Court Street
Ville Platte, Louisiana 70586-4492
(337) 363-0400
COUNSEL FOR PLAINTIFF/APPELLANT:
Trent Davis

Alan K. Breaud
Timothy W. Basden
Breaud & Meyers
Post Office Box 3448
Lafayette, Louisiana 70502
(337) 266-2200
COUNSEL FOR DEFENDANT/APPELLEE:
ENSCO Offshore Company

GENOVESE, Judge.

In this Jones Act and general maritime case brought in state court, Plaintiff,

Trent Davis (Davis), appeals the jury verdict in favor of the Defendant, ENSCO

Offshore Company (ENSCO), wherein the jury found that Plaintiff had not sustained

an accident.

At the conclusion of the trial, the trial court dismissed Davis’ unseaworthiness

claim by granting ENSCO’s motion for involuntary dismissal.1 Davis appeals the

jury’s finding that he did not sustain an accident, as he has alleged, while working

aboard ENSCO’s offshore drilling vessel. For the following reasons, we find no

manifest error and affirm the jury’s verdict.

FACTUAL AND PROCEDURAL HISTORY

Davis was employed by ENSCO as a roustabout aboard an offshore jack-up

drilling rig, ENSCO Rig 95 (Rig 95), operating in the Gulf of Mexico. Davis asserts

that on December 19, 2003, after completing a painting job atop a storage shed, he

fell 8 to 10 feet while descending a ladder, injuring his left knee and lower back. On

July 28, 2004, Davis filed suit against ENSCO under the Jones Act and general

maritime law contending that ENSCO violated certain safety policies.

A jury trial was held from June 20 through June 23, 2005. At the conclusion

of the trial, Davis’ unseaworthiness claim was dismissed by the trial court pursuant

to ENSCO’s motion for involuntary dismissal. The jury returned a verdict denying

Davis’ claims against ENSCO, finding that Davis did not prove by a preponderance

of the evidence that he had sustained an accident aboard Rig 95. The trial court

adopted the jury’s verdict as its judgment. On July 18, 2005, the trial court denied

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The trial court’s dismissal of Davis’ unseaworthiness claim has not been appealed and
will not be addressed.

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Davis’ motion for judgment notwithstanding the verdict and, in the alternative,

motion for new trial. Davis appealed.

ASSIGNMENTS OF ERROR

In his two assignments of error, Davis asserts that the jury erred in (1) failing

to accept as true the uncontradicted testimony of his witnesses; and (2) failing to find

that an accident occurred on Rig 95.

LAW AND DISCUSSION

In Coutee v. Global Marine Drilling Co., 05-756, pp. 5-6 (La. 2/22/06), 924

So.2d 112, 116, the supreme court stated:

Louisiana courts of appeal apply the manifest error standard of
review in general maritime and Jones Act cases. Milstead v. Diamond
M Offshore, Inc., 95-2446 (La. 7/2/96), 676 So.2d 89, 96. Under the
manifest error standard, a factual finding cannot be set aside unless the
appellate court finds that it is manifestly erroneous or clearly wrong.
Smith v. Louisiana Dept. of Corrections, 93-1305 (La. 2/28/94), 633
So.2d 129, 132; Stobart v. State through DOTD, 617 So.2d 880, 882
(La.1993); Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). In order to
reverse a fact finder’s determination of fact, an appellate court must
review the record in its entirety and (1) find that a reasonable factual
basis does not exist for the finding, and (2) further determine that the
record establishes that the fact finder is clearly wrong or manifestly
erroneous. Stobart, supra; Rosell, supra. The appellate court must not
re-weigh the evidence or substitute its own factual findings because it
would have decided the case differently. Id.; Pinsonneault v. Merchants
& Farmers Bank & Trust Co., 01-2217 (La. 4/3/02), 816 So.2d 270,
278-79. Where there are two permissible views of the evidence, the fact
finder’s choice between them cannot be manifestly erroneous or clearly
wrong. Id.

