Opinion
Civil Action No. V-01-2907 (DGT)
July 21, 2003
MEMORANDUM ORDER
Paintiff, Anne Sigel, brings this negligence claim against defendants the United States, Operation Sail, Inc. ("OpSail"), and the Intrepid Sea, Air, Space Museum ("Intrepid Museum") for personal injuries suffered when a large brass object fell on Sigel while she was on board an Italian naval vessel berthed at a dock beside the Intrepid Museum. Defendants OpSail and the Intrepid Museum filed a motion for summary judgment under Federal Rule of Civil Procedure 56, contending that Sigel cannot maintain a negligence claim against either defendant.
Plaintiff originally brought her action against the Republic of Italy, not the United States. By order dated December 20, 2002, the United States' unopposed motion to intervene in this case as party defendant pursuant to Rule 24(b) was granted. Accordingly, the United States was substituted for the Republic of Italy pursuant to Rule 25(c), and the Republic of Italy was dismissed from this case. The Republic of Italy's pending motion to dismiss for lack of jurisdiction is, therefore, rendered moot.
The caption incorrectly identifies this defendant in the plural as Operation Sails, Inc.
Background (1)
Between July 3-9, 2000, a series of events celebrating Independence Day and the millennium took place in and around the waterways surrounding the City of New York ("OpSail 2000"). Many of these events were organized by defendant OpSail, a non-profit corporation that described part of its mission as "to promote the use of tall ships as centers of learning." OpSail Resp. to Interrogs. ("OpSail Resp.") at 2. The events organized by OpSail included the Parade of Sails, a July 4th event during which several hundred sailing ships sailed up the Hudson River from the Statue of Liberty to the George Washington Bridge. See Pl.'s Statement of Material Facts ("Pl. St."), Ex. 2 at 1.2. After the Parade of Sails, the ships reversed course and returned to assigned berths or anchorages.See id. From July 4-8, 2000, many of these ships were open to the public for visits. See id. at 1.1-1.2.
This exhibit is the "Captain's Handbook" for OpSail 2000.
The Amerigo Vespucci was one of the ships invited to participate in these events by OpSail. See OpSail Resp. at 3. The Amerigo Vespucci is a military vessel that became part of the Italian Navy in 1929. See Reply Decl. of Alessandro Saracino (attorney to Italy) ("Saracino Decl.") ¶ 3. It is a tall-masted sailing vessel used primarily for training of officer cadets that also represents Italy and its navy. See Mem. of Law in Supp. of Republic of Italy's Mot. to Dismiss ("Italy Mem."), Exs. 1, 2.
Although OpSail organized the Parade of Sails and invited Italy to participate, the navy of Italy coordinated the actual visit of the Amerigo Vespucci with the United States Navy and the United States Department of State. On January 18, 2000, Rear Admiral Giovanni Bortolato, an Italian naval attache, forwarded a formal "Naval Ship Visit Clearance Request" to the United States Navy Foreign Liaison Office, listing the Amerigo Vespucci's specifications and crew size. See Saracino Decl., Ex. 7. On February 10, 2000, the United States Navy granted clearance for the Amerigo Vespucci's visit to New York for OpSail 2000, as well as for additional port calls in Norfolk, Baltimore, Philadelphia, Newport, and Boston. See id., Ex. 8.
In addition, on March 13, 2000, the Embassy of Italy sent a Note Verbale to the United States Department of State requesting port visit clearance for the Amerigo Vespucci for all six port calls. See id., Ex. 9. The Note Verbale stated that the Amerigo Vespucci would be entering the United States for an informal visit in conjunction with OpSail and another event. See id. An informal visit is defined in an abstract from the "United States Navy Guide for Foreign Naval Attache[s]" as those "made primarily in the interest of familiarization, goodwill and friendly relations." Aff. of Jennifer Cottell in Opp'n to Republic of Italy's Mot. to Dismiss ("Cottell Dismiss Aff."), Ex. 7. These visits "require no special formalities other than making the official calls prescribed by U.S. Navy Regulations," and "may and usually do include the objectives of routine (operational) visits." Id. "Routine (operational) visits" are defined as "those made primarily for logistical support, repairs, liberty and recreation, or in connection with operational tasks." Id. Finally, formal visits "are rare and normally made only on special occasions such as national or international celebrations or visits of Chiefs of State." Id. All visits discussed by this guide are those made "in the absence of treaty or agreement." Id. The State Department granted permission for the visit on April 10, 2000. See id., Ex. 10.
