Revised July 19, 1999

                 UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT



                             No. 97-31294



JOHN P. FONTENOT, individually and as natural tutor, on behalf of
Ashley Nicole Fontenot, Wanda Renee Fontenot, and John Parish
Fontenot, Jr.,

                                                 Plaintiff-Appellee,


                                VERSUS


                   DUAL DRILLING CO., ET AL.,

                                                          Defendants,


                     ENSCO PLATFORM COMPANY,
                                                 Defendant-Appellant.




          Appeal from the United States District Court
              For the Western District of Louisiana
                             July 2, 1999
Before DeMOSS, PARKER and DENNIS, Circuit Judges.
PARKER, Circuit Judge:

     Defendant-Appellant ENSCO Platform Company (“ENSCO”) appeals

the judgment for Plaintiff, John P. Fontenot (“Fontenot”) in this

personal injury action.    We reverse and remand.

                               I. FACTS

                                   1
       Plaintiff Fontenot began employment with Weatherford-Enterra,

Inc. (“Weatherford”) in 1994.          Fontenot is borderline mentally

handicapped with an IQ of approximately 70.           Fontenot’s wife died

in October 1995, after which he was assigned to work onshore to

allow him to tend to his three minor children and personal affairs.

Five   months   later,   Weatherford       assigned   Fontenot     to   a   crew

conducting casing operations on a stationary platform on the Outer

Continental Shelf offshore Louisiana.              Fontenot was part of a

“pick-up crew,” referring to the fact that most of the crew members

had    not   worked   with   each    other    on   prior    jobs   and,     more

specifically, Fontenot was not a regular member of the crew.

       Weatherford’s crew was hired to run casing from the offshore

platform into the hole of a well.          Each joint of casing had to be

filled with drilling “mud.”         Fontenot was assigned the job of mud

valve operator. He was to instruct the driller, an ENSCO employee,

when each joint of casing was full of drilling mud so that the

driller could turn off the flow of mud into the joint.

       Initially, the mudline and pump that were being used did not

require the active participation of Fontenot.              Then Weatherford’s

supervisor, Leo Meche (“Meche”), requested that ENSCO change the

pump and line to speed up the process of filling casing with mud.

The line and pump were changed, and the new line included a valve

on the end of the mudline with a handle that could open and close

the valve.    Meche instructed Fontenot and other persons on the rig

not to close the mudline valve at any time while the mud pump was

                                       2
running because it was dangerous to do so in light of the extreme

pressure that could build up quickly in the line.           Despite these

instructions, Fontenot closed the mudline valve.           Pressure built

up, then was suddenly released, hurling Fontenot up into the

derrick, badly injuring one of his fingers.

                    II. DISTRICT COURT PROCEEDINGS

     On January 27, 1997, Fontenot, individually and on behalf of

his three minor children, brought suit against ENSCO, alleging that

he was injured due to the negligence of ENSCO.            ENSCO answered,

denying liability and affirmatively alleging comparative fault by

Fontenot   and   “other   parties.”       Subsequently,   Weatherford   and

Weatherford’s workers' compensation insurer filed a Complaint of

Intervention seeking to enforce their rights of subrogation to

recover amounts paid to or on behalf of Fontenot.

     The case proceeded to a jury trial on September 15, 1997.          The

jury returned its verdict, finding Fontenot 25% at fault, ENSCO 75%

at fault, and awarded total damages of $1,190,000 against ENSCO.

The court entered judgment consistent with that verdict on October

3, 1997.   ENSCO filed a motion for new trial, which was denied.

ENSCO appealed.

                             III. ANALYSIS

A. QUANTIFYING FAULT

1. District court ruling and standards of review

     ENSCO contended at trial that, pursuant to Louisiana tort law,


                                      3
the    Jury     Verdict   Form     should        direct     the    jury    to    quantify

Plaintiff’s       employer’s      fault.          See     LA.   CIV.    CODE    ANN.   art.

2323(A)(West 1997).            The district court denied the request.

