Opinion
99 Civ. 10250 (CSH).
November 30, 2000.
MEMORANDUM OPINION AND ORDER
Plaintiff Robert Hood brought this action pursuant to the admiralty and maritime jurisdiction of the court against defendant Regency Maritime Corp. ("Regency" or "defendant") for injuries suffered while aboard the ocean-going liner S/S Regent Sun. Defendant moves for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure ("Fed.R.Civ.P."). For the reasons that follow, defendant's motion for summary judgment is granted.
BACKGROUND
On or about April 21, 1995 the plaintiff purchased a ticket from an agent of Regency, and thereafter boarded the S/S Regent Sun in the City of New York. The Regent Sun, a cruise ship, was used to transport passengers between New York City and Puerto Rico. On June 1, 1996 the vessel was en route to New York City, nearing the end of her voyage. The plaintiff, along with his wife, resided in cabin number 8014, which came equipped with a private bathroom. That evening, at approximately 6:50 p.m., while the Regent Sun sailed upon navigable waters, the plaintiff alleges he sustained personal injury when he was struck by a bathtub panel while using the bathroom in his cabin.
According to the plaintiffs deposition, while in the bathroom a loud noise ("like a .22") sounded off, whereupon a panel detached from the tub and flew against plaintiffs right calf. January 12, 2000 Deposition of Plaintiff at 43. This contact with plaintiffs right calf caused the rest of his right leg to move forward, where the right knee then struck the toilet causing the plaintiff to go downward on his right side. With assistance from his wife, the plaintiff then sat down on the bed, at which time his wife summoned a nurse and eventually the vessel's physician to their cabin.
Within months of the incident, plaintiff filed a complaint against Regency on the grounds that his injuries were a direct and proximate result and cause of the defendant's negligence, in failing to take reasonable precautions to protect passengers against dangerous conditions and failing to warn of inherently dangerous conditions. Plaintiff alleges that serious personal injuries requiring medical care were sustained as a result of defendant's negligence, and that plaintiff was forced to forgo customary activities, including work. Additionally, the plaintiff claims that the defendant breached its contract, entered into through purchase of a ticket for voyage, by failing to have the Regent Sun in a safe and seaworthy condition during the course of plaintiffs voyage.
The defendant has timely moved for summary judgment pursuant to Rule 56(c) of the Fed.R.Civ.P. on the grounds that the plaintiff has failed to produce legally sufficient evidence that could support a finding that Regency was negligent in any respect.
DISCUSSION
Summary judgment may be granted in favor of the moving party "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.), cert. denied, 524 U.S. 911 (1998). In considering such a motion the court must "view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L.B. Foster Co. v. America Piles. Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citing Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)).
In determining whether to grant a motion for summary judgment, the court "cannot try issues of fact; it can only determine whether there are issues to be tried." American Mfrs. Mut. Ins. Co. v. American Broadcasting-Paramount Theatres, Inc., 388 F.2d 272, 279 (2d Cir. 1967). The party "seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying . . . [what] it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Though courts are hesitant to grant summary judgment in negligence cases, "the mere fact that a case involves a claim of negligence does not preclude a granting of summary judgment."Cumminsky v. Chandris, S.A., 719 F. Supp. 1183, 1186 (S.D.N Y 1989), affd, 895 F.2d 107 (2d Cir. 1990).
The purchase of a ticket creates a contractual relationship, a contract of carriage, between the cruise line and the passenger.See Benedict on Admiralty, Volume 10, § 5.04[a], Seventh Ed. (2000). A showing of negligence on the part of the carrier can constitute a violation of such contract, which inherently imposes some duty of care on the vessel owner. Haffel v. United States Lines Co., 114 F. Supp. 443 (S.D.N.Y. 1953) (noting negligence must be shown before a passenger can recover for breach of contract).