A Note Verbale is an unsigned diplomatic communication. See Black's Law Dictionary 1087 (7th ed. 1999).
There is no question that the Amerigo Vespucci was docked at Pier 86 on July 6, 2000. In addition, Lieutenant General Martin Steele, President and CEO of the Intrepid Museum, stated that the City of New York, not the Intrepid Museum, owns Pier 86. See Aff. of Lieutenant General Martin R. Steele on behalf of Intrepid Museum ("Steele Aff.") ¶ 4; Aff. of Lieutenant General Martin R. Steele in Reply to Pl.'s Opp'n Papers ("Steele Reply Aff.") ¶ 5. Sigel does not specifically dispute this assertion, but claims not to be able to confirm it without further discovery. See Pl.'s Resp. to Defs.' Statement of Material Facts ("Pl. Resp.") ¶ 11.
However, precisely who arranged for and provided berthing spaces for the ships — and, specifically, the Amerigo Vespucci — is a bit unclear. OpSail stated in the Captain's Handbook that it would provide berthing for the vessels. See id. Moreover, Steele stated that the Intrepid Museum did not procure or assign to the Amerigo Vespucci its berthing spot at Pier 86. Steele also said that the Intrepid Museum's only involvement with the maintenance and berthing of the Amerigo Vespucci was to assist it with tie up to the dock and to provide it with a source of fresh water and electric and phone connections. See Steele Aff. ¶ 6; Steele Reply Aff. ¶ 3. However, in its response to Sigel's interrogatories, OpSail said that the Intrepid Museum was an OpSail 2000 sponsor "and provided the berthing space for the Amerigo Vespucci." OpSail Resp. at 3.
In addition, the Intrepid Museum billed OpSail 2000 "port service fees" for berthing the Amerigo Vespucci. See Pl. St., Ex. 7. These fees appear to have been for the physical activity of berthing the Amerigo Vespucci at Pier 86, not for the space itself. See Steele Reply Aff. ¶ 3. Notably, the Intrepid Museum also billed OpSail 2000 similar port service fees for at least fifteen other vessels. See Pl. St., Ex.7. In its invoice, the Intrepid Museum charged OpSail 2000 for "Dockage, Line Handlers, Fresh Water" for the Amerigo Vespucci and seven other vessels, just dockage and fresh water for two vessels, and just dockage for six vessels. See id. This at least implies that these other ships were berthed near the Intrepid Museum and/or at Pier 86.
Some events were also organized by defendant Intrepid Museum. The Intrepid Museum organizes an annual International Fleet Week (also known as Armed Forces Week), but for 2000 it was "incorporated in the `OpSail 2000' event." See Letter from Intrepid Museum Director of Protocol Gary Spampanato to Italian Naval Attache Bortolato of 9/28/99. As part of Fleet Week, the Intrepid Museum organized several military demonstrations. To this end, the Intrepid Museum submitted a "Request for Military Support" to the Department of Defense. See Pl. Resp., Ex. 3. This request included a request for the United States Marine Corps to stage a "Level Two Harrier demonstration, and pier takedown, fast rope and SPIE demonstration" on July 6-8, 2000. See id. The Intrepid Museum also requested that the United States Coast Guard stage a search and rescue demonstration on the same dates. See id. Both of these demonstrations were to take place at Pier 86 off the stern of the Intrepid Museum, and the "pier takedown" specifically was to take place at a barge just south of the Intrepid Museum. See id. OpSail claims that it had no involvement in these air demonstrations. See OpSail Resp. at 3.
This letter is Exhibit 4 to the affidavit of Sigel's attorney, Jennifer Cottell, in opposition to defendants' motion for summary judgment ("Cottell Summ. J. Aff.").
There are some disputed facts regarding arrangements made by OpSail and the Intrepid Museum. First, OpSail and the Intrepid Museum claim that they had no involvement with the security arrangements for the Amerigo Vespucci. See OpSail Resp. at 3; Steele Aff. ¶ 9. Indeed, Steele stated that the Intrepid Museum employs security personnel to monitor activities related to the museum, including monitoring the entry and exit of patrons and responding to emergencies at the museum, but these employees were not responsible for condition, maintenance, or safety of the Amerigo Vespucci. See Steele Aff. ¶ 9. Sigel denies the Intrepid Museum's assertions, claiming that a museum security officer boarded the Amerigo Vespucci after she was injured and obtained information about the accident. See Sigel Aff. ¶ 8.
