Clark v. PHI, Inc.
Clark v. PHI, Inc.
Opinion of the Court
OPINION
Plaintiff Ferris Clark claims damages from defendants PHI, Inc. and Allianz Global and Specialty AG, (collectively “PHI”) and defendant Energy XXI GOM, LLC (“Energy XXI”) for alleged negligence leading to personal injury in a helicopter accident on March 24, 2011.
I. Background
At the time of this accident, Plaintiff was an employee of Wood Group Production Services.
Before landing on the MP61A, Kemper requested and received a “green deck” from the platform operator, indicating that he had permission to land.
Winds were light and the helicopter was traveling “light,” i.e. below its maximum flight weight.
At approximately 4:58 P.M., Kemper brought the helicopter to a 3-foot hover above the helipad.
At that moment, approximately 19 seconds after taking off, Kemper and Plaintiff heard a loud bang and felt the helicopter “yaw” or pull its nose to the left — a motion consistent with loss of engine power.
After the helicopter had already hit the water, Kemper pulled the collective back up, causing the main rotor to spin under the helicopter’s fully functional engine.
After taking on water, the engine died, and the rotor blades stopped spinning.
After Plaintiff, Kemper, and the other passenger gathered at the surface, a boat took them to platform 73A for medical treatment.
The next morning, Plaintiff woke up in pain.
For the sleeplessness and mental health issues, Dr. Watson referred Plaintiff to a psychologist, Dr. Anne Henderson.
Dr. Watson referred Plaintiff to an orthopedist, Dr. Patterson, for his neck and back pain.
At early visits with Dr. Lee, Plaintiff complained of numbness and tingling in his hand, in addition to pain in his neck and back.
Investigation into this accident revealed that the loud bang and temporary loss of power that the helicopter experienced during takeoff were the result of a relatively mild compressor stall.
Plaintiff instituted the current action against defendants PHI, Inc., their liability insurer, Allianz Corporate and Global Specialty, Inc., and the helicopter manufacture, Bell Helicopter Textron, Inc. on February 13, 2012.
II. Claims and Defenses
Plaintiff claims against both PHI and Energy XXI under general maritime law for allegedly negligent acts and omissions that caused his neck, back, hand and wrist injuries, as well as his depression, anxiety, and PTSD. He seeks to hold PHI liable for its pilot, Jim Kemper’s, negligence in flying toward the MP61A’s vent boom, failing to properly diagnose and respond to the helicopter’s mid-flight compressor stall, and failing to properly perform an emergency landing.
Plaintiff further seeks damages from Energy XXI’s for its allegedly negligent failure to warn Kemper that the platform was venting unignited gas at or near the time of takeoff, either through the platform operators or with an automated visual warning system installed on the platform.
PHI argues’ that Energy XXI was the lone proximate cause of Plaintiffs injuries, both because Kemper was not negligent in any act or omission on March 24, 2011 and also because Energy XXI’s failure to warn superseded any possible negligence on Kemper’s part.
Energy XXI, in turn, argues that Kem-per’s negligence was the sole proximate cause of the March 24 crash.
In the event that liability is established, both defendants dispute the amount of general damages and medical expenses legally caused by the March 24, 2011 crash.
III. Jurisdiction
The Court has a duty to examine the basis of its subject matter jurisdiction, even when not prompted to do so by the parties in a particular case.
In bringing this cause of action, Plaintiff has invoked this Court’s admiralty/maritime jurisdiction pursuant to 28 U.S.C: § 1333 and Rule 9(h) of the Federal Rules of Civil Procedure.
IV. Standards for Analysis
With the exercise of general maritime jurisdiction comes the application of substantive maritime law.
Whether a defendant owes a plaintiff a legal duty is a question of law.
Negligence is actionable, only if it is the legal cause of an injury to the plaintiff.
V. Analysis
A. PHI’s Liability
PHI is liable for any damages negligently caused by its pilot in the course and scope of his employment under the doctrine of respondeat superior,
1. PHI is liable for Kemper’s decision to fly toward the MP6lA’s vent boom.
Both Energy XXI and Plaintiff argue that Kemper behaved negligently in choosing to fly in the general direction of the MP61A’s compressors and vent booms on March 24, 2011.
Under traditional negligence principles applicable to maritime cases, a helicopter pilot owes his passengers a duty to exercise reasonable care in providing for their safety.
The question facing the Court is whether Kemper’s flight plan exposed Plaintiff to an unreasonably great risk that the helicopter would ingest unignited gases thereby resulting in Plaintiffs injury. An unreasonably great risk is one that a reasonable pilot in Kemper’s position, and with Kemper’s level of training and experience, would have chosen to avoid because it outweighed the utility of the conduct at issue.
