Petition for Writ of Certiorari — Dixon v. Penrod Drilling Co.

Supreme Court, U.S,

FILED

JUL 25 1588

JOSEPH F SPANTOL, UR.

BE 41445

No. -—-—--—

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

JAMES E. DIXON,

Petitioner

V.

PENROD DRILLING COMPANY,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

C. E. SOREY, II *

RAMSEY, ANDREWS & SOREY, P.A.

Post Office Box 1359

Vicksburg, Mississippi 39180

Telephone: (601) 636-5561

AUBREY B. HIRSCH, JR.

BUTLER, HEEBE & HIRSCH

712 American Bank Building

New Orleans, Louisiana 70130

Telephone: (504) 524-3731

Co-Counsel for Petitioner

James E. Dixon

* Counsel of Record

WILSON - EPEs PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

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QUESTIONS PRESENTED

Foremost, whether the Court below has applied long-

established precedents of the Supreme Court in regard to

proof of negligence in Jones Act cases of “even in the

slightest”’.

Further, whether an appellate court may reverse a

jury verdict entered in favor of a Plaintiff in a Jones

Act proceeding simply because different inferences could

be drawn by evidence reflecting a Defendant’s negligence.

Finally, whether a finding by the jury of contributory

negligence on the part of the Plaintiff in a Jones Act

proceeding can operate to bar recovery against a De-

fendant.

(i)

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TABLE OF CONTENTS

OPINIONS BELOW ............. svinnbivberinnadiidiaen cetshstiiananendheaaaanbetns

PEPIN hesicanibannthiduccinsisloncthanckadinieinsomentidaabdanensatinaten

TEE IN TID iaalaeitettdainscccndicceinpeadlic liensceacisddbdeanet

-—STATEMENT OF THE CASE ........000.0000000000000..... —

REASONS FOR GRANTING THE WRIT .....................

APPENDIX:

Order on Petition for Rehearing of April 26, 1988..

Opinion of United States Court of Appeals for the

Fifth Circuit of March 30, 1988 —....0.. 0.

Journal Entry of Judgment of March 30, 1988......

Judgment of February 19, 1987 -........20..0220 ee. -

Interrogatories Propounded to the Jury ( Verdict)..

(iii)

iv

TABLE OF AUTHORITIES

CASES Page

Allen v. Sea Coast Products, Inc., 623 F.2d 355 (5th

i III :aciseshs toni actatcconnexcpsnisinkanibdignaniateahiahiamaianiiohhadasisds 6

Caldwell v. Manhattan Tankers Corporation, 618

- | FF Fo S| 7

Comeauzx v. T. L. James & Company, Inc., 702 F.2d

ee Se hs I etree icnttiticeiedetsiinatcnationindintnnan 6,7

Davis v. Hill Engineering, Inc., 549 F.2d 314, 331

I altnicdaaictcssbtaconinciuiececnsogunitleniamsienntitinnn 7

Ferguson v. Moore-McCormick, Inc., 352 U.S. 521,

523, 77 S.Ct. 457, 458, 1 L.Ed.2d 511, 513

RII TD siistitis snatinascihi chats lhcectsicahdeieendinenniadinbiaenbieeenianbidabes 5

Heater v. Chesapeake & Ohio Railway Company,

407 P24 1243 (7th Cir. 1974) ................-.-............ 6

Holmes v. J. Ray McDermott & Company, 734 F.2d

Re Gee SII tasesendcessetctianccnncenistesicbananeesesens 7

Hussein v. Isthmian Lines, Inc., 405 F.2d 946 (5th

UNL.” SUID sctettcieipienaasaianithaneaaaanadeiilliigataiatmaigmiaiissianebbinndabie 9

Kendrick v. Illinois Central Gulf Railroad Com-

pany, 669 F.2d 341 (5th Cir. 1982) -.......... eae 11

Kratzer v. Capital Marine Supply, Inc., 490 F.

