     Case: 16-30572      Document: 00514271275         Page: 1    Date Filed: 12/13/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                    No. 16-30572
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                      December 13, 2017
                                                                           Lyle W. Cayce
DANNY MCCADNEY,                                                                 Clerk


                                                 Plaintiff-Appellant

v.

LOUIS HAMILTON, Sergeant,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:13-CV-824


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Danny McCadney, Louisiana prisoner # 129302, filed a complaint in the
district court alleging that he suffered head, neck, and shoulder injuries when
Sergeant Louis Hamilton kicked his cell door shut and he was caught in the
door. The case was tried before a jury, which found that Hamilton had not
violated McCadney’s constitutional rights but that he was negligent. The jury
found that McCadney had sustained $5,000 in damages and was 45 percent at


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-30572

fault. After the district court’s judgment was amended to correct a clerical
error, McCadney moved to amend the amended judgment, complaining that
the damage award was inadequate. At a hearing on the motion, McCadney
contended also that it was error to include comparative fault on the jury verdict
form and that the verdict was inconsistent. The motion was denied. McCadney
gave timely notice of his appeal from the amended judgment and from the order
denying the motion to amend the judgment.
      Because the motion to amend the judgment was filed within 28 days of
entry of the amended judgment, we have regarded it as a motion under Federal
Rule of Civil Procedure 59(e). Amendment of a judgment under Rule 59(e) is
appropriate to correct a manifest error of law or fact. Demahy v. Schwarz
Pharma, Inc., 702 F.3d 177, 182 n.2 (5th Cir. 2012). Our review is for an abuse
of discretion. See Tyler v. Union Oil Co. of Calif., 304 F.3d 379, 405 (5th Cir.
2002). McCadney’s timely notice of appeal from the order denying the motion
brings up the amended judgment for review. See Martinez v. Johnson, 104
F.3d 769, 771 (5th Cir. 1997).
      McCadney contends that Hamilton waived the affirmative defense of
comparative fault by failing to assert it in his answer or pretrial order. He
asserts that the district court erred by instructing the jury to apportion
comparative fault and that its interrogatory addressing comparative fault was
confusing and resulted in an inconsistent jury verdict and an inadequate
damage award.
      “Under Louisiana Civil Code article 2323, juries are asked to allocate
fault among the parties responsible for [a] plaintiff’s injury.” Ellis v. Weasler
Eng’g Inc., 258 F.3d 326, 344 (5th Cir.), opinion amended on other grounds on
denial of reh’g, 274 F.3d 881 (5th Cir. 2001). Fault is attributed where (1) one’s
actions fall below the standard of care for a reasonable person under the



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                                 No. 16-30572

circumstances, and (2) one’s substandard conduct caused injury. Id.; see also
Kelley v. Price-Macemon, Inc., 992 F.2d 1408, 1415 n.11 (5th Cir. 1993);
Comparative fault is an affirmative defense. Otillio v. Entergy La., Inc., 836
So. 2d 293, 295 (La. Ct. App. 2002); see also Lucas v. United States, 807 F.2d
414, 417 (5th Cir. 1986) (question whether a legal theory is an affirmative
defense is determined by state law).
      Under Rule 8, affirmative defenses are to be pleaded in a defendant’s
answer. FED. R. CIV. P. 8(b)(1)(A) & (c)(1) (listing contributory negligence as
an affirmative defense that must be pleaded). “Where the matter is raised in
the trial court in a manner that does not result in unfair surprise, however,
technical failure to comply precisely with Rule 8(c) is not fatal.” Allied Chem.
Corp. v. Mackay, 695 F.2d 854, 855-56 (5th Cir. 1983). The district court’s
determination that a plaintiff has not been unfairly surprised or prejudiced by
a defendant’s untimely assertion of an affirmative defense is reviewed for an
abuse of discretion. See LSREF2 Baron, L.L.C. v. Tauch, 751 F.3d 394, 401-02
(5th Cir. 2014). McCadney did not contend in the district court, and he does
not contend on appeal, that he was unfairly surprised by Hamilton’s assertion
of the defense of comparative fault. His contention, rather, is that the defense
was waived and was inconsistent with Hamilton’s general denial. We have
reviewed the record and conclude that it supports the district court’s reasoning
that McCadney was aware that his comparative fault was an issue in the case.
The evidence was sufficient to support the district court’s decision to give the
instruction. No abuse of discretion has been shown. See id.
      In arguing that the jury’s damage award was grossly inadequate and
should be modified, McCadney complains that the verdict was inconsistent, in
that the jury found that Hamilton was negligent but assessed only nominal
damages. There was evidence, however, from which the jury could have found



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that McCadney’s injuries had other causes. McCadney has not shown that the
jury’s finding involved a manifest error of fact or that the district court abused
its discretion in denying the Rule 59(e) motion challenging the quantum of
damages. See Demahy, 702 F.3d at 182 n.2; Tyler, 304 F.3d at 405.
      The amended judgment and the order denying the Rule 59(e) motion are
AFFIRMED.




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