Appendix — Foret v. United Gas Pipeline Co.

“Olvice fupreme Cort, WS,

FILED

SEP 11 1981

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: ‘ 4 1G '

mene

NO.__81-68

IN TH

Supreme Court of the United States

October Term, 1980

CINDY FORET

Appellant

Vv.

UNITED GAS PIPELINE COMPANY, INC.

Respondent

On Appeal from the United States Court of Appeal,

Fifth Circuit, New Orleans, Louisiana

SUPPLEMENTAL APPENDIX TO

JURISDICTIONAL STATEMENT

HUNTINGTON E,. DOWNER

WAITZ, DOWNER & BEST

423 Goode Street

Houma, Louisiana

Attorney for Appellant

MICHAEL . SAMANIE

LAWO ES OF MICHAEL J. SAMANIE

525 East Park Avenue

Houma, Louisiana

Attorney for Appellant

HERBERT W. BARNES

LAW OFFICES OF MICHAEL J. SAMANIE

525 East Park Avenue

Houma, Louisiana

Attorney for Appellant

SUPPLEMENTAL TABLE OF CONTENTS

APPENDICES

JUDGMENT OF THE UNITED STATES

DISTRICT COURT, EASTERN

DISTRICT OF LOUISIANA ...........60+0055

REASONS FOR JUDGMENT

OF THE UNITED STATES

DISTRICT COURT, EASTERN

DISTRICT OF LOUISIANA ............-50065

CERTIFICATE OF SERVICE ..........-0+ese005

23

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CINDY FORET, ETC., ET AL CIVIL ACTION

VS NO. 78-4152

UNITED GAS PIPELINE CO. SECTION “A”

JUDGMENT

Considering the written reasons on file herein,

and counsel informing the Court that plaintiff, Foret

does not waive any rights or claims against any party or

parties, and pursuant to Rule 9 (b), accordingly;

IT IS ORDERED, ADJUDGED AND DECREED

that there be judgment in favor of plaintiff, Cindy

Foret and against Paul C. Crochet, for the sum of

$145,557.02.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that the complaint of plaintiff, Cindy

Foret, individually and as administratrix of the estate

of Daniel Foret, against the defendant, United Gas

Pipeline Co. be dismissed in its entirety.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that the third party complaint of United

Gas Pipeline Co. against Paul C. Crochet is hereby

dismissed.

New Orleans, Louisiana, this 22nd day of Februar-

y, 1980.

/s/ NELSON B. JONES

Nelson B. Jones, Clerk

APPROVED AS TO FORM:

UNITED STATES DISTRICT JUDGE

(Filed February 22, 1980)

24

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

PAUL C, CROCHET CIVIL ACTION

Vs No. 78-4151

UNITED GAS PIPELINE CO. SECTION “A”

CINDY FORET, ET AL CIVIL ACTION

Vs No. 78-4152

UNITED GAS PIPELINE CO. SECTION “A”

(CONSOLIDATED MATTERS)

(Filed February 6, 1980)

SCHWARTZ, J.

This matter was tried to the Court, without a jury

on a former day, at which time the matter was taken

under submission. Now, after due consideration of the

evidence adduced at the trial, the arguments and

memoranda of counsel, the record and the law, the

Court finds as follows:

To the extent that any of the following findings of

fact constitute conclusions of law they are adopted as

such, and to the extent that any of the conclusions of

law constitute findings of fact, they are so adopted.

FINDING OF FACT

THE SCENE

The causes of action arise from a collision of a

sixteen foot pleasure craft and a piling located near the

bank on the eastern side of the intersection of Bayou

Chauvin and defendant United Gas Pipeline Compa-

ny’s canal in South Terrebonne Parish, Louisiana.

25

On November 29, 1950 defendant was granted a

right of way from the landowner for the construction

of a gas pipeline across Bayou Chauvin. In exercising

this right it ran a pipeline known as “Napoleonville 20

inch Line.” Defendant built a canal which runs directly

above the pipeline for the purpose of maintaining the

pipeline. Although the history of the piling involved in

the collision is sketchy, it appears to be the remaining

part of a “lilly gate.” Water lillies grow rapidly in this

area and two lilly gates were used to help keep the canal

free of lillies which could hamper navigation thereon.

Construction of these lilly gates was accomplished by

placing a piling at each corner of the intersection of the

pipeline canal and Bayou Chauvin. Attached to each

piling was a boom which stretched across the canal.

The booms were locked shut but company employees

were provided with a key, which they used to open the

booms, making the canal accessible to them on their

periodic maintenance checks.