After a thorough review of the record, though there are two permissible views

of the evidence, we cannot say that the jury was manifestly erroneous or clearly

wrong in finding that Davis did not sustain an accident on Rig 95. Davis contends

that the jury erred by failing to accept his testimony as true, considering the fact that

ENSCO did not present contradictory evidence. We disagree. We find that the

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record is replete with not only Davis’ inconsistencies, but also ample contradictory

testimony presented by ENSCO to support the jury’s verdict.

In his testimony, Davis stated that he began his work shift on December 19,

2003, with a safety meeting around 6:00 p.m. Davis testified that, at the time of the

accident, Rig 95 was anchored “in place” and not being towed. He testified that the

accident occurred approximately 2 hours after he started his shift and that “it was still

kind of daylight and it was starting to get dark.” Davis stated that when the accident

occurred, he and co-worker Regis Powers (Powers) were painting the deck, and

Powers had placed a ladder against a metal shed in order to paint its roof. The metal

shed covered stairs leading down to the tank room. Davis testified that Powers

started painting the roof of the metal shed, but did not finish. According to Davis, he

climbed the ladder to the roof of the metal shed; he was assisted by Powers at least

once to put more paint onto his roller; and, he was finished painting the shed’s roof.

Davis described the accident stating “I put my foot on the second rung and that’s

when the ladder slipped from underneath me and I fell.” Davis described the way he

fell as:

I was kind of falling backwards but I caught myself and, uh, I landed on
-- like on my feet but it was on the front, like the boots, kind of, the
shoes, like almost on my tippy-toes, so-call it. But I fell like in a
squatted position and my left knee had hit the deck and then my hand.
And then some kind of way I twist myself and I fell backwards.

Davis testified that he did have the paint roller in his hand when he fell. According

to Davis, his accident occurred on December 19, 2003 and ENSCO officials waited

2 days before transporting him onshore to have him evaluated by a doctor.

ENSCO introduced a “Certification of No Injury” into evidence dated

December 19, 2003. Davis’ signature appears on said document certifying that he did

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not have “any injury of any kind during this tour of duty.” ENSCO submitted an

“Employee Injury or Illness Report” dated December 21, 2003, containing Davis’

signature and description of how the accident occurred. Davis reported:

While standing on the port side cover with nothing to tie off to working,
painting the top. I was coming down the latter [sic] as soon as I put my
foot on the latter [sic] 2 rung. The latter [sic] slide from the bottom and
I feel [sic] forward hitting my left nee [sic].

On said report, the date of the injury is listed as 12:20 a.m., Sunday, December 21,

2003. ENSCO also submitted the Acadian Ambulance medical report, prepared by

its medic aboard Rig 95, corroborating that Davis reportedly fell around 12:20 a.m.

on December 21, 2003, and was transported off the rig around 9:30 a.m. A receipt

from the Comfort Inn in Lafayette, Louisiana indicates that Davis was checked-in to

the hotel on December 21, 2003, and checked-out on December 22, 2003.

Dr. Gregory Gidman, an orthopedist, testified that he examined Davis at 9:55

a.m. on December 22, 2003. According to Dr. Gidman, Davis complained about his

neck, left knee, and left hand. Dr. Gidman observed no scratches or abrasions to any

of these areas, and an x-ray of Davis’ hand showed no injury. At no time did Davis

mention pain in his back to Dr. Gidman.

Powers was also a roustabout for ENSCO at the time of the accident. On the

date of the trial, Powers was employed by ENSCO as a roughneck. Powers testified

that on the night of Davis’ alleged accident, Rig 95 was “on a tow and a tow line had

broke and we was going to replace it.” Powers testified that a little after midnight he

heard the sound of a ladder hitting the ground and then Davis hollering. Immediately

before that he had been helping co-worker Kevin Callery (Callery) with a paint gun

for a couple of minutes only 50 feet from Davis. Prior to that, Powers was at the front

of the rig for about 30 minutes helping to change its tow line. Contrary to Davis’

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testimony, Powers denied having propped the ladder against the metal shed and

having climbed the ladder to paint. Powers testified that Davis was complaining that

he injured his right knee and that he did not see any paint splattered around the scene

of the accident. Powers testified that he observed Davis talking on the telephone a

lot during his off hours and that Davis mentioned to him that “he wasn’t going to be

out there much longer,” but Davis did not elaborate if he was being transferred or if

he was planning to quit.