       First,    the   trial     court   held      that     the    Louisiana      rule    of

comparative fault which requires quantification of employer fault

is    “inconsistent”      with     other        federal     law,    specifically         the

Longshore and Harbor Workers Compensation Act, 33 U.S.C. §§ 901-950

(“LHWCA”), thereby precluding application of comparative fault to

this case, pursuant to the Outer Continental Shelf Lands Act

(“OCSLA”).       The district court articulated two alternative bases

for its denial of ENSCO’s request to have the jury quantify

employer fault: one, the evidence would not support a jury finding

that Weatherford had any responsibility for Fontenot’s accident

and, two, ENSCO’s request was not timely filed.                        We consider each

ruling in turn.

       ENSCO's challenge to the district court’s holding that state

and federal law are inconsistent raises a question of law, which we

review de novo.        See Reeves v. AcroMed Corp., 

, 445

(5th Cir. 1997).       Likewise, we review de novo the district court’s

ruling that the evidence was insufficient to go to the jury on this

issue.    See FED. R. CIV. P. 50.                We review the district court’s

decision that the request was untimely for abuse of discretion.

See Emmons v. Southern Pacific Transp. Co., 

(5th Cir.

1983).


                                            4
2.    Is Louisiana law inconsistent with LHWCA?

       ENSCO points out that LHWCA is silent on the question of

quantification of employer fault and that no other federal law is

inconsistent with Louisiana tort law. Fontenot, on the other hand,

agrees with the district court, taking the position that LHWCA sets

out a “loss allocation scheme” based on the rule of joint and

several liability which is inconsistent with quantification of

employer fault.

       The OCSLA provides that when an employee is injured while on

the   Outer    Continental   Shelf     exploring   for    natural    resources,

compensation shall be payable under the provisions of the LHWCA.

See 43 U.S.C. § 1333(b).        The OCSLA also provides:

       To the extent that they are applicable and not
       inconsistent with this subchapter or with other Federal
       laws and regulations . . . the civil and criminal laws of
       each adjacent State . . . are hereby declared to be the
       law of the United States for that portion of the . . .
       Outer Continental Shelf, and artificial islands and fixed
       structures erected thereon[.]

43 U.S.C. § 1333(a)(2)(A).

       Under LHWCA, which is similar to other worker compensation

schemes, an employer's liability to an employee who is injured on

the job is essentially limited to payment of compensation.                See 33

U.S.C. § 905(a).     The LHWCA also allows the employee to recover for

injuries resulting from the fault of third parties.                See 33 U.S.C.

§    933(a).   The   employee   need    not   choose     whether    to   receive

compensation or to recover damages against a third person; he can


                                        5
do both.    See 

receiving compensation can operate

as an assignment to the employer of the employee's cause of action

against third parties.            See 33 U.S.C. § 933(b).         However, the

employee has the exclusive right to bring the cause of action

against the third party for six months after the incident.               See 

injured employee recovers from a third party, the

fund recovered is charged first for the cost of the recovery,

including attorney fees, next for reimbursement of the compensation

paid by the employer and finally, any additional recovery is paid

to the injured employee.          See 33 U.S.C. § 933(f).         If the amount

due as LHWCA compensation is more than the amount recovered against

the third party, the employer remains liable to pay the difference.

See 

must give consent for any settlement between

an employee and a third party which is less than the total amount

of   compensation     owed   in    order   for   the   employee    to   continue

receiving compensation.       See 33 U.S.C. § 933(g).

      Typically, when the employee files suit against a third party,

the employer will intervene to recover the amount of compensation

paid, just as Weatherford did in this case.               However, as ENSCO

emphasizes, the LHWCA is silent on the issue of quantification of

employer fault.

      Louisiana Civil Code, art. 2323, as amended in April 1996 as

a part of a package of tort reform by the Louisiana legislature,

provides, in pertinent part:


                                       6
     In any action for damages where a person suffers injury,
     death, or loss, the degree or percentage of fault of all
     persons causing or contributing to the injury, death, or
     loss shall be determined, regardless of whether the
     person is a party to the action or a nonparty, and
     regardless of the person's insolvency, ability to pay,
     immunity by statute, including but not limited to the
     provisions of R.S. 23:1032, or that the other person's
     identity is not known or reasonably ascertainable.