en 7

Leonard v. Exxon Corporation, 581 F.2d 522, 524

(5th Cir. 1978), cert. denied, 441 U.S. 923, 99

S.Ct. 2082, 60 L.Ed.2d 397 (1979) ..................... 7

McBride v. Laughlin Brothers Company, 422 F.2d

WD RR Reesor s

Perry v. Morgan Guaranty Trust of New York, 528

F.2d 1378, 1379 (5th Cir. 1976) .. owe S

Robin v. Wilson Bros. Drilling, 719 F. 2d 96 (5th

tb RGR EEN SP es ce eves eo NR 5

Rogers v. Missouri Pacific Railroad Company, 352

U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493

(1957) .......... I ALN RC En BE A TR asee..6, 8, 12

Springborn v. American Commercial Barge Lines,

Inc., 767 F.2d 89 (5th Cir. 1985) ........................... 6,8

Sweeney v. American Steamship Company, 491

F.2d 1085, 1089 (6th Cir. 1974) ............................. 10

a oo

Vv

TABLE OF AUTHORITIES—Continued

Page

Tennant v. Peoria & Pekin Union Railway Com-

pany, 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed.2d 520

(a ae piuneidaiaasiaumininanassadsaamanineen 9

Thezan v. Maritime Overseas Corporation, 708 F.2d

175 (5th Cir. 1983), cert. denied, 464 U.S. 1050,

104 S.Ct. 729, 79 (L.Ed.2d 189 (1984) ......... 7,10, 11, 12

STATUTES

28 U.S.C., Section 1254 (1) .................... ee 2

Ce iris Sn GI OIDT i eaiticcncccdintesdaieninscenctnaeeeencens 2

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

JAMES E. DIXON,

Pe fof oner

PENROD DRILLING COMPANY,

Re sponde nt

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

To the Honorable, the Chief Justice and Associate Jus-

tices of the Supreme Court of the United States:

James E. Dixon, the Petitioner herein, prays that a

Writ of Certiorari issue to review the judgment of the

United States Court of Appeals for the Fifth Circuit

entered in the above entitled case on March 30, 1988.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fifth Circuit is unreported and is printed in Appen-

dix A hereto, infra, page 2a. The judgment of the

United States Court of Appeals for the Fifth Circuit is

printed in Appendix A hereto, infra, page 8a. The

Journal Entry of Judgment of the United States District

2

Court for the Eastern District of Louisiana is printed in

Appendix A hereto, infra, page 9a.

JURISDICTION

The judgment of the United States Court of Appeals

for the Fifth Circuit (Appendix A, infra, page 8a)

was entered on March 30, 1988. A timely petition for

rehearing was denied on April 26, 1988 (Appendix A,

infra, page la). The jurisdiction of the Supreme Court

is invoked under 28 U.S.C., Section 1254(1).

STATUTE INVOLVED

This case involves 46 U.S.C., Section 688(a), which

provides as follows:

“Any seaman who shall suffer personal injury in the

course of his employment may, at his election, main-

tain an action for damages at law, with the right of

trial by jury, and in such action al] statutes of the

United States modifying or extending the common-

law right or remedy in cases of personal injury to

railway employees shall apply; and in case of the

death of any seaman as % result of any such personal

injury the personal representative of such seaman

may maintain an action for damages at law with the

right of trial by jury and in such action all statutes

of the United States conferring or regulating the

right of action for death in the case of railway em-

ployees shall be applicable. Jurisdiction in such ac-

tions shall be under the court of the district in which

the defendant employer resides or in which his prin-

cipal office is located”.

STATEMENT OF THE CASE

Petitioner, Plaintiff and Appellee below, instituted this

proceeding against the Defendant-Appellant, Penrod

Drilling Company (“Penrod”), to recover damages to

compensate him for personal injuries he sustained while

performing his duties as a Rig Mechanic for Penrod

3

aboard Penrod’s Rig 63 on July 6, 1983. In part, Peti-

tioner averred that he was entitled to recover damages

from Penrod pursuant to the Merchant Marine (Jones)

Act, Title 46, United States Code, Section 688, et seq.,

based upon Penrod’s negligence in causing or bringing

about Petitioner’s injuries. Petitioner thus averred that

a sump valve which he was required to operate in dis-

charge of his responsibilities for Penrod was defective,

and thus constituted a dangerous and unsafe condition

for Petitioner to perform his duties on behalf of Penrod

in violation of the provisions of the Jones Act.

Trial of the above captioned proceeding was commenced

under date of February 9%, 1987, before the Honorable

Lansing L. Mitchell, and continued through February 11,

1987. At the close of Petitioner’s case, Defendant moved

for a directed verdict, which the Court duly denied. The

jury subsequently returned a verdict in favor of the

Petitioner and against Penrod in the amount of

$501,706.00, in which the jury found that Penrod was

negligent and thus liable for damages to Petitioner pur-

suant to the Jones Act. Because the jury likewise con-

cluded that the Petitioner was fifty (50%) percent con-

tributorily negligent, the jury verdict was reduced for

purposes of Judgment to the sum of $250,853.00, which

Judgment was entered by the Court under date of Feb-

ruary 20, 1987.

Penrod filed a litany of post-trial Motions which were

denied. Clearly, the trial court believed that there was

not a complete absence of probative facts to support the

verdict of Petitioner, as the Appellate Court as stated.

The ample evidence presented before the District Court

in this case confirms that Petitioner was injured during

the course of attempting to operate a valve situated within

the air-compressor room on board Penrod’s Rig 63. The

Petitioner was employed as a Rig Mechanic by Defend.

ant and was stationed aboard Defendant’s Penrod 63, a

three-legged jack-up rig, situated within the waters of

4

the Gulf of Mexico, off of the Louisiana Coast. As part

of Petitioner’s usual and customary duties aboard Penrod

63, and in performing the discharge of his duties as Rig

Mechanic thereon, Petitioner was required to attempt to

release a sump valve situated in the air-compressor com-

partment of the vessel. Petitioner was thus required to

perform this task in order to contribute to the function

of the vessel’s regular operation and maintenance, and

to further comply with his duties as Rig Mechanic on

behalf of Penrod.