Approximately fifteen years ago, modern meth-

ods of lilly control replaced the use of gates or dams.

the pipeline canal was built in 1952 and was originally

forty feet wide. However, substantial soil erosion has

occurred since that date so that the piling is now

approximately 12 to 15 feet from the bank. No records

of the building of the lilly gates are extant and there is

no evidence as to who built them.

Several of defendant’s employees testified re-

garding the company’s policy for maintenance of the

pipeline. The employees were instructed to remove

obstructions, that is, anything which would interfere

with the maintenance of the pipeline or was a hazard to

navigation on the canal. Defendant’s employees testi-

fied that they could not remove anything placed on the

property by the landowner without first seeking its

26

rmission. They never sought permission to remove

the pilings nor did they believe same was an obstruc-

tion or a hazard to the use of their servitude. The

pilings were not marked and appeared to have ex-

tended normally from 12 to 18 inches above the water

line. United Gas Pipeline Co. was aware that the

pipeline canal was used from time to time as a navi-

gable waterway by the public for the purpose of

hunting and fishing.

THE ACCIDENT

On the morning of November 29, 1977, Daniel

Foret, his father-in-law, Paul Corchet, and a friend,

Donald Lambert, went duck hunting in the area

surrounding Bayou Chauvin. They traveled ina 16 foot

fiberglass boat owned by Lambert and operated at all

times relevant hereto by Crochet. The boat was equip-

ped with a 60 h.p. motor and carried three life

preservers and flotation cushions. Plaintiff Crochet

alleges that approximately 1:00 P.M. the boat was

proceeding west on defendant’s pipeline canal towards

Bayou Chauvin at an estimated speed of 15 to 25 miles

per hour when it struck a piling later identified as being

on the eastern side of Bayou Chauvin at the intersec-

tion with the pipeline canal. Crochet also claims that

just prior to the collision he was sitting at the controls

in the rear of the boat; Lambert was seated in the bow;

and Foret was standing to his left looking for a place to

hunt. All passengers in the boat were wearing hip boots

and none were wearing life preservers. The weather

was overcast and misty.

Crochet testified that he was looking ahead with

an unobstructed view but that he did not see a piling,

and that Foret, who looked ahead, back and ahead

again, suddenly shouted, “Watch out for that piling,”

whereupon he instantly slowed the boat and swerved

27

to the left to avoid a group of water lillies which he

claimed obscured the piling.’ As a result of the inpact

with the piling according to Crochet, all three men

were thrown into the water and immediately surfaced.

Foret called to him and attempted to help Lambert.

Thereafter, Foret and Lambert ee below the

surface and drowned.

Crochet claimed he was in the water for about ten

minutes, then removed his boots and swam to shore.

Thereafter he swam across Bayou Chauvin to reach the

boat which was grounded on the opposite shore.

Mr. Stuart Scheers, who operates a commercial

hunting lease over some 4000 acres near the site of the

accident, testified that he and his helper were patrol-

ling his lease for poachers and heard shots coming from

the north side of his lease. They followed the sound of

the shots and came upon Crochet in an agitated state

running the boat more or less aimlessly up and down

the pipeline canal. Scheers, after several minutes of

conversation with Crochet, learned that two men had

drowned. He left his aide at the scene and he and

Crochet went to report the accident to the authorities.

Thereafter, Scheers and Crochet returned with rescue

and investigative officers from local sheriff's office.

Deputy Jodi Robichaux and Scheers pulled Foret’s

body from the water. Scheers stated that the water was

no more than five feet deep at the place where the

bodies were found. Crochet testified that the men were

in the water over their heads when they drowned.

Foret’s face was damaged and Scheers described the

damage as appearing to have been caused by « gunshot

' Plaintiff gave a statement (Deft. Bx. 20) to the investigative officers wherein he described the accident. In

this statement he does not mention that the water lilles obsc ured his vision of the piling of that they in any

other way contributed to the accident.

28

wound. Pieces of Foret’s lips, chin and eyebrows were

missing. Robichaux was not asked any questions re-

garding the condition of Foret’s face nor did he testify

regarding such. Lambert’s body was retrieved from a

spot a few feet away and was not marred in any way.’

Scheers further testified that he saw a shotgun,

expended shells and dead ducks in the boat. Crochet

testified the ducks had been killed earlier in the day

when they were hunting from a duck blind. However,

no explanation for the expended shells was offered.