LA. CIV. CODE ANN. art. 2323(A).

     Art. 2323(A) requires the fact finder to apportion fault among

all negligent parties regardless of whether the plaintiff can

recover from a particular party or not.            Once the fact finder makes

the apportionment, such fault shall not be reallocated to any other

party. See LA. REV. STAT. ANN. 23:1104 (West Supp. 1998)              Therefore,

fault must be attributed to a negligent employer even though the

employer      is   immune   from   suit    under    the   Louisiana    Workers'

Compensation Statute, LA. REV. STAT. ANN. 32:1023.          See 

v. U. S. Fidelity & Guar. Co., 

(La. 1997), the

Louisiana Supreme Court held that the amendments of art. 2323(A)

requiring the quantification of fault of all tortfeasors were

procedural and therefore should be retroactively applied to torts

occurring prior to the effective date of the amendments, April 16,

1996.       Consequently, the fact that Fontenot's injury occurred on

April 8, 1996, does not preclude the application of art. 2323(A) to

this case.1        Thus, ENSCO argues that Weatherford's percentage of


        1
      However, we note that the Louisiana Supreme Court has held
that the 1996 amendment to art. 2324(B) is substantive and
therefore applies prospectively only.   See Aucoin v. DOTD, 712

                                       7
negligence should have been determined by the jury and allocated

accordingly, reducing the proportion of ENSCO's liability.

      The LHWCA contains no express language addressing the subjects

of allocation of fault or proportionate liability. Fontenot, while

recognizing the absence of any express conflict, nevertheless

concludes that LHWCA’s scheme allocating the costs of accident

injuries is inconsistent with Louisiana’s scheme of comparative

fault, relying upon Peters v. North River Ins. Co. of Morristown,

N.J., 

, 309-10 (5th Cir. 1985).              In our view, Peters is

factually      and   legally      distinguishable       and   is    therefore      not

controlling.

      First,     the     Louisiana       statute   at    issue      in   this   case

(§ 2323(A)), which requires the determination of the percentage of

fault of all tortfeasors, had not been passed by the Louisiana

Legislature     when     Peters    was    decided.      Second,     there    was    no

contention from any party in Peters that the employer was at fault

in any way for the injuries which Peters received.                  The sole issue

in   Peters    was     whether    the    injured   worker     and   a    third-party

tortfeasor could deprive the employer of his statutory lien on the

settlement proceeds by not notifying the employer of the settlement

or by providing in the settlement agreement that the third-party

tortfeasor would otherwise satisfy the employer’s claim.                    Finally,

Fontenot did not settle with the third-party tortfeasor, as Peters


So.2d 62, 67 (La. 1998).

                                           8
did with the third party in his case; instead, there was a trial on

the merits of Fontenot’s claim against ENSCO in which the employer

and its compensation underwriter intervened to assert their lien

upon any judgment proceeds to the extent of sums paid to Fontenot

as compensation benefits.

     Next, we must consider whether § 905, the substantive LHWCA

third-party practice provision, applies to this case.   We conclude

that it does not; it applies only when the third party is a vessel,

and there is no vessel involved in this case.       That provision

reads, in pertinent part, as follows:

          Negligence of vessel

               In the event of injury to a person covered
          under [LHWCA] caused by the negligence of a vessel,
          then such person, or anyone otherwise entitled to
          recover damages by reason thereof, may bring an
          action against such vessel as a third party in
          accordance with the provisions of section 933 of
          this title, and the employer shall not be liable to
          the vessel for such damages directly or indirectly
          and any agreements or warranties to the contrary
          shall be void. * * *

33 U.S.C. § 905(b) (emphasis added).

     The portion of § 905 which is most relevant is § 905(c), which

reads:

