Seaman Held 50% At Fault in Boarding Barge. Each Defendant Assessed 25%
By: Zachary Boudreaux
Badeaux v. Eymard Bros. Towing Co., Inc., No. CV 19-13427, 2021 WL 5564459, *1 (E.D. La. Nov. 29, 2021).
On January 3, 2019, Clifton Badeaux was injured in the process of stepping from a spar barge, owned by ARTCO, onto Eymard’s vessel, the M/V PEARL C. EYMARD.[1] Badeaux was employed by Eymard as a captain of the M/V PEARL.[2] The area where the accident took place was not painted, nor coated with a non-skid medium, whereas other surfaces near the edges of the barge were covered in yellow paint mixed with a non-skid medium.[3] Due to light rain, the area was smooth, slick, and wet.[4] While wearing a pair of heavily worn boots and carrying a leather bag over his shoulder and a paper bag in his hand, Badeaux attempted to board the M/V PEARL on the starboard side.[5] He grabbed a flagpole attached to the M/V PEARL with his left hand, lifted his left foot off the surface of the barge, and slipped forward with his right foot.[6] Badeaux pushed himself away from the M/V PEARL to avoid falling between the vessel and the barge.[7]
Following the accident, he was brought to Ochsner Medical Center in Kenner, Louisiana where it was determined that his pain localized at the top of his lumbar spine.[8] As a result of his injuries, Badeaux received a kyphoplasty, a fusion and vertebral-body augmentation, and hardware removal.[9] The court found that all injuries and necessitated treatments were caused from the accident.[10]
In determining the fault of Badeaux’s employer, Eymard, the Judge Sarah Vance assessed the claims for unseaworthiness and Jones Act negligence. The court analyzed the means of ingress to M/V PEARL, which consisted of crewmembers grabbing the flagpole attached to the vessel with one hand.[11] This left the other hand without support.[12] Additionally, the court defined the spar barge as a slipping hazard and that the smooth, slick, and wet circumstances lasted for some time and were not instantaneous.[13] For those reasons, Eymard was found negligent for failing to provide Badeaux a reasonably safe means of boarding and departing from M/V PEARL.[14] With similar rationale, the trial judge determined that Eymard breached the fundamental duty of the Jones Act to provide all employees with a reasonably safe place to work and was negligent, which caused Badeaux’s injuries.[15] Thus, Badeaux prevailed on both claims for unseaworthiness and Jones Act negligence.
Next, the court assessed the fault of ADM/ARTCO and Badeaux. Because the spar barge is not a vessel, it is not governed by general maritime law. Rather, Louisiana substantive law applied.[16] Therefore, Judge Vance addressed Louisiana Civil Code Article 2315 for general negligence and Articles 2317 and 2317.1 for custodial liability.
Liability under Art. 2315 requires five elements: (1) a duty to conform to specific standard; (2) failure to conform to appropriate standard; (3) substandard conduct was cause in fact of injuries; (4) substandard conduct was legal cause of injuries; and (5) actual damages.[17] The court found that ARTCO failed to conform to an appropriate standard and breached its duty for providing a reasonably safe spar barge.[18] The spar barge was not coated in any yellow paint nor was it coated with a non-skid medium.[19] Moreover, ARTCO did not implement a maintenance schedule to check for safety hazards, nor did ARTCO have a sufficient coating or re-coating process of portions of the spar barge that are dangerous and should be highlighted to prevent accidents and promote a safe walking surface for crewmembers to use.[20] Thus, ARTCO was liable for general negligence under Article 2315.
