Orlando Ramirezv. American Pollution COntrol Corporation; M/V Ampol Recovery


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[B]Case Name: [/B]Orlando Ramirez v. American Pollution Control Corporation; M/V Ampol Recovery
[B]Date Decided: [/B]February 2, 2010
[B]Court: [/B]*United States Court of Appeals, Fifth Circuit
[B]Judge: [/B]Judge Garza, Judge DeMoss, Judge Clement
[B]Citation: [/B]2010 WL 444407 (C.A.5(Tex.)[B]Background:
[/B]Plaintiff, Orlando Ramirez, brought this action against employer and vessel owner American Pollution Control Corporation, AMPOL, pursuant to the Jones Act.

AMPOL hired Ramirez to work as a deckhand aboard the Recovery and shortly after, Ramirez hurt his neck, back, shoulder, elbow, and wrist when he slipped on a wet rubber glove lying on the floor of the ship’s galley.

Evidence introduced at trial showed that the crew had just finished unloading groceries in the galley resulting in a floor cluttered with cardboard boxes. Several minutes before he fell, Ramirez had removed a wet rubber glove and thrown it in the trash.

The glove missed the trash and ended up on the floor; the Captain noticed the glove on the floor but failed to notify Ramirez. Ramirez opened the fridge and then tried to walk through the cluttered galley with his hands full.

Ramirez then slipped on his wet glove and Ramirez fell, hurting himself. Ramirez admitted to a significant history of neck and back injuries that he had omitted from the AMPOL job application.

The district court found AMPOL 60% liable for his injury, based on the Captain’s failure to pick the glove up. Ramirez was found contributorily negligent for tossing his glove towards the trash can, attempting to step through the boxes with his hands full and misrepresenting his past injuries on the job application.

In determining damages, the District Court credited AMPOL’s expert testimony that Ramire continuing neck and shoulder pain were caused by the natural aging process. The court calculated lost wages at $3,000, and therefore upon apportionment, awarded Ramirez with $1,800.

Ramirez appealed contesting the apportionment of fault arguing that AMPOL was solely responsible for the condition which caused the accident and also argued there was no casual link between his undisclosed medical history and injury suffered aboard the Recovery.

[B]Issue:
[/B]Did the District Court err in finding Ramirez contributory negligent and for finding a link between his undisclosed medical history and injury he suffered aboard the Recovery?

[B]Held:
[/B]Ramirez contended that AMPOL was solely responsible for creating the conditions which led to the accident. Ramirez pointed to evidence establishing that the Captain failed to notify him about the wet glove and therefore, created a safety hazard and that the cluttered condition of the galley was attributable to the Captain.

This Court found nothing to indicate the District Court erred in apportioning fault. Therefore, this Court affirmed the District Court’s apportionment of fault.

Second, Ramirez contested the district court’s finding that he was negligent in misrepresenting his medical history on the job application. Ramirez argued that the nondisclosure of his ailments did [I]not cause the injury he suffered[/I] as a result of the fall.

The District Court found that Ramirez had sustained neck or back injuries on 5 separate occasions ranging from 1979 - 2004. None of these were disclosed by Ramirez. This Court found that this was enough for the District Court to conclude that Ramirez’s injuries after the fall, were in large part, a reaggravation of his previous injuries.

Accordingly, this Court affirmed the ruling of the District Court.

[B]Comment:
Where a seaman knowingly exposes himself to conditions of employment, while aware of an illness or disability, which makes those conditions unsafe to him may be found contributory negligent. [/B]

[B]Steve Gordon [/B]

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