Second, OpSail and the Intrepid Museum both claim that they had no involvement with medical services for incidents occurring onboard the Amerigo Vespucci. See OpSail Resp. at 4; Steele Aff. ¶ 10. Indeed, Steele stated that the Intrepid Museum retained Emergency Medical Technicians ("EMTs") to be present during OpSail 2000 for the purpose of providing any necessary medical assistance to visitors to the Intrepid Museum, but those EMTs were not retained to respond to medical emergencies on the Amerigo Vespucci. See Steele Aff. ¶ 10. However, Sigel asserts that paramedics who she was told were under contract to the Intrepid Museum came onboard the Amerigo Vespucci to assess her condition and that they assisted her from the ship to an ambulance. See Sigel Aff. ¶ 9.
There is some documentary evidence potentially relevant to these disputes. The Captain's Handbook gives some contacts for medical services and indicates that visiting vessels should call 911 for emergency medical assistance or emergency ambulance service. See Pl. St., Ex. 2 at 6.6. In addition, OpSail held at least one organizational meeting regarding OpSail 2000 at the Intrepid Museum. See Cottell Summ. J. Aff., Ex. 3.
(2)
Prior to July 6, 2000, Sigel saw advertisements promoting "a huge sailing event that would take place at the [Intrepid Museum]." Sigel Aff. ¶ 2. According to Sigel, those advertisements mentioned tours of sailing vessels. See id. On July 6, 2000, Sigel paid an admission fee to visit the Intrepid Museum. See id. ¶ 3. Sigel claims that this ticket was also for "events on the pier." Id. After walking through the Intrepid Museum, Sigel walked along the pier next to it and boarded the Amerigo Vespucci. See id. ¶ 4. While on the Amerigo Vespucci, Sigel watched an air jet demonstration, presumably one of the two demonstrations requested by the Intrepid Museum. See id. ¶ 5. During the demonstration, "a heavy object fell from above," striking her on the head, neck, and right shoulder. Id. ¶ 6. Sigel then was moved to a room on the Amerigo Vespucci and received medical attention from members of the crew. See id. ¶ 7. As described above, Sigel then received medical attention from "paramedics" that she was told were under contract to the Intrepid Museum. See id. ¶ 9. In addition, Sigel claims that a "Museum Security Officer" took a report from her and took photographs of her injury. See id. ¶ 8. Sigel also claims that the security officer told her that he would take a photograph of the object that struck her but that when she subsequently requested copies of the photos from Intrepid Director of Security Richard Lisi, he told her the photographs were destroyed. See id. ¶¶ 8, 11.
The material submitted by the parties does not detail Sigel's injuries. Only the complaint describes them, and the complaint is not very specific. It states only that: (1) her "muscles, nerves, tendons, blood vessels and ligaments were severely wrenched, sprained, bruised and other wise injured"; (2) she sustained head and shoulder injuries and internal injuries, the extent of which is not known; (3) "she sustained severe injury and shock to her nerves and nervous system"; (4) she has suffered "agonizing aches, pains and mental anguish"; and (5) she has been and is "disabled from performing her usual duties, occupations and avocations." Compl. ¶ 16.
(3)
Sigel filed a complaint on May 9, 2001, and the case was assigned to the late Judge Eugene Nickerson. At two conferences in October and December 2001, Magistrate Judge Steven Gold established a briefing schedule for Italy's motion to dismiss and OpSail and the Intrepid Museum's motion for summary judgment. Under Judge Gold's orders, certain documentary discovery was permitted, but deposition practice was stayed until the pending motions were decided. Accordingly, only limited discovery has been conducted to date.
(4)
In a September 9, 2002 letter, Sigel said that she had filed a claim under the Federal Tort Claims Act ("FTCA") against the United States more than six months earlier. When the United States did not respond to the FTCA claim, she filed a separate suit against the United States and the Republic of Italy (action 02-CV-3814). As indicated above, the United States subsequently intervened as party defendant in this case (action 01-CV-2907). After the United States was substituted for the Republic of Italy, and the Republic of Italy was dismissed from this case, Sigel voluntarily dismissed action 02-CV-3814 against both the United States and the Republic of Italy. Accordingly, action 02-CV-3814 was closed, and only this case remains.
Discussion
Defendants OpSail and the Intrepid Museum move for summary judgment under Rule 56. Summary judgment is granted when "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). On a motion for summary judgment, the court must consider "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512 (1986). In making this determination, all factual inferences must be drawn in favor of the party against whom summary judgment is sought, viewing the factual assertions in materials such as affidavits, exhibits, and depositions in the light most favorable to the party opposing the motion. Id. at 255, 106 S.Ct. at 2513; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986). However, "conclusory statements, conjecture, or speculation" by the non-moving party will not defeat the motion. Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996).