Kemper was trained that unignited gas could vent from a platform “at any time,”
In describing his takeoff route, Kemper testified that he passed directly between the platform compressors and the vent boom, equidistant from both.
As explained more fully below, a preponderance of the evidence suggests that this accident was caused by gases vented from the MP61A’s number one compressor automatically shutting down. Because the capacity of the number one compressor is only 13 cubic feet, it can only vent for five to six seconds, creating a “plume” of limited area that dissipates within one to two seconds.
A reasonable pilot would have concluded that this risk outweighed any possible benefit from taking off as Kemper had planned. The only utility gained by Kem-per’s decision to takeoff northbound was
This conclusion is bolstered by HSAC-RP 92-4, which cautions pilots to remain “as far away as practicable from the open end of the vent boom” during takeoff.
The facts and circumstances of this case support that Kemper behaved negligently in attempting to takeoff almost directly toward the vent boom.
£ Plaintiff has not shown that Kemper’s decision to abort takeoff was negligent. PHI is nonetheless liable for damages caused by that decision.
Plaintiff and Energy XXI next argue that Kemper negligently misdiagnosed the engine malfunction that he experienced shortly after takeoff, leading him to overreact and attempt to land the helicopter.
Without question Kemper should have known that he was experiencing a
Emergency landing is the only proper response to total engine failure.
The problem with this advice from Kem-per’s perspective is that he may not have had enough time to reduce power and check his gauges before- he needed to decide whether or not he needed to abort the takeoff. . His stall occurred while the helicopter was in forward flight, with its nose down, traveling at a relatively high rate' of speed and low altitude.
While this conclusion is fatal to a finding of Kemper’s fault for his decision to land, it does not excuse PHI from any liability for damages caused by the landing. PHI is vicariously liable for the sum total of damage within the scope of, and legally caused by, Kemper’s negligent decision to fly toward the vent boom. A reasonable pilot would have foreseen that flying toward the vent boom might necessitate a risky emergency landing, such as this one. As explained below, the fact that Energy XXI vented gas without providing Kemper a direct warning does not break this chain of causation. PHI is therefore liable for any injury resulting from this hastily executed emergency landing.
3. Kemper’s failure to properly “autoro-tate ” was negligent.
Finally, both Plaintiff and Energy XXI have argued that Kemper’s execution of emergency landing procedures fell below the standard of care expected of commercial helicopter pilots because he failed to “roll” the throttle to flight idle during the maneuver.
The emergency landing that Kemper attempted in this case is called “autorotation.”
There are five steps to a proper autoro-tation. First, the pilot lowers the collective to eliminate rotor pitch and power to the engine.
If a pilot fails to roll the throttle, the main rotor will spin at full engine power when the pilot raises the collective.
Kemper has maintained that rolling the throttle to flight idle was not an absolute requirement.
Finally, PHI’s expert, Douglas Stimp-son, attempted to defend Kemper by arguing that no pilot, himself included, would have had time to roll the throttle to flight idle under the circumstances present on March 24, 2011.
Kemper was unquestionably negligent for failing to roll the throttle in this case. PHI is therefore vicariously liable for damages incurred as a result of his failure to do so.
Plaintiff claims that Energy XXI was negligent for failing to warn Kemper, either directly or through an automated warning system, that its platform was venting unignited, compressed gas when the helicopter took off.
The parties have not identified, and the Court has been unable to locate, a body of case law dealing specifically with the duties of a platform owner to its busi- ' ness invitees under general maritime law.
The Fifth Circuit has treated a slip owner like the owner of a vessel for purposes of determining the nature and scope of the slip owner’s duty to warn.
1. Energy XXI had no opportunity to warn Kemper directly that gas was venting.
As previously stated, this accident was eaused by gas that vented when the MP61A’s number one compressor automatically shut down at approximately 5 P.M. Platform personnel have consistently maintained that this compressor shutdown was the source of the gas ingested by Kemper’s helicopter since the initial investigation.
The MP61A has a horn to alert platform operators when platform equipment like the number one compressor automatically shuts down.
As an initial matter, notwithstanding the timing issue, any duty to warn a pilot directly would depend on an operator’s knowledge, actual or constructive, that the pilot was attempting to takeoff during the limited window in which the gas posed a threat.
2. Energy XXI had no duty to install an automated warning system to warn Kemper that gas was venting.
Plaintiff and PHI have also argued that Energy XXI was negligent for failing to install a lighted warning system to warn pilots of imminent venting in the event of automated compressor shutdowns.
The evidence presented belies any notion that warning systems of this kind have been adopted industry-wide. None of the witnesses, in their near-century of combined experience working on oil platforms had ever seen such a warning system installed.