          Outer Continental Shelf

               In the event that the negligence of a vessel
          causes injury to a person entitled to receive
          benefits under this chapter by virtue of section
          1333 of Title 43, then such person, or anyone
          otherwise entitled to recover damages by reason
          thereof, may bring an action against such vessel in
          accordance with the provisions of subsection (b) of

                                 9
          this section. Nothing contained in subsection (b)
          of this section shall preclude the enforcement
          according to its terms of any reciprocal indemnity
          provision whereby the employer of a person entitled
          to receive benefits under this chapter by virtue of
          section 1333 of Title 43 and the vessel agree to
          defend and indemnify the other for cost of defense
          and loss or liability for damages arising out of or
          resulting from death or bodily injury to their
          employees.

(Emphasis added.)   In this case, Fontenot is "a person entitled to

receive benefits under this chapter [LHWCA] by virtue of section

1333 of Title 43 [OCSLA]."     It is explicit, therefore, that the

only third party cause of action contemplated by subsection (c) is

the one for "negligence of a vessel" which is to be brought in

accordance with subsection (b).

     The term "vessel" is defined in § 902(21) as follows:

          (21) Unless the context requires otherwise, the
          term "vessel" means any vessel upon which or in
          connection with which any person entitled to
          benefits under this chapter suffers injury or death
          arising out of or in the course of his employment,
          and said vessel’s owner, owner pro hac vice, agent,
          operator, charter or bare boat charterer, master,
          officer, or crew member.

(Emphasis added.)   There is no person or entity which meets this

definition in this case, and there is clearly no vessel of any kind

involved, much less one upon which any injury occurred.      To the

contrary, Fontenot was injured during the course of drilling

activities on an oil and gas well located on a fixed platform on

the outer continental shelf.   The Supreme Court has expressly held

that such activities are not maritime in nature.        See Herb’s


                                  10
Welding, Inc. v. Gray, 

, 421-25 (1985).              Therefore,

neither § 905(b) nor § 905(c) has any applicability to Fontenot’s

accident.

     This distinction as to whether the third party against whom

liability is sought is a vessel or is a non-maritime entity is not

mere semantics. Our Circuit has consistently used this distinction

to reach different results in the context of third party actions

brought   by   LHWCA    employees.     For    example,   the    doctrine   of

contributory negligence under state law as a bar to recovery has

been applied to actions against non-maritime defendants under

OCSLA, whereas the maritime rule of comparative negligence has been

applied to vessel defendants.        See Bertrand v. Shell Oil Co., 

(5th Cir. 1973); In re Dearborn Marine Serv., Inc., 

(5th Cir. 1974).       As provided in § 905(c), non-maritime

third   parties   are   not   prohibited     from   obtaining   contractual

indemnifications from LHWCA employers, whereas vessel owners are

prohibited from doing so by § 905(b).        Tran v. Manatowoc Eng’g Co.,

(5th Cir. 1985); Pippen v. Shell Oil Co., 

(5th Cir. 1981).   Likewise, while the 1972 amendments to LHWCA did

away with the strict liability doctrine of unseaworthiness as to

vessel owners, this amendment did not prevent application of the

Louisiana articles on strict liability to non-maritime defendants

under Louisiana law.       See Olsen v. Shell Oil Co., 

(5th Cir. 1979).


                                     11
     The other LHWCA provision relevant to third-party claims is

§ 933.   Those parts of § 933 which pertain to an employee’s legal

action against a responsible third party provide:

          Compensation for injuries where third persons are
          liable

          (a) Election of remedies

               If on account of a disability or death for
          which compensation is payable under this chapter
          the person entitled to such compensation determines
          that some person other than the employer or a
          person or persons in his employ is liable in
          damages, he need not elect whether to receive such
          compensation or to recover damages against such
          third person.

                               * * *

          (f) Institution of proceedings by person entitled
          to compensation

               If the person entitled to compensation
          institutes proceedings within the period prescribed
          in subsection (b) of this section the employer
          shall be required to pay as compensation under this
          chapter a sum equal to the excess of the amount
          which the Secretary determines is payable on
          account of such injury or death over the net amount
          recovered against such third person.      Such net
          amount shall be equal to the actual amount
          recovered less the expenses reasonably incurred by
          such person in respect to such proceedings
          (including reasonable attorneys’ fees).