THE PILING

Crochet claims that he was unable to see the

‘piling and that it was obscured by water lillies. Defend-

ant’s employees who were familiar with the intersec-

tion testified that the piling generally protrudes from

the water 8 to 12 inches at high tide and 12 to 18 inches

at low tide; that they never perceived it as a hazard to

navigation; and that barges were easily able to navigate

the canal between the pilings. The investigating offi-

cers reported the piling when they arrived on the scene

to be approximately 18 inches above the water. Scheers

testified that 14 to 16 inches of the piling were exposed

and he further testified that although there were some

lilles along the shore at that time of the year, none were

in the area of traffic. Scheers testified that he passed

that intersection almost daily for the last several years

and does not recall seeing the pilings under water

except in extreme weather conditions such as when a

hurricane threatens. Photographs (Exhibits 23, 24 and

25) introduced into evidence by plaintiffs show that

the piling was approximately 12 inches above the

2 The autopsy report identifies the damage to Foret’s face as resulting from crab bites. Dr. Sidney Warren who

performed the autopsies on both bodies testified that he based this explanation of Foret's facial damage on the

circumstances of the accident as explained to him by the investigating officers. He further stated that crab bites

seemed the most logical explanation at the time. He had no independent recollection of this incident and could

not explain why only Foret’s face was so damaged and that there was no similar damage to Lambert's body.

29

water, with no barnacle line showing. A barnacle line is

apparent in Defendant's Exhibits 10, 11 and 12. Thus,

the best evidence of the height of the piling above the

water at high tide is 12 inches.

Although Crochet claims it was high tide at the

time of the accident plaintiffs introduced no corroro-

bating evidence indicating at what time of day it was

high tide on the date of the accident, and the photo-

gtaphs introduced in evidence do not support his claim

of high water. There was credible testimony from

other witnesses to the effect that at this particular time

of the year, i.e., during the winter season, tides in this

area were generally low. In the absence of further proof

it would be pure speculation to conclude that the tide

in winter or on the date of the accident reached the

high water mark indicated by some of the pictures on

the bank.

Furthermore, since Foret was able to see the

piling it obviously was exposed. Likewise, the moving

picture photographs of the accident scene which were

viewed by the Court, showed the piling to be above the

water and visible from quite a distance.

Thus, the Court concludes that there is no relia-

ble evidence ° that the piling at the time of the

accident was exposed less than 14 to 16 inches and

probably was exposed approximately 18 inches as

testified to by the investigating officers and as shown

by the films taken in winter (Plaintiff's exhibits 20,

21,22).

} In addition to Crochet’s testimony being at variance with that of other witnesses and physical evidence,

other facvors in ascsibing the weight and effect which has been accorded to his testimony are: the original

sey ey ops ONE Nag RCN FN a

the intersection traveling down Bayou Chauvin rather than down defendant's canal, his

seoutniaed puapetbnahhte anthenliteiiag otis thocnee to nnt ennsietent with uhenperiensediunter vndidbermen

proceeding through » unfamiliar maze of waterways without the benefit of « chart and running the risk of

becoming lost, nor is it consistent with his knowledgeable testimony of the area while testifying

Exhibits 4 and 5 (the chart of the area); hie failure to explain, if he were in fact looking ahead and traveling ata

reasonable rate of speed, why he would be heading through the alleged cluster of water lillies when there was

ample space to avoid it; his apparent shock (as reported by Sheers) after the deaths could have colored his

recollection of physical conditions and what transpired prior to the accident.

4 The court rejects the testimony of plaintiff's witness Michael Tivet, the only witness who testified that he had

seen the piling under water, as the Court finds his testimony to be lacking in credibility

30

The Court is of the opinion that Foret should not

have been standing in a small speedboat traveling

through unknown waters at a speed of 15-20 miles an

hour, wearing hip boots, and without a life jacket.

Regardless of whether or not he was required to wear a

life jacket prudence indicates that under the circum-

stances it was reckless of him to expose himself to

danger in such a manner.

CONCLUSIONS OF LAW

This cause of action is a maritime tort and is

cognizable under the admiralty jurisdiction of this

Court. The suit is properly removed from the state

courts and venue is proper in the Eastern District of

Louisiana.

Plaintiff, in furtherance of his claim alleges that

the piling at issue is the proximate cause of this

collision and that defendant breached an affirmative

duty to remove or mark such hazard to navigation.

Defendants deny same and allege that plaintiffs’ negli-

gence was the proximate cause of the accident.

Although it has been briefed by the parties, the

Court need not address the issue of whether or not the

landowner or the defendant as owner of the servitude

owed a duty to plaintiffs in this case because we find the

piling is not the proximate or legal cause of this

collision.

In order for plaintiffs to sustain their burden of

proving every element of their claim herein by a

preponderance of the evidence, the Court must con-

clude that defendant has both breached a duty with

respect to the piling in question and that such failure

was the cause of the accident. The plainfiffs have failed

31

to prove by a preoponderance of the evidence that the

piling was not in plain view on the date in question.