More to the point, Energy XXI only owed a duty to install a rotating red beacon or some other form of visual warning system insofar as it was foreseeable that a pilot would ignore his training and deliberately fly toward the vent boom.
Finally, given that it takes a pilot as much or more time to make it from the helipad to the vent boom as it does for the platform to vent gas after the alarm sounds, a visual warning system would not help pilots on the MP61A avoid danger. On the contrary, as Energy XXI has argued, it would lull pilots into a false sense of security regarding approaching the vent boom, thereby increasing the danger to careless pilots like Kemper. The current policy of forbidding pilots to fly anywhere near the vent boom is clearly preferable and apparently sufficient to prevent accidents, if properly followed.
In light of the foregoing, Energy XXI is not liable to Plaintiff for the commission of any maritime tort. As PHI is the only party liable to Plaintiff for negligence, the Court need not address PHI’s claims of superseding negligence vis-a-vis Energy XXI.
C. Damages
Having determined that liability issues in this case, the Court must determine whether there is a causal nexus between PHI’s negligence and the various injuries noted in Plaintiffs complaint. Plaintiff seeks to recover for past and future mental, cervical, and hand/wrist pain and suffering, medical expenses, and lost wages and income.
1. Psychological Damages
Plaintiff has shown by a preponderance of the evidence that he has suffered and will suffer mental pain and suffering as a result of this accident. He began suffering nightmares, anxiety, and sleeplessness immediately after.
Drs. Henderson and Webb have diagnosed Plaintiff with severe anxiety, mild-to-severe depression, and severe post-traumatic stress disorder.
The Court is satisfied there is a causal link between Plaintiffs psychological condition and this accident. Further, regardless of how others might have reacted to this accident, or have in fact reacted to it, it is clear that Plaintiff was severely traumatized.
The parties have stipulated to an amount for past medical expenses that incorporates his past treatments for this condition.
Under the circumstances, the Court will award $400,000 total in general damages for these psychological injuries, with $350,000 allocated toward past mental pain and suffering and $50,000 allocated toward future mental pain and suffering. While Plaintiff will continue to suffer under the weight of this accident, he appears to have made significant strides through his treatment with Drs. Webb and Henderson. The Court makes this observation both based on the doctors’ testimony and Plaintiffs demeanor and composure as he re-counted this incident at trial.
2. Physical Damages: Cervical Spine ■
Plaintiff has further proven injury to his cervical spine as a result of this accident. He told medical staff on board Energy XXI’s platform about his neck pain immediately after the accident and received a neck brace.
a. Causation of Injury
Dr. Lee attributes these symptoms to herniation at the C3-4 disc, partial collapsing of the C4-5 and C5-6 discs, and a likely strain of Plaintiffs back muscles as he tried to wiggle out of his helicopter restraint.
PHI disputes Dr. Lee’s opinion that the helicopter accident caused or even contributed to any condition observed in Plaintiffs cervical spine, relying on the testimony of its biomechanical engineer and physician, Dr. Robert Banks.
The Court was not impressed with Dr. Banks’s testimony. His previous study of autorotations is not relevant given the flawed nature of the autorotation at issue in this case.
Although Plaintiff fell from his porch fracturing his ankle a month after this accident, the evidence does not support that this contributed to Plaintiffs pain or injury.
Considering the facts of this case, the Court will award general damages in the amount of $200,000, with $175,000 allocated toward past damages and $25,000 allocated toward future' damages. Plaintiff has described his neck pain as more of an ache than a shooting pain.
b. Treatment/Expenses
In the event that causation is satisfied, the parties have stipulated to an amount of past medical expenses that incorporates Plaintiffs cervical spine medication and treatments.
Based on Plaintiffs age, the nature of his condition, and his professed inability to find relief from therapy, exercise, and epidural injections, Dr. Lee recommends that Plaintiff undergo three-level discectomy at C3-4, C4-5 and C5-6 and neck fusion surgery.
Moreover, Dr. Lee’s surgery recommendation was only partially related to pain relief and nerve root decompression. It was also based on the need to relieve pressure from the anterior surface of the spinal cord at C3-4.
S. Physical Damages: Carpal Tunnel
Plaintiff has shown injuries to his hand and wrist as a result of this accident. Days after the accident, Plaintiff felt
After the surgery, Plaintiffs hand became worse; Plaintiff could not zip his pants, button his collar, or text on his mobile phone.
Dr. Stokes has testified that trauma, such as the impact of the helicopter accident on March 24, 2011, can result in carpal tunnel syndrome.
As with Plaintiffs other injuries, the parties have stipulated to the amount of past medical bills incurred as a result of carpal tunnel syndrome.
