Graham v. Ensco Offshore Co

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
August 24, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-60899
Summary Calendar
JEREMY C. GRAHAM,
Plaintiff-Appellee,
versus
ENSCO OFFSHORE COMPANY,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 2:03-CV-526
--------------------
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
This Jones Act claim stems from an injury suffered by the
plaintiff on an offshore drilling platform in the Gulf of Mexico.
The plaintiff was shocked as a result of touching a crane which was
struck by lightning, and he prevailed in his suit in the district
court based on a violation of a duty to provide a safe workplace.
The district court found that Ensco failed to shut down its
platform and take safety precautions in the face of a concentrated
series of lightning strikes from 9:45 to 10:30 in the morning

-- 1 of 2 --

No. 05-60899
-2-
preceding the strike on the crane. The court found that the strike
on the crane occurred between 10:30 and 10:40 that morning. The
court based this finding on a report produced by a lightning
research expert who charted the strikes in the area based on data
collected by sensors from a national detection network.
The appellant alleges that this finding of fact was clearly
erroneous. See Gavagan v. United States, 955 F.2d 1016, 1019 (5th
Cir. 1992). The appellant argues that the evidence shows that the
strike occurred at 11:00, as a single strike without warning. It
bases this claim on evidence that the incident reports produced
immediately after the accident noted it as occurring at 11:00 and
that employees testified that they did not see any lightning
strikes prior to the hit on the crane. The district court chose to
credit the sensor data presented to it as opposed to testimony of
the employees or the time recorded in the incident report. The
employee recollections could be incorrect and the accident report
could conceivably reflect a time after the actual strike, such as
when the plaintiff actually reported the shock. The finding that
the lightning strike occurred earlier was supported by substantial
evidence and was not contradicted by the great preponderance of the
evidence. Mumblow v. Monroe Broadcasting, Inc., 401 F.3d 616, 622
(5th Cir. 2005). As such, the finding that the sensor data was more
credible was not clearly erroneous. We therefore AFFIRM.

-- 2 of 2 --