Take the Fifth

Designated for publication

• Knight v. Kirby Offshore Marine Pacific, LLC, 19-30756, appeal from E.D. La.
  • Barksdale, J. (Barksdale, Elrod, Ho); Ho., J., concurring; Elrod, J., dissenting; Jones Act, contributory negligence
  • Affirming in part and vacating in part district court judgment that defendant employer was negligent for vessel captain ordering seaman plaintiff to replace stern line in unfavorable weather conditions and that plaintiff was contributorily negligent for placing line near him and stepping on it while changing the line and assigning equal fault to each party, and remanding for further proceedings.
  • Judge Barksdale held that the Fifth Circuit’s 1974 statement in Williams v. Brasea, Inc., 497 F.2d 67, that “a seaman may not be contributorily negligent for carrying out orders that result in his own injury, even if he recognizes possible danger,” was dictum, because that case arose from an injury to a supervisor, rather than a seaman, such that it’s pronouncement as seamen was not necessary to the opinion. He then held that it did not represent the law, because it “undeniably modifies the rule in Jones Act negligence claims that ‘contributory negligence is an affirmative defense that diminishes recovery in proportion to the seaman’s fault.'” He then held that 5th Circuit precedent distinguished, in any event, between a captain’s specific orders and general orders, allowing contributory negligence where a captain only generally ordered a task without providing specific details as to how the order should be carried out. “[A] rule barring contributory negligence for all orders would make ‘automatons of seamen’ and abrogate the principle that a seaman must perform his tasks with ordinary prudence.” Judge Barksdale found the order given to the plaintiff in this case to be a general order, such that it didn’t trigger even the dictum from Williams.
  • Judge Barksdale then found that the district court did not clearly err in finding the seaman to be negligent in failing to move and then stepping on the discarded stern line. However, he also found there was no evidence that the seaman was imprudent in how he placed the discarded stern line on the deck and that, “[i]n the absence of any evidence, the court’s finding of 50% negligence on the basis, in part, of Knight’s placement of the chafed stern line is clearly erroneous.”
  • Judge Barksdale then found there was no clear error in the district court’s award of $60,000 in general damages related to the seaman’s ankle injury.
  • Judge Ho concurred in the judgment, opining that it was not necessary for Judge Barksdale to find the statement in Williams to be dictum, since Williams was distinguishable on the general vs. specific order basis. Because of this narrower basis, this “concurring” opinion actually presents the rule of the Court from this case.
  • Judge Elrod dissented, finding that the Williams rule was not dictum, and that it was not distinguishable, such that the seaman’s award should not have been offset by contributory negligence. She notes that, because two judges on the panel agree that Williams does not present dictum, both this case and the rule of orderliness show that Williams is still good law. Judge Elrod found that Williams was not restricted to specific orders, and that, even if it were, the order here should be deemed a specific order because the seaman was given an order to perform a specific task at a specific time. Judge Elrod also would have reversed the district court’s award of only $60,000 in general damages. “General damages are available ‘for pain and suffering and impact on one’s normal life routines.’ Barto v. Shore Constr., L.L.C., 801 F.3d 465, 473 (5th Cir. 2015). As a result of his injury, Knight needed to undergo three reconstructive surgeries (which included the insertion of screws) and to attend approximately 100 physical therapy sessions. His doctor assigned him 14% foot-and-ankle impairment, 10% lower-extremity impairment, and 4% whole-person impairment.” Accordingly, Judge Elrod opined that the limitation of the seaman’s general damages award was clear error.

Unpublished

• U.S. v. Mun, 20-10031, appeal from N.D. Tex.
  • per curiam (Owen, King, Engelhardt), criminal, restitution
  • Affirming district court’s order, on conviction of maintaining a drug-involved premises, of restitution in the form of paying for victims’ funeral and cremation expenses.

• FFGGP, Inc. v. Specialized Loan Servicing, LLC, 20-10378, appeal from N.D. Tex.
  • per curiam (Owen, King, Engelhardt), substitution
  • Affirming district court’s summary judgment finding that defendant, who had been assigned a mortgage held by Bank of America while a foreclosure action brought by Bank of America was pending in state court, could be the beneficiary of a positive judgment in that state foreclosure action even without being formally substituted in place of Bank of America.

• U.S. v. Toribio-Mendoza, 20-50387, appeal from W.D. Tex.
  • per curiam (Jolly, Elrod, Graves), criminal, sentencing, supervised release
  • Granting summary affirmance of district court’s sentence for illegal reentry and of revocation of supervised release.

• U.S. v. Bustamante-Muniz, 20-50536, appeal from W.D. Tex.
  • per curiam (Jolly, Elrod, Graves), criminal, sentencing
  • Granting summary affirmance of district court’s sentence for illegal reentry and application of recidivism sentencing enhancement.

• U.S. v. Jose-Baltazar, 20-50540, appeal from W.D. Tex.
  • per curiam (Haynes, Willett, Ho), criminal, sentencing
  • Granting summary affirmance of district court’s sentence for illegal reentry and application of recidivism sentencing enhancement.

• Diez v. Google, Inc., 20-50940, appeal from W.D. Tex.
  • per curiam (King, Smith, Wilson), deceptive trade practices
  • Affirming dismissal of plaintiff’s suit under the Texas Deceptive Trade Practices Act against Google for allowing search results to child pornography, on the basis that he was not a “consumer” because he did not lease or purchase goods or services from Google.

• Bedford v. American Honda Motor Company, Inc., 20-60214, appeal from N.D. Miss.
  • Higginson, J. (Clement, Higginson, Engelhardt), waiver
  • Affirming district court’s summary judgment against asbestos-related products liability plaintiff, rejecting argument that district court should have applied the Lohrmann test where plaintiff did not raise that argument at the district court until a post-summary judgment motion to reconsider.