A Economic Damages
Finally, Plaintiff has proven economic injury as a result of this accident. At the time of his accident, Plaintiff was an A Operator with Wood Group, earning $73,165 per year after taxes and unreim-bursed business expenses.
As a result of this accident, Plaintiff will be psychologically unable to return to off
Dr. Lee believes that Plaintiff will reach maximum medical recovery 90 days after his surgery.
When Plaintiff does return to work, he will, more likely than not, be making minimum wage. As Mr. Meunier noted in his report, the higher paying work that Plaintiff could do given his skills and education is mostly farming, repair, maintenance, construction, and installation work.
Neither of the economic experts has offered an estimate of Plaintiffs lost future earnings in light of his inability to return to work until 90 days after his back surgery.
VI. Conclusion
PHI is solely liable for the psychological, physical, and economic injuries that Plaintiff sustained on March 24, 2011. Those injuries included depression, anxiety, post-
_General Damages_
A. Past Mental Pain and Suffering:_$350,000.00
E.Future Mental Pain and Suffering:_$50,000.00
C. Past Physical Pain and Suffering (Neck, hand, and wrist): $190,000.00
D. Future Physical Pain and Suffering (Neck):_$25,000.00
_Medical Exyenses_
E. Past Medical Expenses:_;_$50,113.48
F. Future Medical Expenses:_$76,690.64
_Economic Damages _
G. Past Lost Earnings:_$131,935.22
H. Future Lost Earnings;_$450,916.90
TOTAL:$1,324,656.24
. (See Rec. Doc. 8 (Amended Complaint).)
. (Trial Tr. vol. 1, 185:11-12, Oct. 28, 2013.)
. (Trial Tr. vol. 1, 185:18-23; Trial Tr. vol. 2, 408:19-25, Oct. 29, 2013.)
. (Trial Tr. vol. 1, 185:24-186:1.)
. (Id. at 188:7-12.)
. (See Trial Tr. vol. 2, 428:9-11.)
. (Trial Tr. vol. 1, 188:23-189:9.)
. (Id.)
.(Id. at 87:15-25.)
. (Id. at 88:10-22.)
. (Id. at 93:18-20, 190:6-12.)
. (Id. at 71:5-9, 110:5-17.)
. (Exs. 9.1, 9.2, & 10. 1.)
. (Trial Tr. vol. 1, 67:23-68:10.)
. (Id. at 68:19-69:13.)
. (Id. at 67:14-22, 75:13-17.)
. (Id. at 71:5-72:13.)
. (Id. at 82:11-12.) •
. (Id. at 82:20-22.)
. (Id. at 82:22-23.)
. (Id. at 55:22-56:3, 159:13-25, 192:1-3, 339:19-340:4.)
. (Id. át 60:5-9.)
. (Id. at 56:2-6, 81:21-82:1.) The collective is a control in the cockpit that increases and decreases the pitch or angle of the rotor blades, causing the helicopter to either rise or fall. (Id. at 56:25-57:3.) It simultaneously increases or decreases the fuel supply to the engine. (Id. at 116:8-117:1.)
. (Id. at 130:22-131:1.)
. (Id. at 122:21-124:13, 285:19-25.)
. (Id. at 129:4-7, 129:13-16.)
. {Id., at 129:17-19, 121:10-122:7.)
. {Id. at 122:2-4, 192:6-8.)
. {Id.)
. (Trial Tr. vol. 2, 529:2-4.)
. (See Trial. Tr. vol. 1, 192:10-11.)
. {Id. at 192:12-13.)
. {Id. at 192:14-17.)
. {Id. át 192:20-193:6.)
. {Id. at 195:10-15, 227:2-9.)
. {Id. at 195:10-15.)
. {Id. at 195:19-24.)
. {Id. at 195:25-196:3.)
. {Id. at 227:10-17.)
. {Id. at 228:7-18.)
. {Id. at 197:17-19.)
. {Id. at 197:22-24.)
. {Id. at 198:1-9.)
. {Id. at 197:20-25, 199:2-6; Ex. 42.4.)
. {Id. at 8:3-4.)
. {Id. at 31:8-15.)
. {Id. at 198:24-29.)
. (Id. at 9:21-10:14, 15:1-7, 34:10-35:17, 42:10-12.)
. (Id. at 10:17-25, 21:10-18.)
. (Id. at 43:2-13, 53:12-24.)
. (Id. at 199:2-6; Ex. 42.4.)
. (Id. at 232:2-7.)
. (Id. at 201:3-5, 232:8-11.)
. (Id. at 202:8-15.)
. (Id.)
. (Dr. David Lee Depo. 34:1-10, Nov. 6, 2013.)
. (Ex. 42.3; Trial Tr. vol. 1, 201:8-13.)
. (Id. at 201:14-16.)