                               * * *

          (i) Right to compensation as exclusive remedy

               The right to compensation or benefits under
          this chapter shall be the exclusive remedy to an
          employee when he is injured, or to his eligible
          survivors or legal representatives if he is killed,
          by the negligence or wrong of any other person or
          persons in the same employ: Provided, That this


                                12
          provision shall not affect the liability of a
          person other than an officer or employee of the
          employer.

33 U.S.C. § 933.2

     These two statutory provisions, §§ 905 and 933, accomplish two

separate things. Section 905 vests employees covered by LHWCA with

a federal third-party cause of action against a vessel based on

negligence.    “The first sentence [of § 905(b)] addresses the

recurring situation . . . where the party injured by the negligence

of the vessel is a longshoreman employed by a stevedoring concern.”

Edmonds   v. Compagnie Generale Transatlantique, 

, 263

(1979).   That common tripartite situation addressed in Edmonds is

not present in this case.   There is no vessel in this case; there

is no vessel owner in this case; there is no stevedore in this

case; and the injured worker was not engaged in any activities

related to loading or unloading a vessel at the time of his injury.

     Section 933 establishes procedures by which third-party claims

are to be prosecuted in the context of a predicate LHWCA claim.

Any such third-party claim, unless it is a § 905(b) or (c) claim

against a vessel, must be based on some external authority.    See

Garvin v. Alumax of S.C., Inc., 

, 917 (4th Cir. 1986).


     2
          Other provisions       of § 933 address, inter alia,
circumstances in which the employer may pursue an action against
the responsible third party (as the assignee of the injured
employee’s rights against the third party), see 33 U.S.C. § 933(b),
(d) & (e), or in which the employee may enter into a settlement
with the responsible third party, see 33 U.S.C. § 933(g). These
statutory provisions are not implicated by the facts of this case.

                                13
In this case, because the third party tortfeasor was not a vessel,

the external authority is the statutory law of the State of

Louisiana, which imposes tort liability on a third party tortfeasor

proven to be concurrently negligent.                 In fact, the Louisiana

statute, § 2323, was itself applied to Fontenot’s claim against

ENSCO in that it is the source of the allocation of fault between

Fontenot and ENSCO and the elimination of the common law rule of

contributory negligence as a bar to a plaintiff’s recovery.

     Obviously, it is not inconsistent with OCSLA or LHWCA for

Louisiana    to   impose    third-party       liability;       §    933    expressly

contemplates such an external law. If the scope of the third-party

liability, as well as defenses to it, are established by state law,

state law governs the question of whether a proportionate-liability

rule applies.     Cf. Ferri v. Ackerman, 

, 198 (1979)

(“[W]hen state law creates a cause of action, the State is free to

define the    defenses     to    that    claim,    including       the    defense   of

immunity, unless, of course, the state law is in conflict with

federal   law.”   (citing       U.S.    Const.    Art.   VI,   cl.       2)).   More

importantly, however, the proportionate-liability scheme imposed by

Louisiana law cannot be inconsistent with federal law because there

would be no third-party cause of action in this case had Louisiana

not provided one.    Edmonds is not to the contrary because that case

dealt with the federal third-party cause of action created by

§ 905(b) involving a vessel.


                                         14
     In Rodrigue v. Aetna Casualty & Surety Company, 

(1969), the Supreme Court discussed in detail the legislative

history underlying the enactment of OCSLA.                 Rodrigue involved two

deaths   occurring    on    fixed     offshore       platforms     on     the    Outer

Continental Shelf.     The question was whether Louisiana tort law or

the Death on the High Seas Act, 46 U.S.C. § 761 et seq. ("DOHSA"),

with its limitations on recoverable damages, would apply.                       A panel

of our Circuit had held that DOHSA applied.                     The Supreme Court

reversed and held that DOHSA did not apply to the platform-related

deaths   because   Congress,     in   OCSLA,       deliberately     rejected       the

application   of     admiralty      and        maritime    principles     to     fixed

platforms.     Therefore,      Louisiana         tort     law   applies    on    fixed

platforms located on the Outer Continental Shelf.                   See 

, 89 S. Ct. at 1842.