Having made this determination, it is appropriate to

apply the concept of legal cause with respect to the

casualty.

In Spinks v. Chevron Oil Company, 507 F. 2d 216 (5th

Cir. 1975) the Fifth Circuit replaced the concept of

proximate cause as applied in maritime tort cases with

the modern theory of legal cause. The Court, quoting

from the American Law Institute Restatement 2d of

Torts, stated:

“The elements of legal cause ate negli-

gence, a causalconnection between the

negligence and the injury, the invasion of

a legally protected interest, and a lack ofa

countetvailing legally protected interest

as a defense to liability. The defendant’s

negligence must be a substantial factor in

bringing about the harm, with no rule of

law relieving the actor of fault. ‘Substan-

tial’ means more than ‘but for’ the negli-

gence, the harm would not have resulted

and more than merely negligible negli-

gence. The gist of it is that some responsi-

bility for the effect must accompany the

cause. Supra, at P. 223.

Under either a proximate or legal cause analysis,

the law requires that the consequences of the risk

assumed be generally foreseeably by a reasonable man

under similar circumstances; it does not require that

the precise chain of events leading to the particular

injury in question be foreseeable. O/ympic Towing Corp.

v. Nebel Towing Corp. 419 F. 2d 230 (Sth Cir. 1969) cert.

den., 397 U.S. 989, 90 S.C. 1120. lonmar Compania etc. v.

Central of Ga. R. Co., 471 F. Supp. 942 (S.D. Ga. 1979).

32

The evidence in this case does not support the

contention that on the date of the accident the piling

was a hidden hazard. On the contrary the evidence

supports the conclusion that it was open and obvious

and could or should have been seen by any person

exercising reasonable care. Defendant had the right to

expect that anyone making use of its private pipeline

canal would proceed ata reasonable speed and see what

could be seen. Moreover, since there was more than

ample space for any type of vessel, boat or barge that

could be used in this canal to pass without striking the

piling, defendant could not have reasonably antici-

pated that someone would strike it. In summary, we

find that the sole substantial factor in causing the

accident was the negligence of the plaintiff Crochet,

and not the defendant’s failure to remove or mark the

piling.

In addition, we find as noted in the aforesaid

findings of fact that Foret failed to exercise reasonable

care for his own safety and thus he was guilty of

contributory negligence which we assess at 25%. St.

Hillaire Moye v. Henderson, 364 F. Supp. 1286 (E.D. Ark,

1973), aff'd 496 F. 2d 973 (Cir. 8 1974), cert. den., 419

U.S. 884; Palmer v. Ribax, Inc., 407 F. Supp. 974 (M.D.

Fla. 1976); Griffith v. United States, 180 F. Supp. 454 (D.

Wy. 1960).

During the trial and in pre-trial and post-trial

memoranda all parties appear to have neglected to

take into consideration that defendant pursuant to

Rule 9 (b) tendered plaintiff Crochet as a defendant to

plaintiff Foret. Therefore, in view of our conclusions

33

that Crochet’s negligent actions caused the accident,

there should be judgment herein in favor of Foret,

against Crochet. However, since plaintiff Cindy Foret

is the daughter of Paul C. Crochet and both plaintiffs

were represented by the same parties, we will presume

this claim is waived and/or is not the desired result of

our conclusions with respect to Crochet’s negligence.

Accordingly, we will not order entry of judgment

herein by the Clerk for ten days in order to give

plaintiff Foret an opportunity to respond to these

observations.

Specifically, we find that Plaintiff Cindy Foret

would be entitled to recover as follows:

Loss of income to date of trial .... $19,503.52

Loss of future income

discounted at 7%........ceeeee. 137,572.50

RA CO IONE ais ws cent cedenccenan 40,000.00

$194,076.02

Less plaintiff's contributory

negligence of 25% ........-... 48,519.00

ind 5 ad's cunneuens pe tes $145,557.02

If plaintiff Foret does not respond in ten days the

Clerk of Court will be ordered to enter a judgment in

both proceedings Nos. 78-4151 and 78-4152 dismis-

sing both causes of action at plaintiffs’ costs. If plaintiff

Foret advises she has not waived her claim against

plaintiff Crochet, there will be judgment herein in

favor of Cindy Foret against Paul C. Crochet in

Proceedings No. 78-4152 in the sum of $145,557.02.

New Orleans, Louisiana, this 6th day of February,

1980.

UNITED STATES DISTRICT JUDGE

34

CERTIFICATE OF SERVICE

As shown by the separately filed Certificate of

Service, which lists the persons served with copies of

the Supplemental Appendix to Jurisdictional State-

ment, service has been made upon all parties of record.

/s/Michael J. Samanie

Counsel for Appellant