IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-30166
Summary Calendar
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KEVIN GUILBEAUX,
Plaintiff-Appellant,
versus
WILRIG USA, INC.,
Defendant-Appellee.
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Appeal from the United States District Court for the
Western District of Louisiana
(94-CV-234)
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September 12, 1996
Before GARWOOD, JOLLY, and DENNIS, Circuit Judges.
PER CURIAM:*
In this Jones Act negligence case, Kevin Guilbeaux alleges
that he injured his foot with a "waterblaster" (a high pressure
sprayer used to chip paint), while working for Wilrig (USA), Inc.
On appeal, Guilbeaux contends that the trial court abused its
discretion when (1) it found that Guilbeaux was 85 percent at fault
in causing the injury to his foot, and (2) it determined that
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
Guilbeaux was not entitled to any damages for loss of future
earning capacity. We find no error in the district court's
decision, and therefore affirm.
I
This case was tried before the district court, sitting without
a jury. The court found that Guilbeaux, a roustabout on a vessel
owned and operated by Wilrig, sustained an injury to his foot when
he allowed a jet of high pressure water from the waterblaster to
hit his foot as he was trying to take the slack out of a hose that
had allegedly wound around something on the deck. The district
court found that Guilbeaux had sustained $227,908 in damages. It
further found that the accident was caused by the combined
negligence of Wilrig (the employer) and Guilbeaux, and assigned 85
percent of the fault to Guilbeaux, and 15 percent to Wilrig.1
1
The district court dismissed Guilbeaux's claims against the
manufacturer of the waterblaster, Allwaste Oilfield Services Inc.,
holding that Guilbeaux had only presented "speculative reasons as
to why they should be held liable in this particular case."
Although Guilbeaux's notice of appeal states generally that he
appeals "from the judgement entered in this action," he does not
brief the dismissal of Allwaste as an issue on appeal. We
therefore consider only the district court's decisions to apportion
fault between Guilbeaux and Wilrig, and to deny future damages.
See Fed.R.App.P. 28(a)(5) ("The argument must contain the
contentions of the appellant on the issues presented, and the
reasons therefor"); see also Patterson v. P.H.P. Healthcare Corp.,
No. 95-319, slip op. at 4838 n.3 (5th Cir. July 25, 1996) (refusing
to consider propriety of district court's order concerning issues
not raised on appeal).
-2-
In our review of the district court's determination of
negligence in this admiralty action we may not set aside the
findings of fact, including damage awards, unless they are clearly
erroneous. Nichols v. Petroleum Helicopters, Inc., 17 F.3d 119,
121 (5th Cir. 1994); Graham v. Milky Way Barge, Inc., 824 F.2d 376,
388, reh'g denied, 832 F.2d 1264 (5th Cir. 1987). "Mere
disagreement with the district court's analysis of the record is
insufficient, and we will not reverse unless `although there is
evidence to support it, the reviewing court on the entire evidence
is left with a definite and firm conviction that a mistake has been
committed.'" Graham, 824 F.2d at 388 (citing United States v.
United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92
L.Ed. 746 (1948), reh'g denied, 333 U.S. 869, 68 S.Ct. 788, 92
L.Ed. 1147). "No greater scope of review is exercised by the
appellate tribunals in admiralty cases than they exercise under
Rule 52(a) of the Federal Rules of Civil Procedure." Trautman v.
Buck Steber, Inc., 693 F.2d 440, 442 (5th Cir. 1982) (citing
McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 7, 99
L.Ed. 20 (1954). Under Rule 52(a), "Findings of fact, whether
based on oral or documentary evidence, shall not be set aside
unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge of the credibility of the
witnesses." Fed.R.Civ.P. 52(a).
-3-
We have reviewed the proceedings below, and find no clear
error in the district court's apportionment of fault in this case.
The record amply supports the district court's conclusion that
Guilbeaux was responsible for 85 percent of the fault in this case.
Although the district court held that Wilrig should have done more
to explain the danger of the waterblaster, its conclusions that
"there is a great deal of fault on the part of Mr. Guilbeaux in not
at least using two hands which would have prevented this accident,"
and that Guilbeaux "could have prevented this accident [by] simply
being a little more cautious," are not clearly erroneous, and
support the district court's apportionment of fault between the
parties. Likewise, there is ample support in the record for the
district court's conclusion that Guilbeaux was not entitled to any
damages for loss of future earning capacity. The district court
properly placed great emphasis on the testimony of Guilbeaux's own
doctor--the only doctor to testify--who testified that Guilbeaux's
disability was slight, and that Guilbeaux could return to the type
of work he was performing before his injury. His decision not to
grant any award for future wage loss or impairment was not clearly
erroneous.
II
In the light of the foregoing, the judgment of the district
court is therefore
-4-
A F F I R M E D.
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