     In reviewing the legislative history of OCSLA, the Rodrigue

Court noted that there was some initial support in Congress for the

application of maritime law to fixed platforms located on the Outer

Continental Shelf.         Ultimately, however, Congress rejected the

notion that maritime principles should apply on fixed platforms

located on the Outer Continental Shelf:

           [T]he admiralty action under [DOHSA] no more
           applies to these accidents actually occurring on
           the islands than it would to accidents occurring in
           an upland federal enclave or on a natural island to
           which   admiralty   jurisdiction   had   not   been
           specifically extended.

395 U.S. at 

.

                                          15
      Two years after Rodrigue, the Supreme Court again considered

the application of Louisiana law in connection with an accident

arising on a fixed platform on the Outer Continental Shelf.                  In

Chevron Oil Co. v. Huson, 

(1971), the issue was whether

Louisiana’s one year prescriptive period would apply rather than

the admiralty doctrine of laches.                 A panel of our Circuit held

that, despite the holding in Rodrigue rejecting maritime law, the

laches doctrine was applicable as a matter of "federal common law."

The Supreme Court rejected this notion, stating:

             As we pointed out in Rodrigue, Congress recognized
             that The Federal Code was never designed to be a
             complete body of law in and of itself and thus that
             a comprehensive body of state law was needed.
             Congress also recognized that the special relation-
             ship between the men working on these artificial
             islands and the adjacent shore to which they
             commute favored application of state law with which
             these men and their attorneys would be familiar.
             If Congress’ goal was to provide a comprehensive
             and familiar body of law, it would defeat that goal
             to apply only certain aspects of a state personal
             injury remedy in federal court.       A state time
             limitation upon a remedy is coordinated with the
             substance of a remedy and is no less applicable
             under 

,   92   S.   Ct.    at   353-54   (citations   omitted,

emphasis supplied).         The Supreme Court rejected our Circuit’s

attempt to apply laches as a matter of "federal common law" because

the approach "subverts the congressional intent documented in

Rodrigue . . . that admiralty doctrines should not apply under the

Lands 

, 92 S. Ct. at 354 (emphasis supplied).

In concluding its discussion regarding why Louisiana’s prescription

                                        16
statute   would   apply   over   the    purported   "federal   common   law"

doctrine of laches, the Court stated:

           Congress specifically rejected national uniformity
           and specifically provided for the application of
           state remedies which demand state, not federal,
           statutes of limitation. Thus, Congress made clear
           provision for filling in the "gaps" in federal law;
           it did not intend that federal courts fill in those
           "gaps" themselves by creating new federal common
           law.

, 92 S. Ct. at 354.

     Following the lead of the Supreme Court in Rodrigue and

Huson, our Circuit has consistently rejected attempts of litigants

to have "federal common law" override rules of Louisiana tort law

in actions arising on fixed platforms on the Outer Continental

Shelf.    See, e.g., Marcel v. Placid Oil Co., 

, 570-71

(5th Cir. 1994) (adopting Louisiana’s rule on use of "pre-tax"

wages in computing damages for wages and lost earning capacity);

Olsen v. Shell Oil Co., 

, 983 (5th Cir. 1983) (adopting

the Louisiana rule on inflation).

     This Court has expressly noted that "the substantive right to

recover against third parties is, of course, generally determined

by law independent of the LHWCA."           

.    That

the LHWCA itself does not provide the rule of decision in actions

against third parties is further highlighted by this Court’s

decision in Olsen v. Shell Oil Co., 

(5th Cir. 1983).