. (Id. at 201:17-20.)
. (Id. at 202:1-4.)
. (Id. at 124:14-16.)
. (Ex. 64.)
. (Rec. Doc. 1.)
. (Rec. Doc. 8.)
. (Rec. Doc. 60, 64.)
. (Rec. Doc. 149 at 2-7.)
. (Id. at 7-9.)
. (Id. at 10.)
. (Rec. Doc. 148 at 8-18.)
. (Rec. Doc. 152 at 33-49.)
. (Id. at 9-26.)
. (Id. at 26-33.)
. (Rec. Doc. 148 at 18-20; Rec. Doc. 149 at 49-62.)
. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980) (citing 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedures 3522 (1975)).
. (Rec. Doc. 1.)
. Hufnagel v. Omega Serv. Indus., Inc., 182 F.3d 340, 351 (5th Cir. 1999) (emphasis in original) (citations omitted); accord Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 271, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972).
. (Among other vessels that navigated near the MP61A, there was a jack-up barge which was pictured in a photograph entered into evidence. Ex. 9.1; Trial Tr. vol. 1, 63:1-6.)
. See Egorov, Puchinsky, Afanasiev & Juring v. Terriberry, Carroll & Yancey, 183 F.3d 453, 456 (5th Cir. 1999) ("In determining whether the tort occurred on navigable water, this court looks to where the alleged wrong took effect rather than to the locus of the allegedly tortious conduct.”) (citing Wiedemann & Fransen APLC v. Hollywood Marine, Inc., 811 F.2d 864 (5th Cir. 1987); Kuehne & Nagel v. Geosource, Inc., 874 F.2d 283, 288-89 (5th Cir. 1989)).
. Smith v. Pan Air Corp., 684 F.2d 1102, 1112 (5th Cir. 1982); Ledoux v. Petroleum Helicopters, Inc., 609 F.2d 824, 824 (5th Cir. 1980) (per curiam).
. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 541, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995).
. East River. S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986).
. Daigle v. Point Landing, Inc., 616 F.2d 825, 827 (5th Cir. 1980).
. Canal Barge Co., Inc. v. Torco Oil Co., 220 F.3d 370, 376 (5th Cir. 2000).
. Florida Fuels, Inc. v. Citgo Petroleum Corp., 6 F.3d 330, 333 (5th Cir. 1993).
. Canal Barge Co., Inc., 220 F.3d at 377.
. In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 211 (5th Cir. 2010).
. In re Signal Int’l, LLC, 579 F.3d 478, 492 (5th Cir. 2009).
. In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d at 213-214 (quoting Donaghey v.
. Id.
. Chisolm v. Sabine Towing & Transp. Co., Inc., 679 F.2d 60, 63 (5th Cir. 1982).
. See Stoot v. D & D Catering Serv., Inc., 807 F.2d 1197, 1199 (5th Cir. 1987) (“The recognized principle of agency law that imposes vicarious liability upon employers for the wrongful acts committed by employees while acting in the course of their employment is well ingrained in the general maritime law.”).
. (Rec. Doc. 149 at 5-6; Rec. Doc. 152 at 33-36.)
. (Id.)
. (Rec. Doc. 148 at 14-15.)
. In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d at 211.
. See In re Dearborn Marine Serv., Inc., 499 F.2d 263, 279.(5th.Cir. 1974) ("actionable negligence may consist of failure to take precautions against foreseeable acts of third persons, and this rule applies though the conduct of the third person is itself negligent.”) (citing Restatement (Second) of Torts § 302).
. Restatement (Second) of Torts §§ 289, 291.
. (Trial Tr. vol. 1, 75:4-6.)
. (Exs. 17.1-17.2, 53.1, 61.4.)
. (Ex. 61.4.)
. (Ex. 53.1) (emphasis in original); {see also Aeronautical Information Manual (AIM), ch. 10-2-lh2, Ex. 58.6) (stating the same).
. (Trial Tr. vol. 1, 83:1-13.)
. (See Exs. 9.1, 9.2, & 10.1; Trial Tr. vol. 1, 62:3-65:1; Trial Tr. vol. 2, 533:21-23.)
. (Trial Tr. vol. 2, 465:25-469:12; see also id. at 446:4-7; Trial Tr. vol. 1, 170:25-171:5.)
. (Trial Tr. vol. 2, 469:11-12.)
. When Kemper was asked whether he thought he was far enough from the vent boom to be safe, he evaded the question, stating that he was not expecting any gas. (Trial Tr. vol. 1, 84:4-9.) The Court draws a negative inference from this response.
. Kemper was. also trained not to come within 13 feet of any hard obstacle. (Trial Tr. vol. 2, at 352:3-5.)