OpSail and the Intrepid Museum argue that they are entitled to summary judgment because neither of these defendants owed a duty of care to Sigel and because none of their acts or omissions was the proximate cause of her injuries. For the most part, Sigel does not contest these arguments on the merits. Rather, she argues that summary judgment is inappropriate because not enough factual discovery has been conducted.
Federal Rule of Civil Procedure 56(f) governs situations in which a party may need more discovery to oppose a summary judgment motion. The rule states:
Should it appear from the affidavits of a party opposing the motion [for summary judgment] that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
In the Second Circuit, a party opposing summary judgment on the ground that it needs more discovery under Rule 56(f) must present her contention by affidavit. See Paddington Partners v. Bouchard, 34 F.3d 1132, 1137 (2d Cir. 1994). In this case, Sigel does not refer to Rule 56(f) in any of her submissions, but her attorney Cottell's affidavit and her brief contain enough information about the facts sought that they will be treated as a Rule 56(f) affidavit. See Meloff v. N.Y. Life Ins. Co., 51 F.3d 372, 375 (2d Cir. 1995) (denying summary judgment when plaintiff's affidavit in opposition to the motion stated the necessary information and requested the opportunity to take depositions and seek further discovery); see also Lukas v. Triborough Bridge Tunnel Auth., No. 92 Civ. 3680, 1993 WL 597132, at *8 n. 3 (E.D.N.Y. Aug. 18, 1993) (construing an affidavit to "function" as a Rule 56(f) affidavit).
A Rule 56(f) affidavit must include the following: "(1) what facts are sought and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) what effort affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts." Gurary v. Winehouse, 190 F.3d 37, 43 (2d Cir. 1999) (quoting Meloff, 51 F.3d at 375). In this case, it is notable that Magistrate Judge Gold permitted only document requests and interrogatories to be served prior to this motion and stayed deposition practice pending the motion's outcome.
Sigel's submissions describe what facts she seeks. Specifically, Sigel seeks discovery regarding the following: (1) what events were in the "operational program" for OpSail 2000 and, who was responsible for each event; (2) the relationship, in general, between OpSail and Italy; (3) any other services that OpSail would provide to the Amerigo Vespucci as its "liaison" to the event, including any advertisements or other promotional material; (4) one meeting held by OpSail at the Intrepid Museum about OpSail 2000; (5) who made the decision to berth the Amerigo Vespucci at Pier 86; (6) who was responsible for providing access to the vessels and security on them; and (7) whether employees of the Intrepid Museum boarded the Amerigo Vespucci in providing it a source of fresh water and electric and telephone connections.
As to this last potential area of discovery, Steele stated in a reply affidavit that no Intrepid Museum employees boarded the ship in the course of docking it and providing it with services. See Steele Reply Aff. ¶ 4.
Although Sigel does not always specify how she intends to obtain these facts, it is clear that she seeks depositions and some additional document discovery.
However, Sigel must also demonstrate how these facts are reasonably expected to create a genuine issue of material fact. As Sigel has brought a claim of negligence, she must demonstrate that OpSail and the Intrepid Museum owed her a duty of care, these defendants breached that duty, and the breach was a proximate cause of her injuries. See, e.g., Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 333, 441 N.Y.S.2d 644, 648 (1981). Whether a defendant owes a duty of care to a plaintiff, and the scope of that duty, is a legal question for the court, not a factual question for the jury. See Di Ponzio v. Riordan, 89 N.Y.2d 578, 583, 657 N.Y.S.2d 377, 379 (1997); see also Palka v. Servicemaster Mgmt. Servs. Corp., 83 N.Y.2d 579, 585, 611 N.Y.S.2d 817, 820 (1994).
The parties focus on whether OpSail and the Intrepid Museum owed Sigel a duty to protect her from injury. At the outset, it should be remembered that the roles of OpSail and the Intrepid Museum were fairly limited. OpSail invited the Amerigo Vespucci to OpSail 2000, probably decided to dock it at Pier 86, served as its liaison, and generally coordinated OpSail 2000. The Intrepid Museum requested the military demonstrations that Sigel claims created vibrations, helped dock the Amerigo Vespucci at Pier 86, provided fresh water and electric and telephone connections, and sold Sigel a ticket for the Intrepid Museum (but not to board the Amerigo Vespucci). Sigel also speculates that the Intrepid Museum provided security and emergency medical assistance on the Amerigo Vespucci. However, the object fell from the Amerigo Vespucci, a vessel of the Italian Navy, and the United States Department of Defense performed the military demonstration, which may have caused the object to fall.