In discussing the LHWCA employer’s independent action against a

third party tortfeasor, this Court recognized that the foundation

                                       17
of the claim was based on the underlying law governing the claim

(maritime law or state law) and was not based on the provisions of

the LHWCA itself.     See 

       Thus, we noted, in Federal

Marine Terminals, Inc. v. Burnside Shipping Co., 

, 416-

17, 420 n. 23 (1969), the Court indicated that the stevedore’s

right of indemnity, if available, would be under federal maritime

law. In the context of the OCSLA, we recognized that the insurer’s

remedy was under surrogate state law.” Olsen, 

n. 3

(citations omitted).

     In sum, OCSLA requires that we apply Louisiana law to the

extent that it is consistent with applicable federal law (i.e.,

LHWCA).   To   the   extent   that   LHWCA    addresses   the   problem   of

allocating fault to a third-party tortfeasor, its provisions are

limited by their terms to situations involving the negligence of a

third-party vessel.    No vessel is involved in this case, thus the

LHWCA third-party fault scheme is inapplicable, and we are left

with the Louisiana law which imposes third-party liability and its

rule of comparative fault as the governing law.           Under Louisiana

law, ENSCO was entitled to appropriate jury interrogatories to

implement this rule and the district court erred by failing to so

charge the jury.

     3. Sufficiency of the Evidence on Employer Fault

     ENSCO next contends that, contrary to the district court’s

ruling, there was sufficient evidence in the record to support a


                                     18
jury finding that Fontenot’s employer, Weatherford, was at least

partially responsible for the accident.     We agree.

     In order to hold an employee negligent, the reasonableness of

his conduct must be assessed vis a vis the conduct of his employer,

using the following criteria: (1) relative knowledge of the danger

by the supervising employee and the injured employee; (2) relative

control over the employee’s situation; (3) the degree to which the

employee’s conduct is voluntary; (4) alternatives available to the

employee; (5) obviousness of the danger; and (6) relative ability

to eliminate the danger.   See Bridgewater v. State Through Dept. of

Corrections, 

(La. 1983).      There was evidence that

Weatherford knew of Fontenot’s mental limitations and personal

distractions, as well as the strengths and weaknesses of the other

members of the pick up crew.          Further, it was Weatherford’s

supervisor, Meche, who made the decision to change from the slower,

but safer mudline and pump to the line and pump that exploded,

causing Fontenot’s injuries.   Further a jury could have found that

Weatherford, through Meche, required Fontenot to remain in his

position despite his repeated closing of the valve.     Based on the

record before this court, the district court erred in determining

that the evidence was insufficient for the jury to consider whether

Weatherford bore some responsibility for the accident.

     4. Timeliness of ENSCO’s Request

     In addition to the foregoing reasons for not allowing the jury


                                 19
to quantify Fontenot’s employer’s fault, the district court stated:

“The request was filed late, past the deadline.”        On examining the

pleadings, we note that ENSCO asserted the defense of third-party

fault in its answer and again in the Joint Pre-Trial Stipulations,

although it is not entirely clear that the third party referred to

in these early pleadings was Weatherford. On Friday, September 12,

1997, prior to the beginning of trial on Monday, September 15,

1997, ENSCO objected to the Jury Interrogatories submitted by

Plaintiff and submitted its own Jury Interrogatories, specifically

requesting that Weatherford’s fault be quantified.          The district

court’s scheduling order set a deadline of September 5, 1997 for

submission of jury instructions and interrogatories. We are called

on to decide whether the district court abused its discretion in

refusing ENSCO’s jury interrogatories, filed prior to trial, but

one week beyond the deadline set by the scheduling order, on the

basis that they were untimely filed.            We conclude that such a

decision   would   have   been   an     abuse   of   discretion   in   the

circumstances of this case.      Further, it is not at all clear from

the district court’s language that, in the absence of the other

factors which the court considered in reaching its decision, the

late filing alone would have been sufficient to convince the

district court to deny ENSCO’s requested jury instructions.

5. Error in jury interrogatories requires reversal and remand

     Because we have determined that the three bases articulated by



                                   20
the   district   court      for   refusing   ENSCO’s    request   for   jury

interrogatories quantifying employer fault do not support that

decision, we conclude that the denial was error. We therefore must

reverse and remand this case for further proceedings. However, one

other issues raised on appeal may recur on remand.             We therefore

address it as well.