. (Trial Tr. vol. 1, 65:17-22.)
. (Id. at 71:2-9.)
. (See Trial Tr. vol. 1, 72:6-13, 153:4-154:2; Trial Tr. vol. 2, 516:4-7.)
. (PHI, Inc., Pilot Training Manual, Ex. 62.6.)
. (Trial Tr. vol. 2, 515:25-516:15.)
. (Tr.vol.l, 153:4-154:2.)
. (Exs. 53.1, Ex. 58.6.)
. (Ex. 61.4.); Canal Barge Co., 220 F.3d at 377; Johnson v. Pool Co. of Texas, No. 93-4140, 1994 WL 643113 (E.D.La. Nov. 14, 1994).
. (Trial Tr. vol. 1, 83:14-18.)
. (Rec. Doc. 149 at 4; Rec. Doc. 152 at 43.)
. (Trial Tr. vol. 1, 56:2-4, 58:21-25, 104:2-4.) ...
. (Id. at 58:21-59:3.)
. (Rec. Doc. 149 at 4; Rec. Doc. 152 at 44, 46.)
.A reasonable pilot would have been able to tell the difference between a stall and an engine out in an instant. (See Trial Tr. vol. 1, 132:4-8-.) As explained by the experts at trial, a compressor stall and an engine out emergency are different animals. A compressor stall is indicated by a pop or bang, with a spike in torque and perhaps oscillations in some other related instrument readings. (Id. at 133:8-16; Trial Tr. vol. 2, 335:9-19, 522; Ex. 7. 1.) The helicopter experts analogized a stall to the backfiring of a car engine. (Trial Tr. vol. 1, 130:6-15; Trial Tr. vol. 2, 525:2-526:5.) By contrast, an engine out triggers a veritable "Christmas tree” of warning lights. (Id. at 522:10-14.) There is a caution "ENG OUT” light and an audible siren. (Id. at 519:17-25.) Multiple gauges, including rotor RPM, compressor, power turbine, turbine outlet temperature, and torque would drop instantaneously. (Id. at 520:12-522:14.) The rotor RPM drop triggers its own warning light. (Id. at 520:12-18.) The engine failure causes an electrical generator to fail which triggers a third light. (Id. at 520:22-521:1.)
A reasonable pilot could have immediately recognized that Kemper was experiencing a stall from the tell-tale pop and the absence of any significant drop-off in instrument readings. (Ex. 60.69) (listing training in "Simulated Engine Failure” scenarios, "Equipment Examination;” and "System Malfunctions”).
. (Trial Tr. vol. 1, 118:16-17.)
. (Id. at 118:16-17, 135:5-8; Trial Tr. vol. 2, 343:15-18.)
. (Id. at 343:17-18.)
. (Id. at 524:6-16; Trial Tr. vol. 1, 176:2-7.)
. (Id. at 97:1-7161:7-11; Trial Tr.-vol. 2, 340:14-25.)
. (Id.)
. (Id. at 342:16-20; see also Trial Tr. vol. 1, 97:10-16)
. (Trial Tr. vol. 2, 341:21-342:8.)
. (Id. at 342:16-20; see also Trial Tr. vol. 1, 117:8 — 9.)
. (Trial Tr. vol. 2, 285:19-25.)
. (Trial Tr. vol. 1, 176:2-7.)
. {Id. at 132:4-8.)
. {Id. at 163:4-164:2.)
. (Trial Tr. vol. 2, 345:7-346:9.)
. (Rec. Doc. 149 at 2-4; Rec. Doc. 152 at 44-45.)
. (Trial Tr. vol. 1, 56:5-6.)
. {Id. at 117:13-19.)
. (Trial Tr. vol. 2, 347:8-19.)
. (Id. at 117:8-10.)
. {Id. at 117:9-10; Trial Tr. vol. 2, 529:8-12.)
. (Trial Tr. vol. 1, 117:20-24; Trial Tr. vol. 2, 528:2-3.) The meaning of "flare” was not explained during trial.
. (Trial Tr. vol. 1, 118:3-4; Trial Tr. vol. 2, 528:3-4.)
. (Id. at 346:14-19.)
. (Id.)
. (Trial Tr. vol. 1, 118:23-119:3; see also Trial Tr. vol. 2, 357:24-358:2.)
. (Trial Tr. vol. 1, 119:21-23; Trial Tr. vol. 2, 356:23-25, 529:8-17; see also Ex. 60 (training logs).)
. (Trial Tr. vol. 1, 57:16-19, 178:15-19.)
. (Rec. Doc. 148 at 14.)
. (Rec. Doc. 148 at 14; see Trial Tr. vol. 2, 281:21-282:2.)