Defendants normally are not responsible for injuries caused by others:
In the ordinary circumstance, common law in the State of New York does not impose a duty to control the conduct of third persons to prevent them from causing injuries to others; liability for the negligent acts of third persons generally arises when the defendant has authority to control the actions of such third persons.Purdy v. Pub. Adm'r of County of Westchester, 72 N.Y.2d 1, 8, 530 N.Y.S.2d 513, 516 (1988) (health-care facility and its medical director had no duty to customer at gas station when a resident of the facility crashed her car into the customer); see also D'Amico v. Christie, 71 N.Y.2d 76, 88, 524 N.Y.S.2d 1, 6 (1987) (employer who fired an inebriated employee and ordered him off the premises did not owe a duty to another driver who was killed in an accident with the employee);Pulka v. Edelman, 40 N.Y.2d 781, 783-84, 390 N.Y.S.2d 393, 395-96 (1976) (operators of garage had no duty to pedestrian injured by customer driving out of the garage); Gilbert v. St. John's Univ., 1998 WL 19971, at *7 (Jan. 20, 1998) (university did not owe a duty to a student at another university who was injured during a rugby match with an unsanctioned rugby team made up of university students). This is true even when the defendant could, as a practical matter, exercise such control. See Purdy, 72 N.Y.2d at 8, 530 N.Y.S.2d at 516; D'Amico, 71 N.Y.2d at 88, 524 N.Y.S.2d at 6; Pulka, 40 N.Y.2d at 784, 390 N.Y.S.2d at 396.
However, in certain circumstances, "there is sufficient authority and ability to control the conduct of third persons" that the New York Court of Appeals has identified a duty to do so. Purdy, 72 N.Y.2d at 8, 530 N.Y.S.2d at 516. The Court of Appeals has "imposed a duty to control the conduct of others where there is a special relationship between defendant and a third person whose actions expose plaintiff to harm such as would require the defendant to attempt to control the third person's conduct; or a relationship between the defendant and plaintiff requiring defendant to protect the plaintiff from the conduct of others." Id. (citing, inter alia, Pulka, 40 N.Y.2d at 783, 390 N.Y.S.2d 393) . The primary example of the type of relationship between a defendant and a plaintiff that could give rise to such a duty is that of a common carrier to a passenger. See Purdy, 72 N.Y.2d at 8, 530 N.Y.S.2d at 516; Pulka, 40 N.Y.2d at 783, 390 N.Y.S.2d at 396. Other examples provided by the Court of Appeals are a master-servant relationship, a parent-child relationship, and the relationship between the owner of a vehicle and the driver of the vehicle while the owner is in the car. See Purdy, 72 N.Y.2d at 8, 530 N.Y.S.2d at 516; Pulka, 40 N.Y.2d at 783, 390 N.Y.S.2d at 395.
In this case, Sigel only alleges that she was harmed by an object that fell from the Amerigo Vespucci and struck her while she was aboard the ship. Thus, OpSail and the Intrepid Museum had no duty of care to Sigel to prevent injuries caused by the potential negligence of the third party, absent any special relationship. In effect, Sigel argues that there are questions of fact as to the relationships between OpSail and Italy, the Intrepid Museum and Italy, and these two defendants and her. However, there is no suggestion that any of these relationships are sufficient to impose on OpSail or the Intrepid Museum a duty of care. That is, the relationships between OpSail and Italy and the Intrepid Museum and Italy were not comparable to a master-servant or parent-child relationship, nor was the relationship between either of these defendants and Sigel similar to a common carrier-passenger relationship. For instance, even if Sigel obtained additional discovery regarding any other services OpSail provided to the Amerigo Vespucci as its liaison, the record is entirely void of evidence that would suggest that such discovery would find a master-servant or parent-child type relationship.
It should be noted, however, that finding no duty of the Intrepid is based on the fact that no ticket was bought from the Intrepid to board the Amerigo Vespucci. At oral argument, plaintiff's counsel stated that Sigel thought that she needed a ticket to enter the Italian vessel. Had there been clear evidence of payment for a ticket to board the Amerigo Vespucci, there would be no difficulty finding a duty of the Intrepid to ensure a safe place, even if the Intrepid did not own the ship. See 85 N.Y. Jur.2d Premises Liability § 140.