Louisiana Civil Code Articles 2317 and 2317.1 govern custodial liability. The articles state a responsibility for damage occasioned by one’s own act and also an act of persons whom we are answerable or things we have in our custody.[21] The owner or custodian of a thing is answerable for the damage caused by a defect that is known or, with exercise of reasonable care, should have been known.[22] To recover under these articles, the plaintiff must show four elements: (1) the thing that caused the damage was in the defendant’s custody; (2) the thing was in a condition that created unreasonable harm; (3) the defective condition caused the damage; and (4) the defendant should have known of the defect.[23] The Court determined that ARTCO was liable for Badeaux’s injuries under custodial liability because Badeaux presented evidence that met all four elements. As the parent company of ARTCO, ADM was not liable because there was no evidence presented of a breach of any duty owed to Badeaux or that ADM knew or should have known of the defective spar barge that had a high risk for injury.[24]
Under the Jones Act, a plaintiff’s contributory negligence reduces recovery in proportion to the seaman's own negligence.[25] Here, Badeaux’s own negligence contributed to the incident for three reasons. First, Badeaux’s soles of his boots were heavily worn and not in the proper condition to use for work.[26] Second, as a captain, Badeaux had responsibilities for using good judgment and reporting any unsafe conditions such as the spar barge lacking a non-skid medium.[27] Third, all employees are trained to keep three points of contact with structures when boarding and deboarding vessels to avoid any slip and falls.[28] These three factors led the trial judge to hold Badeaux fifty percent negligent.[29]
The court assigned liability of all parties as follows: Badeaux (Plaintiff) - fifty percent; Eymard (Defendant, Vessel Owner) - twenty-five percent; and ARTCO (Defendant, Spar Barge Custodian) - twenty-five percent.[30] These apportionments of fault affected Badeaux’s maintenance and cure and recovery of total damages.
After review of the Eymard’s maintenance and cure payments, the court had to determine which payments occurred following maximum medical improvement (MMI). It was decided that Badeaux reached MMI in mid-June of 2021, following the hardware removal surgery that was deemed medically necessary.[31] Based on this date, Eymard overpaid and was due $4,112.69; furthermore, Badeaux was not entitled to any additional past or future medical expenses.[32]
For past lost wages, the Court found that Eymard paid $84,475.00 to Badeaux in 2019.[33] By subtracting that amount from the pre-injury earning capacity and the post MMI potential earnings, Judge Vance awarded $174,235.57 for past lost wages.[34] Badeaux’s future wage loss calculated at $783,489.17 based on his estimated work-life expectancy and factoring in his return to a sedentary role and the average of the median wage ranges that Badeaux could earn.[35]
Lastly, $500,000.00 in general damages for past and future pain and suffering and loss of enjoyment of life were awarded.[36] Prior to apportionment of fault, Badeaux was entitled to $1,457,724.74,[37] which was reduced by fifty percent fault for a total of $728,862.37.[38] Each defendant, Eymard and ARTCO, were responsible to pay fifty percent of Badeaux’s total award.[39]
[1] Badeaux v. Eymard Bros. Towing Co., Inc., No. CV 19-13427, 2021 WL 5564459, *1 (E.D. La. Nov. 29, 2021).
[2] Id.
[3] Id.
[4] Id.
[5] Id. at *2.
[6] Badeaux, 2021 WL 5564459, at *2.
[7] Id.
[8] Id. at *4.
[9] Id. at *6.
[10] Id.
[11] Badeaux, 2021 WL 5564459, at *7.
[12] Id.
[13] Id. at *8.
[14] Id.
[15] Id. at *9.
[16] Badeaux, 2021 WL 5564459, at *10.
[17] Id.
[18] Id.
[19] Id.
[20] Id.
[21] Badeaux, 2021 WL 5564459, at *11.
[22] Id.
[23] Id.
[24] Id. at *14.
[25] Id.
[26] Badeaux, 2021 WL 5564459, at *14.
[27] Id.
[28] Id. at *15.
[29] Id.
[30] Id.
[31] Badeaux, 2021 WL 5564459, at *16.
[32] Id. at *17.
[33] Id. at *18.
[34] Id. at *19.
[35] Id.
[36] Badeaux, 2021 WL 5564459, at *22.
[37] Id. at *23.
[38] Id. at *24.
[39] Id.