Petitioner testified that, as he attempted to release the

subject valve, it refused to release as it, and others like

it, were normally and customarily released. Rather, the

valve was stuck and refused to properly turn or other-

wise release in the customary and proper manner. Peti-

tioner utilized the normal procedure prescribed by Penrod

to attempt to open the valve, but was required to exert

extra force and pressure upon the T-tool utilized to op-

erate the subject valve in an effort to release it and dis-

charge his duties on behalf of Penrod. As Petitioner was

attempting to release the valve, it suddenly opened, and

he felt a sharp, sudden and severe pain to his back and

shoulder, resulting in the injuries of which Petitioner

now complains.

The uncontroverted testimony offered by Petitioner was

that the subject valve was “stuck”, and was not working

in the manner in which it was intended at the time he

was required to operate this valve. The evidence further

established that, had the valve been functioning in its

proper and intended manner, it would not have stuck,

nor would there have been any problem in opening or

closing this vaive. In this regard, Petitioner testified

that he was unaware that the valve would not function

as intended at the time of his accident, and that he had

no reason to suspect any trouble in the operation of the

valve.

5

Ample evidence was introduced before the Court that

it was not the duty of the Rig Mechanic aboard Rig 63

to conduct regularly scheduled inspections of the subject

sump valve. Rather, Petitioner was only required to

specifically repair these types of valves once he knew

that a problem existed. The evidence thus reflected that

Mr. Dixon had no reason to suspect that this valve would

not properly work on the morning of July 6, 1983.

In consideration of the above-stated evidence, the jury

returned a verdict in favor of Petitioner and against

Defendant. Clearly, the jury concluded that Penrod had

failed to discharge its duty to furnish Petitioner with a

safe place within which to work. The Court properly

denied Defendant’s Motions for Directed Verdict, as

there was clearly evidence presented before the Court to

support the jury’s verdict.

An appeal was taken to the United States Court of

Appeals for the Fifth Circuit. The Court reversed and

rendered with unpublished opinion (Appendix A, infra,

pages 2a and 8a), which necessitated this Petition.

REASONS FOR GRANTING THE WRIT

By reversing and rendering the verdict of the jury,

the Court below has, in effect, placed itself as the trier

of fact, at least in the instant case.

The Jones Act has historically been interpreted as

remedial legislation, extending to seamen the rights held

by railroad workers under the Federal Employer’s Lia-

bility Act. In this respect, the FELA standard of review

has been applied to Jones Act cases, which are liberally

construed in favor of injured seamen. See: Ferguson v.

Moore-McCormick Lines, Inc., 352 U.S. 521, 523, 77 S.Ct.

457, 458, 1 L.Ed.2d 511, 513 (1957). The quantum of

evidence necessary to establish liability is much less in a

Jones Act case (as in an FELA case) than it would be

in an ordinary negligence case. Robin v. Wilson Bros.

ics

6

Drilling, 719 F.2d 96 (5th Cir. 1983); Heater v. Chesa-

peake & Ohio Railway Company, 497 F.2d 1243 (7th

Cir. 1974).

The burden of proving the Defendant’s negligence is,

of course, upon Petitioner, who must prove by a prepon-

derance of the evidence that such negligence played some

part, however small, in actually bringing about or caus-

ing the alleged injuries. It is not necessary that Peti-

tioner prove that the negligence of the Defendant. or its

employees, was the sole cause, or even the principal cause

of Petitioner’s injuries. All that is required is that Peti-

tioner prove by a preponderance of the evidence that

Penrod’s negligence played some part, even a slight part,

in causing Petitioner’s injuries. See: Rogers v. Missouri

Pacific Railroad Company, 352 U.S. 500, 506, 77 S.Ct. |

443, 448, 1 L.Ed.2d 493 (1957).

The Court in Rogers at page 448 establishes the test |

of a jury case under the FELA (and Jones Act) as

being:

“. . Simply whether the proofs justify with reason

the conclusion that employer negligence played any

part, even the slightest, in producing the injury or

death for which damages are sought. It does not

matter that, from the evidence, the jury may also

with reason, on grounds of probability, attribute the

result to. other causes . . . Judges are to fix their

sites primarily to make that appraisal and, if that

test is met, are bound to find that a case for the

jury is made out whether or not the evidence allows

the jury a choice of other probabilities.” (Emphasis

supplied )

The “slightest negligence” standard has been repeat-

edly adopted and applied by the Fifth Circuit to evalua-

tion of Jones Act proceedings. See: Springborn v. Amer-

ican Commercial Barge Lines, Inc., 767 F.2d 89 (5th

Cir. 1985); Comeaux v. T. L. James & Company, Inc.,

702 F.2d 1023 (5th Cir. 1983); Allen v. Sea Coast Prod-

7

ucts, Inc., 623 F.2d 355 (5th Cir. 1980). As Penrod

must concede, Petitioner’s burden of proving his case

pursuant to the Jones Act is thus “featherweight”, and

all that is required is a showing of “slight negligence’.

See: Davis v. Hill Engineering, Inc., 549 F.2d 314, 331

(5th Cir. 1977); Holmes v. J. Ray McDermott & Com-

pany, 734 F.2d 1110 (5th Cir. 1984) ; Kratzer v. Capital

Marine Supply, Inc., 490 F. Supp. 222 (M.D. La. 1980),

affirmed, 645 F.2d 477 (5th Cir. 1982). These consider-

ations have caused the Fifth Circuit to characterize Pe-

titioner’s burden in a Jones Act case as “minimal”:

“The submission of such a case to a jury requires a

very low evidentiary threshold and even marginal

claims are properly left for jury determination’ ”’.

Caldwell v. Manhattan Tankers Corporation, 618

F.2d 361, 363 (5th Cir. 1980), quoting Leonard v.

Exxon Corporation, 581 F.2d 522, 524 (5th Cir.

1978), cert. denied, 441 U.S. 923, 99 S.Ct. 2032, 60

L.Ed.2d 397 (1979).

Applicability of these standards thus lead the Fifth

Circuit to conclude as follows, in evaluating post-trial

motions presented in a Jones Act case:

“In keeping with this less demanding standard of

proof of causation, the test for sufficiency of evi-

dence in a Jones Act case also requires less evidence

to support a finding and directed verdicts and

J.N.O.V. motions are granted ‘only when there is a

complete absence of probative facts’ to support a

verdict.” Comeaux v. T. L. James & Company, Inc.,

supra, at p. 1024.

In this respect, the appropriate standard of review for

this Court to test the sufficiency of the evidence in a

Jones Act claim is whether there is a “reasonable evi-

dentiary basis’ for the jury’s verdict. Thezan v. Mari-

time Overseas Corporation, 708 F.2d 175 (5th Cir. 1983),

cert. denied, 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d

189 (1984). In those circumstances where there is an

evidentiary basis for the jury’s verdict, then the Appel-

8

late Court’s function is exhausted and the Defendant is

not free to relitigate the factual dispute. See: McBride

v. Laughlin Brothers Company, 422 F.2d 363 (5th Cir.

1970). The Fifth Circuit thus continues to allow a jury

verdict to stand unless there is a complete absence of

probative facts to support it. Perry v. Morgan Guaranty

Trust of New York, 528 F.2d 1378, 1879 (5th Cir.

1976). As the Fifth Circuit has recently held:

“Therefore, when the Defendant moves for a di-

rected verdict, we deny it and let the case go to the

jury if there is slight evidence supporting the Plain-

tiff. Similarly, we deny the Defendant’s Motion for

J.N.O.V. if the jury has decided for the Plaintiff and

the Defendant seeks to escape the verdict.” Spring-

born v. American Commercial Barge Lines, Inc.,

supra, at p. 99.

Incredibly, Penrod, in the instant case, contends that

the record is devoid of any evidence whatsoever as to

Penrod’s substantial negligence. Such a position is pre-

posterous. Certainly, there is considerable evidence and

testimony of the record of this matter that supports a

finding of negligence, and consequently liability, of De-

fendant Penrod. Petitioner established that the valve in

question was, in fact, stuck at the time Plaintiff at-

tempted to throw said valve, that Penrod was negligent

by allowing the valve to be in that condition, and that

the defective valve played some part, even the slightest,

in producing Petitioner’s injuries.

The finding of the Court below has completely ignored

the long-established principles set out in Rogers v. Mis-

sourt Pacific Railroad Company, supra, and the numerous

cases since. To do so was error, which is the basis of

this appeal.

The Court below found that Petitioner failed to pro-

duce any evidence to establish the existence of negligence

by Penrod in failing to provide Petitioner with a safe

place to work. In other words, after reviewing the evi-

9

dence, it came to a different factual conclusion than that

derived by the jury.

In its opinion, the lower Court found that... “a Rig

Mechanic’s job on a drilling rig includes inspecting, main-

taining, and repairing equipment on the rig and requires

considerable mechanical skills. Rig Mechanics routinely

perform tasks far more demanding than opening sump

valves.” (Opinion, p.5) Such language suggests that the

Plaintiff assumed the risk that might be inherent in his

position.

In citing Hussein v. Isthmian Lines, Inc., 405 F.2d

946 (5th Cir. 1968), the lower Court stated that Peti-

tioner was under a duty to use ordinary care in selecting

or using one tool over another. At the moment of his in-

jury, Petitioner was using the “only tool” (T-tool) pro-

vided and located in the compartment. He was not aware

of any problems during the few seconds involved in open-

ing the valve and injuring himself. However, the jury

did find Petitioner 50% contributorily negligent, which

certainly takes into account this particular theory of the

lower Court. Petitioner would refer to the statement of

the Supreme Court in Tennant v. Peoria & Pekin Union

Railway Company, 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed.2d

520 (1944):

“Tt is not the function of a court to search the rec-

ords for conflicting circumstantial evidence in order

to take the case away from the jury on a theory

that the proof gives equal support to inconsistent

and uncertain inferences. The focal point of judicial

review is the reasonableness of the particular infer-

ence or conclusion drawn by the jury. It is the jury,

not the court, which is the fact-finding body. It

weighs the contradictory evidence and inferences,

judges the credibility of witnesses, receives expert

instruction, and draws the ultimate conclusion as to

the facts. The very essence of its function is to

select from among conflicting inferences and con-

clusions that which it considers most reasonable...

10

That conclusion, whether it relates to negligence,

causation or any other factual matter cannot be ig-

nored. Courts are not free to reweigh the evidence

and set aside the jury verdict merely because the

jury could have drawn different inferences and con-

clusions or because judges feel that other results are

more reasonable.” Id. at p. 412 (Emphasis supplied)

Yet, this is precisely what the lower Court did in its

finding. In essence, the lower Court inquired into the

presumptions and inferences that flowed from the jury’s

finding of negligence. However, it is a cardinal prin-

ciple of jurisprudence that an Appellate Court is not

allowed to speculate as to the thought process of the

jury. Thezan v. Maritime Overseas Corporation, 708

F.2d 175 (5th Cir. 1983), cert. denied, 464 U.S. 1050,

104 S.Ct. 729, 79 L.Ed.2d 189 (1984).

In the deliberation of the FELA and Jones Act cases,

the trier of fact is customarily allowed a measure of

speculation and conjecture to settle the dispute by choos-

ing the most reasonable inferences. See: Sweeney v.

American Steamship Company, 491 F.2d 1085, 1089 (6th

Cir. 1974). Only when there is a complete absence of

probative facts to support the conclusion reached does

reversible error appear.

Petitioner avers that the evidence produced before the

trial Court .demonstrated that Penrod required its em-

ployees to work in a potentially dangerous and hazardous

condition while failing to take even the slightest degree

of care to insure that Rig 63, and specifically the sump

valves situated thereon, constituted a safe place in which

to work. Had Penrod exercised reasonable care in this

case which should have been expected of it, Petitioner

certainly could have known of the existence of the defect

or the problem itself could have been eliminated. Pen-

rod’s failure to properly furnish Petitioner with a safe

place in which to work thus supports the jury’s finding

that Penrod was negligent under the Jones Act.

11

Of course, even if Petitioner’s injuries resulted in part

from his own negligence, whether in failing to carry out

his duties or in some other respect, such negligence would

only reduce, not bar, recovery unless Penrod was not

negligent at all. See: Kendrick v. Illinois Central Gulf

Railroad Company, 669 F.2d 341 (5th Cir. 1982); The-

zan v. Maritime Overseas Corporation, supra. In this

case, the jury carefully weighed the evidence, both with

respect to Penrod’s negligence, and Defendant’s claims

that Petitioner was himself contributorily negligent. Af-

ter deliberating for more than three (3) hours, the jury

returned its verdict finding that Petitioner was fifty

(50%) percent contributorily negligent. Clearly, the

very fact that the jury found Petitioner to have contrib-

uted one-half (14) to his own injuries best reflects the

care and consideration given by the jury to the evidence

adduced below.

In the case of Kendrick v. Illinois Central Gulf Rail-

road Company, supra, cited by Penrod, the Petitioner had

injured himself by falling and tripping over objects

which he was charged with the duty of maintaining. The

Defendant railroad argued that Kendrick could not re-

cover on his FELA claim for the reason that he should

not be allowed to take advantage of his failure to per-

form the duties assigned to him by the railroad. The

Court reversed the Judgment rendered in Kendrick’s

favor because of the inclusion of an improper instruc-

tion to the jury; however, the Court confirmed that Ken-

drick’s negligence, if any, could not bar recovery unless

the employer was without negligence.

Comparably, the Fifth Circuit case of Thezan v.

Martime Overseas Corporation, supra, likewise confirms

that an employee’s breach of a duty owed to his em-

ployer cannot proscribe recovery pursuant to the Jones

Act. Thezan sued under the Jones Act on the grounds

that his injuries were caused by the negligence of his

employer, and sought recovery under the maritime

—

12

theory of unseaworthiness. The jury returned a verdict

finding the subject vessel seaworthy, but holding Thezan’s

employer negligent. However, the jury likewise found

Thezan’s own negligence made a ninety (90%) percent

contribution to his injury, thus reducing his damage

award to $6,000.00. Thezan appealed.

The Court routinely affirmed the jury’s verdict. Even :

though Thezan was found to be ninety (90%) percent

contributorily negligent, and the jury denied his claim

for unseaworthiness, the Court concluded that there was

a “reasonable evidentiary basis” for the jury’s verdict.

Thezan v. Maritime Overseas Corporation, supra, at

p. 181.

By returning a verdict in favor of Petitioner, the jury

herein concluded that the evidence presented at trial sup-

ported Petitioner’s contention that Penrod was negligent

and that this negligence was a cause, however slight, for

Petitioner’s resulting injuries. Penrod thus violated its

duty to provide Petitioner with a safe place within which

to work as required by the Jones Act, and is thereby

responsible for the resulting damages.

Se ee Se

Petitioner respectfully avers that the lower Court erred

in its original Opinion to the extent that the Court may

have relied upon the argument advanced by Penrod that

Petitioner’s job, as a Rig Mechanic, would have encom-

passed the duty to repair the valve which caused his in-

jury. Certainly, the jury was given a fair and equitable

opportunity to decide upon the issues of Petitioner’s ac-

cident and their findings are clearly supportable by the

law and the evidence.

With ali due respect to the lower Court’s Opinion, Pe-

titioner must argue that not only was Rogers, supra, and

its successor cases totally ignored, they were totally

omitted from consideration. The Opinion was not pub-

lished. If it had been published, it would have, without

question, severely clouded existing law.

alee anit rma

13

CONCLUSION

For the foregoing reasons this Petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

C. E. SOREY, II *

RAMSEY, ANDREWS & SOREY, P.A.

Post Office Box 1359

Vicksburg, Mississippi 39180

Telephone: (601) 636-5561

AUBREY B. HIRSCH, JR.

BUTLER, HEEBE & HIRSCH

712 American Bank Building

New Orleans, Louisiana 70130

Telephone: (504) 524-3731

Co-Counsel for Petitioner

James E. Dixon

July 25, 1988 * Counsel of Record

APPENDIX

la

APPENDIX

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 87-3296

JAMES E. DIXON,

Plaintiff-A ppellee,

versus

PENROD DRILLING Co.,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Louisiana

ON PETITION FOR REHEARING

(April 26, 1988)

Before KING and DAVIS, Circuit Judges, FELDMAN,

District Judage.*

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in the above entitled and numbered cause be and the

same is hereby denied.

ENTERED FOR THE COURT:

/s/ W. Eugene Davis

United States Circuit Judge

2a

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 87-3296

JAMES E. DIXON,

Plaintiff-A ppellee,

versus

PENROD DRILLING Co.,

Defendant-A ppellant.

Appeal from the United States District Court

for the Eastern District of Louisiana

CA-86-2719-LLM (5) )

(March 30, 1988)

Before KING and DAVIS, Circuit Judges, FELDMAN,*

District Judge.*

DAVIS, Circuit Judge:

Penrod Drilling Company appeals the district court’s

denial of its motion for Judgment Notwithstanding the

Verdict (NOV) after a jury awarded James Dixon dam-

* District Judge of the Eastern District of Louisiana, sitting by

designation.

* Local Rule 47.5 provides: “The publication of opinions that have

no precedential value and merely decide particular cases on the

basis of well-settled principles of law imposes needless expense on

the public and burden on the legal profession.” Pursuant to that

Rule, the court has determined that this opinion should not be

published.

3a

ages under the Jones Act for personal injuries sustained

while employed on a Penrod drilling rig. Finding no

probative facts to support the verdict, we reverse.

I.

In July 1983, James Dixon was employed as a rig

mechanic aboard the PENROD 63, which was drilling

for oil off the coast of Louisiana in the Gulf of Mexico.

As a rig mechanic, Dixon was responsible for the gen-

eral maintenance and repair of mechanical equipment

located aboard the rig. At the time of his injury, Dixon

had been employed in this capacity for approximately

five years aboard various Penrod drilling rigs.

On July 6, 1983, Dixon was working near the rig’s

engine room when he noticed that water had accumulated

in the engine room “sump.” A “sump” is a cavity lo-

cated below the deck that serves as the accumulation and

drainage point for water from a particular compartment

of the rig. The accumulation of water in the sumps is

not unusual because water used to clean the deck or

machinery ordinarily drains into the sumps. Dixon was

often called upon to drain such accumulations of water

through a series of “sump valves.” To drain the engine

room deck, Dixon was required to release the “sump

valve” in the air compressor room of the rig. The sump

valve, which is located at the base of the sump, is op-

erated by turning a round handle on top of the valve

that extends above the sump floor. To turn the valve

handle and open the sump valve, the mechanic engages

and turns the valve handle with a T-tool. The T-tool is

a simple device (not unlike a car lug wrench) that con-

sists of a three-foot rod with prongs on one end, that

engages the valve handle, and a one-foot horizontal bar

on the opposite end which the mechanic grasps to rotate

the tool. Using a “T-tool,” Dixon attempted to open this

sump valve by engaging the valve with the T-tool and

twisting on the T-tool bar. On Dixon’s third twist of the

4a

tool, the valve suddenly opened, causing Dixon to shift

his weight and slip. Dixon hurt his back as a result of

this incident for which he received extensive treatment,

including an unsuccessful surgery.

Dixon sued Penrod under the general maritime law

and the Jones Act, 46 U.S.C. § 868 et seq., seeking dam-

ages for his injuries. The district court denied Penrod’s

motion for directed verdict and, in response to special

interrogatories, the jury found that the PENROD 63

was seaworthy but that Penrod was negligent and that

this negligence was the legal cause of Dixon’s injury.