In addition, neither OpSail nor the Intrepid Museum had any control over the maintenance on the Amerigo Vespucci. To the contrary, the Amerigo Vespucci is a military vessel of the navy of a sovereign nation — Italy. It is highly unlikely that organizations such as OpSail and the Intrepid Museum could have control over the Amerigo Vespucci so as to make sure that all objects were sufficiently secured. Further, to impose such a duty would make OpSail responsible for the safety of every visitor to OpSail 2000 and require the Intrepid Museum to tighten every screw on every vessel (and, for that matter, every object) in the vicinity of Pier 86. This is far more control than either defendant actually had.
Even if OpSail or the Intrepid Museum had some duty of care to Sigel, Sigel would still have to demonstrate that her injury was within the scope of that duty. "In analyzing questions regarding the scope of an individual actor's duty, the courts look to whether the relationship of the parties is such as to give rise to a duty of care, whether the plaintiff was within the zone of foreseeable harm, and whether the accident was within the reasonably foreseeable risks." Di Ponzio, 89 N.Y.2d at 583, 657 N.Y.S.2d at 379 (citations omitted) (car left running at a gas station that rolled forward and injured a customer not a foreseeable risk for the gas station); see also Danielenko v. Kinney Rent A Car, Inc., 57 N.Y.2d 198, 204, 455 N.Y.S.2d 555, 557 (1982) (bomb explosion in a car rented by a security agency to transport money that injured occupants not a foreseeable risk for rental car agency). "Foreseeability of risk is an essential element of a fault-based negligence cause of action because the community deems a person at fault when the injury-producing occurrence is one that could have been anticipated." DiPonzio, 89 N.Y.2d at 583, 657 N.Y.S.2d at 379. That is, to be foreseeable, "the risk of injury as a result of defendant's conduct must not be merely possible, it must be natural or probable."Pinero v. Rite Aid of New York, Inc., 294 A.D.2d 251, 743 N.Y.S.2d 21, 22 (1st Dep't 2002). "Questions of foreseeability are for the court to determine as a matter of law when there is only a single inference that can be drawn from the undisputed facts." Id.
Thus, Sigel must establish that the risk that an object would fall off a vessel because of vibrations from a military demonstration that involved aircraft and harm a visitor on that ship was a foreseeable risk. This she cannot do. As to OpSail, this not the type of risk that it could have anticipated when it invited the Amerigo Vespucci to participate in OpSail 2000. As to the Intrepid Museum, there may have been some foreseeable risk of damage to third parties when it requested that the demonstration be held near to Pier 86, but it was not "natural or probable" that vibrations from the demonstration would result in an object falling from a ship and harming a visitor on board the ship.
Finally, even if OpSail or the Intrepid Museum had a duty of care to Sigel, a plaintiff "cannot recover absent a showing that defendant either created the claimed dangerous condition, or had actual or constructive notice thereof, and an opportunity to remedy the defect." See Golonka v. Saratoga Teen Recreation of Saratoga Springs, Inc., 249 A.D.2d 854, 672 N.Y.S.2d 472 (3d Dep't 1998) (citing Simmons v. Metro. Life Ins. Co., 84 N.Y.2d 972, 973-74, 622 N.Y.S.2d 496, 497 (1994)); see also Gordon v. Am. Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 647 (1986). Obviously, there is no evidence that OpSail or the Intrepid had anything to do with the loose object that fell on Sigel or had actual notice that an object was loose on the Amerigo Vespucci. "To constitute constructive notice, a defect must be visible and apparent, and it must exist for a sufficient length of time prior to the accident to permit the owner, or its employees, to discover and remedy it." Gordon, 67 N.Y.2d at 837, 501 N.Y.S.2d at 647; see also Maiorano v. Price Chopper Operating Co., 221 A.D.2d 698, 698-99, 633 N.Y.S.2d 413 (3d Dep't 1995). Again, there is no evidence that the loose object was visible or apparent to OpSail or the Intrepid Museum.
Therefore, Sigel cannot show that any facts she might uncover in further discovery are reasonably expected to create a genuine issue of material fact. Consequently, the motion for summary judgment of OpSail and the Intrepid Museum is granted.
As OpSail and the Intrepid Museum did not have a duty of care to Sigel, there is no need to address their proximate cause argument.
Conclusion
Accordingly, for the reasons stated above, OpSail and the Intrepid Museum's motion for summary judgment is granted.SO ORDERED: