[B]Case Name: [/B][I]Tracy Commings v Mike Hooks Inc.
[/I][B]Date Decided: [/B]September 14, 2009
[B]Court: [/B]United States Court of Appeals, Fifth Circuit
[B]Judge: [/B]Judge DeMoss, Judge Prado
[B]Citation: [/B]2009 WL 2921665 (C.A.5(La.)[B]Background:
[/B]Plaintiff, Tracy Commings (“Commings”), was employed by Mike Hooks Inc (“MHI”) a dredging operation engaged by the United States Army Corps of Engineers (“USACE”) to dredge a channel in Mississippi
While dredging, pontoons drifted away from the worksite and beached in shallow waters at a nearby island. Commings, along with other employees, boarded an 18-foot skiff to retrieve the pontoons. Commings would maneuver the skiff as close as possible to the pontoons then Commings was to enter the water, swim or walk to the pontoons, and attach a line.
However, Commings dove head first into the shallow water, severely injuring his neck and back and immediately treated at a local hospital.
A neurosurgeon diagnosed him with a compression fracture and Commings underwent surgery.
Commings filed suit for negligence under general maritime and the Jones Act and subsequently moved for partial summary judgment in an attempt to prevent MHI from asserting a contributory negligence defense on the grounds that his injury was caused in part by MHI’s violation of an Occupation Safety and Health Administration (“OSHA”) regulation.
The district court, denied the motion and during a bench trial found Cooming’s testimony regarding the accident to be unreliable. The Court found that Commings’s supervisors warned about diving headfirst into the water.
Furthermore the district court found Commings contributorily negligent and assigned a mere 10% of liability to MHI. The Court awarded Commings $18k for lost wages and $200k for pain and suffering.
[/B]Did the lower court err in holding Commings 90% at fault for his injury and apportioning damages accordingly?
[/B]Commings asserts, that under the Federal Employers’ Liability Act, which bars the defense of contributory negligence where the plaintiff’s injury was cause, [I]at least in part[/I], by the employer’s violation of any statute enacted for the safety of employees. Moreover, FELA applies to railroads but its substantive provisions are incorporated into the Jones Act.
Commings argued that MHI cannot assert contributory negligence because MHI, by not providing a ladder for him to exit the skiff, violated an OSHA regulation requiring employers to provide a stairway or ladder at certain points of access for personel.
This Court held however, that the applicable OSHA regulation does not apply and therefore did not need to consider whether the OSHA violation can ever bar an assertion of contributory negligence. The regulation Commings points to applies to every employee [I]engaged in construction work.[/I]
This Court found that the OSHA regulation did not apply to Comming’s situation and therefore, did not apply to bar a contributory negligence defense.
Rather, Commings was hired as a deckhand and was retrieving a pontoon when he was injured and did not present any convincing reason for this Court to find his activities constituted “construction work” under the regulation.
Accordingly this Court affirmed the lower court’s finding of contributory negligence.
The Jones Act incorporates substantive provisions of FELA including the bar to a the contributory negligence by the employer if the employer is found to violate an OSHA regulation made for the safety of employees. [/B]