The jury also found Dixon fifty-percent negligent in

causing his injury. Damages were assessed at $501,706.

Discounting for Dixon’s contributory negligence, the dis-

trict court entered judgment on the verdict in favor of

Dixon in the amount of $250,853. Penrod then moved

for a judgment NOV which was denied by the district

court. Penrod now appeals from the district court’s de-

nial of its motion for judgment NOV.

Appellate review of a jury verdict under the Jones Act

is much narrower than in an ordinary negligence claim.

A directed verdict or judgment NOV on a Jones Act

claim is only appropriate when the court finds a com-

plete absence of probative facts to support the non-

movant’s position. Springborn v. American Commercial

Barge Lines, Inc., 767 F.2d 89, 98 (5th Cir. 1985);

Comeaux v. T. L. James & Co., Inc., 666 F.2d 294, 298

n.3 (5th Cir. 1982). With this standard in mind, we

now turn to a review of the record evidence to determine

whether the district court erred in denying Penrod’s mo-

tion for judgment NOV.

Dixon argues that the jury was entitled to find that

the sump valve was “stuck” and Penrod was negligent

in allowing the valve to be in that condition. Dixon sug-

gests that Penrod could have prevnted this stuck valve

by instituting an inspection program designed to periodi-

cally check the valves and lubricate them if they were

5a

stuck. Dixon also argues that Penrod was negligent in

not checking the sump valves after the PENROD 63 was

reactivated following an unspecified period in which the

rig was inactive.

In order to find that Penrod was negligent, the jury

necessarily found that Penrod was not entitled to rely on

its rig mechanics to use available tools to open the sump

valves without injuring themselves. Instead, the jury

obviously found that Penrod had a duty to inspect and

maintain the sump valves so that they turned without

difficulty.

We note initially that, although we analyze the facts

of this case as though the sump valve was “stuck”, Dixon

testified that the difficulties he encountered with this

valve were not extraordinary. He testified that he usually

turned the valve handle after giving the tool one or two

“jerks.” On this occasion, the valve turned on Dixon’s

third jerk of the tool.

A rig mechanic’s job on a drilling rig includes inspect-

ing, maintaining, and repairing equipment on the rig

and requires considerable mechanical skills. Rig me-

chanics routinely perform tasks far more demanding than

opening sump valves. Before Dixon went to work for

Penrod, he worked as an auto mechanic from 1966 to

1978. With this background of thirteen years as a me-

chanic, Dixon was hired by Penrod as a rig mechanic.

Before the accident, Dixon worked on a variety of Penrod

rigs for about five years.

We are persuaded that the jury had no basis to find

that Penrod was unreasonable in expecting an experi-

enced rig mechanic to use available tools to safely per-

form the simple task of turning a sump valve without

overexerting himself. We have made it clear that “these

[are] circumstances under which a seaman is under a

duty to exercise ordinary care in selecting or using one

tool over another, say for instance, where the vessel

6a

owner has furnished a number of tools, each being fit

for its particular phase of a multi-phased operation being

performed by the seaman.” Hussein v. Isthmian Lines,

Inc., 405 F.2d 946, 949 (5th Cir. 1968). “When tools

are close at hand which could safely perform a task, a

seaman has a duty to use them.” Robinson v. Zapata

Corp., 664 F.2d 45, 49 (5th Cir. 1981).

Dixon admitted that a number of remedial measures

were available to a rig mechanic if he encountered a

stuck sump valve. When a mechanic cannot turn a valve

without overexerting himself, the witnesses testified that

a mechanic would ordinarily use a “cheater” pipe to in-

crease his leverage. These cheater pipes (pipes with a

larger diameter and length than the tool handle that

slied over the tool handle) are readily available to rig

mechanics. Pipe wrenches are also available on the rig

and can also be used to gain added leverage to turn the

valve handle. In addition to these tools, which Dixon

admitted were readily available, Dixon testified that a

mechanic could obtain assistance from other members of

the rig crew if a valve were difficult to open.

Dixon’s contention that Penrod was unreasonable in

failing to establish a periodic inspection and maintenance

program to insure that the valves would turn readily is

also unsupported by the record. In the corrosive atmos-

phere of the Gulf of Mexico a drilling rig will have many

valves, nuts, bolts, and other connections on its equipment

that will not always turn with ease and may require

added effort. This is particularly true with a valve that

is frequently under water.

Penrod’s reliance on its mechanics to deal with stuck

valves when they encounter them was not unreasonable.

The suggested maintenance program would require Pen-

rod to assign rig mechanics to periodically check all of

the rig’s sump valves (presumably along with nuts,

bolts, and other myriad connections) to be certain that

7a

they are not stuck. However, checking the valves re-

quires the rig mechanics to do precisely what Dixon did

in opening the valve in this case—attempt to turn the

valve handle with a T-tool. In both instances, if the

valve is stuck and the mechanic does not use proper tools,

he may injure himself.