B. UNIT OF TIME ARGUMENT

      ENSCO contends that the district court’s failure to give the

jury a cautionary instruction regarding Fontenot’s “unit of time”

argument was error.      “Jury verdicts on damages may be overturned

only upon a clear showing of excessiveness or upon a showing that

they were influenced by passion or prejudice.”                 Westbrook v.

General Tire and Rubber Co., 

, 1241 (5th Cir. 1985).

However,   if    we   are    persuaded     that   the   jury   charge   “was

substantially flawed and resulted in prejudicial error,” we will

reverse.   Colburn v. Bunge Towing, Inc., 

, 376 (5th

Cir. 1989).

      Over ENSCO’s objection, Fontenot made the following “unit of

time” argument in closing:

      [H]ow about $2 an hour? $2 an hour for the physical pain
      and suffering, the mental anguish, the scarring and
      disfigurement, the permanent loss of the use of his hand,
      $2 an hour for the rest of his life. $16 for half a day,
      $32 a day. The figures I came up with were $125,000 for
      physical pain and suffering.        For mental anguish,
      $75,000. . . . And for the disability, the fact that he
      has to walk around for the rest of his life with his hand
      in the way that it is, $280,000.


                                      21
     In 

, this court reversed a jury

verdict based on the district court’s failure to give a cautionary

instruction to counter the prejudicial effects of the “unit of

time” argument made by plaintiff’s counsel, reasoning:

     Without a specific cautionary instruction, there is a
     danger that this argument will create an illusion in the
     jury’s mind that pain and suffering damages can and
     perhaps should properly be measured or calculated by
     simple multiplication rather than through the jury’s
     sound discretion.

(citing Baron Tube Co. v. Transport Ins. Co., 

, 865 (5th Cir. 1966)(en banc)).          The Colburn court noted that

the “blanket cautionary instruction given in this case that 'any

statements, objections, or arguments made by lawyers are not

evidence in this case' inadequately addresses” the Court’s concern

with the use of “unit of time” argument.           

court’s rulings in Baron Tube and Colburn, the

district   court’s   failure   to    give    the   instruction   was   error.

Fontenot   does   not   dispute     that    this   circuit’s   jurisprudence

requires a specific cautionary jury instruction when plaintiff

makes a “unit of time” argument.            However, he argues that ENSCO

invited the error.      Fontenot included the necessary instruction in

the Joint Jury Charges that were submitted by the parties pursuant

to the district court’s pretrial order.             ENSCO objected both in

writing and orally to the “unit of time analysis that was in the

joint jury interrogatory.”          The court sustained the objection,

saying, “I am not going to give that section....”

                                      22
     The next day, just prior to closing argument, Fontenot’s

attorney asked the court to clarify whether its ruling precluded

him from making the “unit of time” argument.           The court responded

that Fontenot could argue whatever he wanted to argue, but that the

cautionary instruction on “unit of time” would not be included in

the jury charge. ENSCO interjected that it was reversible error to

allow the argument without the cautionary instruction.           The court

persisted in its position, denied the cautionary instruction and

allowed the argument.    Although ENSCO’s objection and the court’s

ruling indicate that there was some confusion on this issue, we

conclude ENSCO did not invite the error. ENSCO’s position at trial

was clearly that it wished to preclude the “unit of time” argument,

but that if the argument was allowed, the cautionary instruction

was necessary.

     In short, the district court erred in denying ENSCO’s request

for a cautionary jury instruction on this issue.          However, because

our ruling on the quantification-of-employer-fault issue mandates

reversal, we need not reach the question of whether the failure to

give the instruction may have been harmless error.

                             IV. CONCLUSION

     For   the   foregoing   reasons,   we   reverse    the   judgment   for

Fontenot and remand this action to the district court for further

proceedings consistent with this opinion.

     REVERSED and REMANDED.



                                   23