. This argument was directly contradicted by multiple witnesses. (See Trial Tr. vol. 1, 121; Trial Tr. vol. 2, 346-47, 358, 528-29.)
. (Id. at 357:19-23.) Plaintiff argues that this testimony is irrelevant because Kemper would have made the wrong choice no matter how much time he had. (Rec. Doc. 149 at 3.) While the inability of a reasonable pilot to roll the throttle in the time allotted does not serve to defeat Kemper’s negligence in failing to even attempt to roll the throttle, it fatally undermines causation, in that Kemper would not have had time to roll the throttle, even if he had not unreasonably ruled out the possibility of a stall.
. (Trial Tr. vol. 1, 160:20-23; Ex. 8.7.)
. (Trial Tr. vol. 1, 116:9-10.)
. The reasons for this gap in the extant case law are simple. The Outer Continental Shelf Lands Act (OCSLA) “defines the body of law applicable” to fixed platforms in the outer continental shelf and commands the application of the laws of the adjacent state to claims filed under its auspices. Rodrigue v. Aetna Casualty and Surety Co., 395 U.S. 352, 365-66, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969). Although OCSLA does not displace general maritime law where both could apply, it often governs platform-related tort claims because there is no maritime jurisdiction over injuries that occur on a platform. Hufnagel v. Omega Serv. Indus., Inc., 182 F.3d 340, 350, 351-52 (5th Cir. 1999). Notwithstanding Jerome B. Grubart, supra platforms present an infrequent opportunity for the application of maritime law. Cf. id.
. (Rec. Doc. 148 at 8.)
. See Casaceli v. Martech Intern., Inc., 774 F.2d 1322, 1331 (5th Cir. 1985) (citing Daigle v. Point Landing, Inc., 616 F.2d 825, 827 (5th Cir. 1980)).
. See, e.g., Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 218-19, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986).
. Casaceli, 774 F.2d at 1328-29; accord Kermarec v. Compagnie Generate Transatlantique, 358 U.S. 625, 630, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959) ("It is a. settled principle of maritime law that a shipowner owes the duty of exercising reasonable care towards those lawfully aboard the vessel who are not members of the crew.”); see also Florida Fuels, Inc. v. Citgo Petroleum Corp., 6 F.3d 330, 335 (5th Cir. 1993) (wharfowner owes any business invitee on his property the duty to exercise reasonable care in all the circumstances).
. Casaceli, 774 F.2d at 1329 (citations omitted).
.(Trial Tr. vol. 2, 388-390.)
. (Ex. 14.1.)
. (Trial Tr. vol. 2, 409:7-18, 418:13-18, 427:25-428:5, 449:16-21.)
. {Id. at 380:6-381:1.)
. {Id. at 381:10-22.)
. (Rec. Doc. 148 at 8; Rec. Doc. 149 at 7-8.)
. (Rec. Doc. 152 at 8.)
. Cf. Daigle, 616 F.2d at 828 (finding no duty to warn where ship’s master could not see the plaintiff because master had neither knew nor had reason to suspect that his maneuvering endangered the plaintiff).
. (Trial Tr. vol. 2, 419:19-420:4.)
. (Trial Tr. vol. 1, 88:10-22.)
. {Id. at 93:18-20.)
. {See id. at 169:8-15.)
. (Trial Tr. vol. 2, 381:10-22.)
. (Id. at 511:18-21.)
. Mr. Smith testified that it would take the compressor 5.5 seconds to vent its contents leaving a plume capable of causing a stall for approximately 1 to 2 seconds. (Id. at 467:21— ' 25, 495:6-16.)
. The operators testified from memory that they remembered seeing the helicopter go down approximately 20 seconds after they heard the alarm. (Id. at 423:23-25.)
. (Rec. Doc. 148 at 11; Rec. Doc. 149 at 8-9.)
. (Trial Tr. vol. 2, 427:12-15, 449:10-15, 471:19-472:1.)
. (Id. at 472:2-7.)
. (Exs.53.1, 58.7.)
. (Trial Tr. vol. 2, 446:4-7, 469:3-6.)
. Daigle, 616 F.2d at 827.
. See, e.g., Hite v. Maritime Overseas Corp., 380 F.Supp. 222, 226 & n. 9 (E.D.Tex. 1974) (collecting cases); see also Restatement (Second) of Torts § 343A.
. (Rec. Doc. 149 at 10-26.)
. (Rec. Doc. 148 at 19.)
. (Trial Tr. vol. 1, 198:1-9, 203:8-204:14.)
. (Id. at 42:13-16, 195:25-196:5, 203:8-204:14.)
. (Id. at 204:21-25.)
. (Id. at 204:18-20.)
. (Id. at 12:10-12, 38:11-39:4.)
. (See generally id. at 193-207.)