Callery was also employed by ENSCO as a roustabout on the date of the

alleged accident; however, on the date of the trial, Callery no longer worked for

ENSCO. In his testimony, Callery recalled that when Davis’ accident occurred “it

was midnight, it was dark.” Callery testified that Davis reported to him immediately

after he fell, that he only fell about 2 or 3 feet, that he slipped off of the ladder rather

than the ladder slipping out from underneath him, and that he injured his right knee.

Callery testified that he did not see any paint splattered around the accident scene.

T. K. Thornton, Jr. (Thornton) was an offshore paramedic for Acadian

Ambulance aboard Rig 95 on the date of the alleged accident. Thornton testified via

deposition that he arrived to examine Davis and administer medical care to him

immediately after the alleged accident. According to Thornton, he found Davis lying

face down on the deck, and Davis immediately complained that he hurt his right knee.

Thornton testified that when he examined Davis he “did not find any deformities,

contusions, abrasions, punctures, tenderness, lacerations, or swelling.” Thornton saw

no apparent injury to either Davis’ right or left knee. According to Thornton, Davis

told him that he had fallen 8 to 10 feet straight down, face down, and that his knees

bore the brunt of his fall onto the metal deck. After escorting Davis to the crew bunk

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room, Davis told Thornton that his pain was in his left knee. Thornton testified that

he observed no signs of injury to Davis’ left knee.

James Higdon, ENSCO’s toolpusher on the date of the alleged accident,

investigated the accident scene and assisted with Davis’ completion of the “Employee

Injury or Illness Report.” According to said report, Davis asserted that he started to

descend the ladder with the roller brush in his hand, and when he stepped onto the

second ladder rung from the top, the ladder skidded out from underneath him causing

him to fall 8 to 10 feet onto the metal deck of the rig.

Brad Bruce, ENSCO’s deck foreman on the date of the alleged accident,

testified that, immediately after the alleged accident, he observed that Davis’ hard hat

was laying beside him, that there was no paint splatter near the accident scene, and

that there were no marks or evidence on the wall or near the wall to indicate that the

ladder slid and fell as described.

Contrary to Davis’ assertions, we find that there are clear contradictions in the

record to support the jury’s finding that Davis was not credible. Davis’ recollection

of when the accident occurred was not supported by the testimony or the documents

in evidence. Davis initially stated that his right knee was injured. Shortly thereafter,

Davis changed his claim and stated that he injured his left knee. Davis’ description(s)

of how he fell are not consistent. On the date of the accident, he reported that he fell

forward onto his knees. On the date of trial, he testified that he landed in a squatted

position and landed on his “tippy-toes” injuring his left knee, and then twisted in a

manner that caused him to fall backwards and also injure his back.

The evidence in the record supports the jury’s verdict that there was no

accident. Considering the insufficiency of proof, and the inconsistent and

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contradictory testimony presented by Davis, we find that a reasonable factual basis

exists for the jury’s finding that the was no accident. We further recognize that the

trier of fact is in the best position to assess the demeanor and judge the credibility of

witnesses when there is conflicting testimony. Robin v. Allstate Ins. Co., 03-1009,

03-926 (La.App. 3 Cir. 3/24/04), 870 So.2d 402, writ denied, 04-1383 (La. 9/24/04),

882 So.2d 1143 (citing Rosell v. ESCO, 549 So.2d 840 (La.1989)). Therefore, we do

not find that the jury was manifestly erroneous or clearly wrong in its finding that

Davis failed to meet his requisite burden of proof that an accident had occurred

aboard ENSCO’s offshore drilling vessel. Accordingly, we affirm the jury’s verdict.

DECREE

For the foregoing reasons, the judgment is affirmed. All costs of this appeal

are assessed to Plaintiff/Appellant, Trent Davis.

AFFIRMED.

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