     Case: 09-40381     Document: 00511019077          Page: 1    Date Filed: 02/02/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          February 2, 2010

                                       No. 09-40381                    Charles R. Fulbruge III
                                                                               Clerk

ORLANDO RAMIREZ,

                                                   Plaintiff – Appellant
v.

AMERICAN POLLUTION CONTROL CORPORATION; M/V AMPOL
RECOVERY,

                                                   Defendants – Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 3:06-CV-00796


Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
        In this Jones Act case, Orlando Ramirez was awarded $1,800 in lost wages
for an injury he sustained aboard the M/V AMPOL RECOVERY. He appeals the
district court’s apportionment of fault to him for his own injuries based on
contributory negligence. For the following reasons, we affirm.




        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                  No. 09-40381

                        FACTS AND PROCEEDINGS
      American Pollution Control Corporation (AMPOL) hired Orlando Ramirez
to work as a deckhand aboard the RECOVERY in 2006. Shortly thereafter,
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. At a bench trial, the
evidence showed that just prior to the injury, the crew had been unloading
groceries in the galley, which resulted in a floor cluttered with cardboard boxes.
Several minutes before he fell, Ramirez had removed a wet rubber glove and
thrown it toward the trash. The glove landed not in the trash but on the floor
instead. Captain Tony Galindo noticed the glove on the floor, but did not notify
Ramirez. Ramirez retrieved a juice container and a glass of juice from the
refrigerator, then attempted to navigate the box-strewn galley with his hands
full. He stepped on the top flap of an open box and slipped on the wet glove,
which had been concealed from view beneath the flap.           At trial, 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 sixty percent liable and Ramirez forty
percent liable for his injury. AMPOL’s liability was based on Galindo’s failure
to pick up the fallen glove, or to instruct Ramirez to do so.          Ramirez’s
contributory negligence was for tossing his glove toward the trash can,
attempting to step through the boxes with his hands full, and misrepresenting
his past injuries on the job application.
      In calculating damages, the district court credited AMPOL’s expert’s
testimony that Ramirez’s continuing neck and shoulder pain were not caused by
the accident, but were instead due to the natural aging process. It also adopted
that expert’s conclusion that Ramirez could have returned to work five weeks
after the accident. Based on a daily wage of $120 at the time of the injury, the
court calculated lost wages at $3,000.      It further found that non-economic

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damages were not warranted. Reducing the lost wages award by Ramirez’s
proportionate fault, the court entered judgment in his favor in the amount of
$1,800.
        Ramirez appealed, solely contesting the apportionment of fault. He first
argues that AMPOL was solely responsible for the condition which caused the
accident.    Second, he argues that there was no causal link between his
undisclosed medical history and the injury he suffered aboard the RECOVERY.
                           STANDARD OF REVIEW
        “We review a district court’s finding of negligence and apportionment of
fault for clear error.” Jauch v. Nautical Servs., Inc., 470 F.3d 207, 213 (5th Cir.
2006). “The clear error standard precludes reversal of a district court’s findings
unless we are ‘left with the definite and firm conviction that a mistake has been
committed.’” Id. (quoting Anderson v. City of Bessemer, 470 U.S. 564, 573 (1985)).
“We entertain a strong presumption that the court’s findings must be sustained
even though this court might have weighed the evidence differently.” Johnson
v. Cenac Towing, Inc., 544 F.3d 296, 303 (5th Cir. 2008).
                                 DISCUSSION
A.      AMPOL’s Responsibility for Unsafe Conditions
        Ramirez contends that AMPOL alone was responsible for creating the
conditions which led to the accident.       He recites evidence from the record
showing that Galindo’s failure to notify him about the wet glove created a safety
hazard and that the box-strewn condition of the galley was attributable to
Galindo. The district court held that Galindo’s failure to notify Ramirez about
the glove was negligent, and for that reason, it found AMPOL sixty percent at
fault. Critically, Ramirez does not contest the finding below that he himself was
negligent to have thrown the glove and to have attempted to navigate the galley




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with his hands full. Nothing in Ramirez’s present argument persuades us that
this apportionment of fault was clearly erroneous.1
B.      Ramirez’s Misrepresentations in His Job Application
        Ramirez contests the district court’s finding that he was negligent for
misrepresenting his medical history on the job application. He argues that this
finding is clearly erroneous because the nondisclosure of previous ailments was
not shown to have caused the injury he suffered. The district court found that
Ramirez had sustained neck or back injuries in 1979, 1986, 2002, 2003, and
2004. He received treatment for the 2002 and 2004 injuries. None of these
injuries was disclosed in response to questions on the job application inquiring
whether the applicant had prior neck or back injuries or had prior accidents.
Ramirez admitted at trial that his negative responses on the application were
untrue. AMPOL’s corporate witness, Clayton Humphrey, testified that he would
have terminated Ramirez if he knew about the false responses. Humphrey
further testified that if Ramirez had responded truthfully, he likely would not
have been hired. He testified that, at a minimum, he would have referred
Ramirez for further medical evaluation, including x-rays.
        This court has recognized the propriety of holding a seaman plaintiff
contributorily negligent when he “has concealed material information about a
pre-existing injury or physical condition from his employer; exposes his body to
a risk of reinjury or aggravation of the condition; and then suffers reinjury or
aggravation injury.”      Johnson, 544 F.3d at 303-04; see also Savoie v. Otto
Candies, Inc., 692 F.2d 363, 372 (5th Cir. 1982) (“Where a seaman knowingly
exposes himself to conditions of employment while aware of an illness or


        1
         Ramirez also contends that AMPOL’s corporate witness conceded Galindo’s sole
responsibility for the accident. A review of the trial transcript, however, shows that this
alleged “concession” was made in response to a hypothetical question during cross-
examination, and was preceded and followed by the witness’s testimony that Galindo was only
partially responsible. There was no concession of sole responsibility.

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disability which makes those conditions unsafe to him, or where a seaman has
the possibility of securing relief from unsafe conditions by informing his
superiors of them, but continues to work without doing so, he may be found to
be contributorily negligent.”).
      The three Johnson elements are met here.           First, the district court
expressly found that Ramirez concealed his past injuries. Second, though the
court did not specify what type of injury Ramirez suffered, the record indicates
that it was to his neck and back. He therefore suffered reinjury or aggravation
injury. Finally, the record testimony supports the conclusion that Ramirez
exposed his body to a risk of reinjury or aggravation. Humphrey described the
duties of a deckhand, which include loading and unloading supplies in a vessel’s
tight and cluttered areas. Meanwhile, AMPOL’s marine expert, David Scruton,
testified that a box-strewn galley constitutes an evident potential hazard which
requires the exercise of extraordinary caution.       By exposing himself to the
hazardous conditions present in the galley, Ramirez “set himself up for the sort
of aggravating injury found by the district court.” Johnson, 544 F.3d at 303.
Ramirez’s misrepresentation of his prior medical history, coupled with his
participation in hazardous employment conditions, constituted a legal cause of
reinjury and was properly found to be contributory negligence.          Ramirez’s
argument on appeal is inadequate to overcome the “strong presumption that the
[district] court’s findings must be sustained.” Id.
                                  CONCLUSION
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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