. (Id. at 9:21-10:16, 15:1-7, 34:10-35:17, 42:10-12.)
. (Id. at 19:19-22, 45:20-46:2.)
. (Id. at 15:10-14, 35:1-6, 42:13-16.)
. (Id. at 207:2-5.)
. (Id. at 207:8-13.) '
. (Id. at 206:9-14.)
. (Id. at 205:17-206:1.)
. (Id. at 53:18-21.)
. (Ex. 40.1.)
. (Id. at 53:18-21.)
. (Id. at 42:2-13.)
. (Id. at 21:10-20, 28:19-29:10.)
. (Ex. 77 at 5.)
. (Trial Tr. vol. 1, 195:10-24.)
. (Id. at 197:17-19.)
. (Id. at 197:21-198:2.)
. (Ex. 42.)
. (Lee Dep. 23:16-24:6, 55:15-20.)
. (Trial. Tr. vol.l, 202:8-203:1.)
. {Id. at 202:16-19.)
. (Lee Dep. 50:12-22, 78:2-79:1.)
. (Lee Dep. 10:25-11:16, 15:6-16, 47:15-48:4, 50:12-51:15, 55:15-18.)
. {Id. at 20:7-21:1.)
. {Id. at 66:24-67:4.)
. {Id.)
. (Rec. Doc. 148 at 19.)
. {Id. at 310:21-311:3, 316:25-317:3.)
. {Id. at 293:24-294:2.)
. {Id. at 346:3-9.)
. {Id. at 318:5-319:3.)
. {Id. at 296:6-7.)
. {Id. at 325:20-22.)
. {Id. at 295:22-296:1.)
. (Trial Tr. vol.l, 200:2-25.)
. {See, e.g., id. at 195:10-24; Ex. 42.)
. (Lee Dep. 56:18-57:8.)
. (Ex. 42.1.)
. (See Lee Dep. 69:6-11, 71:3-11.)
. (See Ex. 40.)
. (Id. at 34:3-20, 35:4-17, 67:22-68:1.)
. (Trial Tr. vol. 1, 260:4-61:14.)
. (Lee Dep. 49:4-24.)
. (Lee Dep. 20:7-21:1, 61:18-62:9.)
. (Id. at 68:18-24.)
. (Lee Dep. 68:6-13.)
. (See id. at 20:11-21:1, 22:15-23:3.)
. (See id. 47:21-48:4) ("I think the helicopter crash is why he’s going to have the surgery.”).
. (See Lee Dep. 39:2-14; Ex. 77.)
. (Ex. 42.3.)
. (Trial Tr. 201:8-13; Lee Dep. 9:16-20.)
. {Id. at 201:8-16; see also Lee Dep. 28:14-20.)
. (Ex. 33; Dr. Harold Stokes Dep. 10, Oct. 21, 2013.)
. (Trial Tr. vol. 1, 201:17-19.)
. {Id. at 201:20-25.)
. (Stokes Dep. 11:16-12:22, 13:1-3.)
. {Id. at 12:23-25, 17:16-21.)
. (Trial Tr. vol. 1, 202:3-4, 231:10-14; Stokes Dep. 19:8-20.)
. {Id. at 19:21-23.)
. {Id. at 19:24-20:4.)
. {Id. at 184:2-5.)
. {See Ex. 40.)
. {See Stokes Dep. 19:12-16) (describing discharge of Plaintiff from care).
. (Ex. 78 at 7); see Culver v. Slater Boat Co., 722 F.2d 114, 117 (5th Cir. 1983) ("a fact-finder should subtract amounts the wage earner would have been required to pay, such as income tax and work expenses” from a calculation of lost income).
. (Trial Tr. vol. 1, 19:25-20:22.)
. {Id. at 35:18-23.)
. {Id. at 45:1-11.)
. (Ex. 42.4.)
. (Lee Dep. 41:6-12.)
. (Ex. 78 at 8.)
. {Id. at 41:22-42:1.)
. {Id. at 42:12-22.)
. {Id. at 43:16-25.)
. (Trial Tr. vol. 1, 208:18-19.)
. (Ex. 71 at 4-5; see also Ex. 77 at 7-8.) This is not to say that there are no higher paying jobs that Plaintiff could do. However, given the rarity of these jobs, it appears more likely than not that Plaintiff will actually have an entry level job paying at or near the minimum wage.
. (Lee Dep. 44:9-45:17.)
. {See Exs. 72, 78.)
. (Ex. 78 at 13.)
Reference
- Full Case Name
- Ferris CLARK Sr. v. PHI, INC., Bell Helicopter Textron Inc. and Allianz Global Corporate & Specialty AG
- Cited By
- 1 case
- Status
- Published