After a careful review of the record, we are unable

to find a single probative fact to support the jury’s find-

ing of negligence on the part of Penrod. The district

court erred in denying Penrod’s motion for judgment

NOV. The judgment of the district court is therefore

REVERSED and RENDERED.

8a

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 87-3296

D. C. Docket No. CA-2719-LLM (5)

JAMES E. DIXON,

Plaintiff-Appellee,

versus

PENROD DRILLING Co.,

Defendant-Appeillant.

Appeal from the United States District Court

for the Eastern District of Louisiana

Before KING and DAVIS, Circuit Judges, FELDMAN,*

District Judge.*

JUDGMENT

This cause came on to be heard on the record on ap-

peal and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now here

ordered and adjudged by this Court that the judgment

of the District Court in this cause is reversed and ren-

dered, and the cause is remanded to the District Court

for further proceedings in accordance with the opinion

of this Court.

IT IS FURTHER ORDERED that plaintiff-appellee

pay to Defendant-appellant the costs on appeal, to be

taxed by the Clerk of this Court.

March 30, 1988

Issued as mandate: May 6, 1988

* District Judge of the Eastern District of Louisiana, OP-JDT-11

sitting by designation.

9a

UNITED STATES DISTRICT COURT

MASTERN DISTRICT OF LOUISIANA

Civil Action No. 86-2719

Section “LLM”

JAMES E. DIXON

versus

PENROD DRILLING COMPANY

JUDGMENT

This action came on for trial before the Court and a

Jury, the Honorable Lansing L. Mitchell, Senior United

States District Judge, presiding, and the issues having

been duly tried and the Jury having duly rendered its

verdict, considering its answers to the Interrogatories

propounded by the Court to the Jury under date of

February 11, 1987.

IT IS ORDERED, ADJUDGED AND DECREED that

there be Judgment rendered herein in favor of plaintiff,

James E. Dixon, and against defendant, Penrod Drilling

Company, in the amount of TWO HUNDRED FIFTY

THOUSAND EIGHT HUNDRED FIFTY-THREE AND

NO/100 ($250,853.00) DOLLARS with legal interest

from date of Judgment and for the recovery of his costs

incurred in the instant action.

New Orleans, Louisiana, this 19th day of February,

1987.

/s/ Lansing L. Mitchell

Senior United States District Judge

iii

10a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

Civil Action No. 86-2719

Section “LLM”

JAMES DIXON

versus

PENROD DRILLING COMPANY

INTERROGATORIES PROPOUNDED TO THE JURY

1. Do you find a preponderance of the evidence that de-

fendant Penrod Drilling Company, was negligent in

the manner claimed by the plaintiff and that such

negligence was a legal cause of the plaintiff’s

damages?

Please answer Yes or No. Yes X No

Please answer Question No. 2.

2. Do you find from a preponderance of the evidence

that Penrod Rig No. 63 was unseaworthy in the man-

ner claimed by the plaintiff and that such unsea-

worthness was a legal cause of plaintiff’s damages?

Please answer Yes or No. Yes No X

If your answers to Questions No. 1 and 2 are No,

do not answer the remaining questions. Please sign

and date the form.

if your answer to Questions No. 1 or 2 is Yes, please

answer Question No. 3.

3. Do you find from a preponderance of the evidence

that the plaintiff was negligent and that such negli-

gence contributed to his injury?

|

lla

Please answer Yes or No. Yes X No

If your answer to Interrogatory No. 3 is “Yes”,

please proceed to Interrogatory No. 4.

If your answer to Interrogatory No. 3 is “No”,

please proceed to Interrogatory No. 5.

. To what extent, expressed as a percentage, did the

negligence of the plaintiff, if any, contribute to his

injuries?

Please answer in terms of percentage. 50 %

. Without deducting any amount for negligence you

may have found on the part of the plaintiff, what

amount if any, do you find would fairly and ade-

quately compensate plaintiff for the following:

A. Past Loss Wages $ 81,138.

B. Loss of Future Earning

Capacity $295,568.

C. Past Physical and Mental

Pain and Suffering $ 30,000.

D. Future Physical and

Mental Pain and Suffering $ 35,000.

E. Permanent Physical

Disability $ 60,000.

Total of 5 A.-E.,

above $501.706.

Please proceed to Question No. 6.

. If you answer “No” to either Interrogatory No. 1 or

Interrogatory No. 2, do not answer the remaining

interrogatory but, instead, please sign and date the

form.

If you answered “Yes” to Interrogatories Nos. 1 and

2, please answer the following question:

12a

Please express as a percentage that amount which

you find from a preponderance of the evidence that

plaintiff’s injury was caused by negligence of Penrod

Drilling Company and that percentage which was

caused by the unseaworthiness of Penrod Rig No. 63.

Negligence —icaacaml

Unseaworthiness ———

New Orleans, Louisiana

This 11 day of February, 1987.

Mark K. Mauer

Foreman or Forelady

f