While recognizing that courts had earlier imposed on ocean carriers a high standard of care for the safety of their passengers, the Second Circuit has held that the duty of care imposed on such carriers is the "reasonable care under the circumstances" standard. Rainey v. Paquet, 709 F.2d 169 (2d Cir. 1983) (establishing the standard of reasonable care); Monteleone v. Bahama Cruise Line, Inc., 838 F.2d 63, 65 (2d Cir. 1988) ("it is now clear in this Circuit that the appropriate standard is one of reasonable care under the circumstances"). The defendant is correct that a vessel owner is not the insurer of the safety of its passengers. Friedman v. Cunard Line Limited, No. 95 Civ. 5232, 1997 WL 698184 (S.D.N.Y. Nov. 10, 1997). Instead, the degree of care demanded of a vessel owner or operator depends upon "whether the circumstances of maritime travel differ from those of ordinary activities conducted on terra firma." McDonough v. Celebrity Cruises, 64 F. Supp.2d 259, 262 (S.D.N.Y. 1999). "The extent to which the circumstances surrounding maritime travel are different from those encountered in daily life and involve more danger to the passenger, will determine how high a degree of care is reasonable in each case." Rainey, 709 F.2d at 172.
See e.g., Moore v. American Scantic Line, Inc., 121 F.2d 767, 768 (2d Cir. 1941).
We must first, then, determine whether the nature of the plaintiffs injury is peculiar to maritime travel, or whether, instead, ordinary principles of negligence will apply.Monteleone, 838 F.2d at 65. Simply put, being struck by a "portion of the tub" is not an incident uniquely encountered while at sea. Though it is arguable that risk-creating conditions and circumstances experienced at sea carry with them a more acute sense of danger even if such experiences may also occur on land,only those risks peculiar to sea travel can, sometimes, impose a heightened duty of care on carriers. Were that not the case, carriers would be subject to a heightened standard vis-a-vis passengers in every respect. The courts have, if anything, moved away from such a standard. See Rainey, 709 F.2d at 169. The plaintiffs, then, must establish that the defendants failed to show reasonable care under the circumstances.
The presence of a stool on a dance floor (Rainey), a protruding screw on a stair (Monteleone), and a slippery wet spot on a dance floor (Keefe v. Bahama Cruise Line, Inc., 687 F.2d 1318 (11th Cir. 1989)), are all examples of conditions held not to be peculiar to maritime travel. No doubt the risks associated with each of these can lead to more drama on an ocean liner than on land. Benedict on Admiralty, Volume 10, § 5.04[a], Seventh Ed. (2000).
Additionally, a ship owner is responsible for defective conditions aboard ship only when it has actual or constructive notice of them. Friedman, No. 95 Civ. 5232, 1997 WL 698184, at *2 (S.D.N.Y. Nov. 10. 1997); (citing Monteleone, 838 F.2d at 65;Rainey, 709 F.2d at 172). This principle parallels treatment of landowners' liability for dangerous conditions, for which actual or constructive notice of the condition is required. Monteleone, 838 F.2d at 65; Taylor v. United States, 121 F.3d 86 (2d Cir. 1997). Such notice requires that a defective condition exist for a sufficient amount of time to invite corrective measures.Monteleone, 838 F.2d at 65. As noted recently in McDonough, "in a number of cases courts have granted summary judgment or judgment as a matter of law in favor of defendants where the plaintiff, injured while on a cruise due to a defective condition onboard the ship, could offer no evidence whatsoever that the ship's operator had notice of the condition." 64 F. Supp at 263 (citing, inter alia, Monteleone, 838 F.2d at 65-66 (no notice that defective screw protruded from brass stairway); Rainey, 709 F.2d at 172 (no proof that appellee had actual or constructive notice of presence of stool on dance floor); Cumminsky, 719 F. Supp. at 1188-90 (no notice of wetness of ship's lounge area); Marchewka v. Bermuda Star Lines, 937 F. Supp. 328, 335 (S.D.N.Y. 1996) (no notice of problems with bunk ladder).
The plaintiff argues that "notice" is not a "condition precedent" where, as here, the defendant has "implied knowledge based upon the fact that [sic] was part of the vessel." Memorandum of Law, Opposition to Defense Motion for Summary Judgment, at 2. Plaintiff seems to argue that, first, the defendant was negligent in failing to warn the plaintiff of a dangerous condition that defendant ought to have known about, to wit, the faulty tub panel, and, furthermore, that under res ipsa loquitur the defendant is liable for injuries to the plaintiff. There is no contention made by the plaintiff that the defendants had any actual notice.
To the extent there is any articulable difference between them, it remains unclear whether the plaintiffs are alleging that the defendant had constructive notice of the dangerous condition, or merely that a failure of the carrier to check the tub constituted negligence. Plaintiffs Affidavit in Opposition to Motion for Summary Judgment, at 2-3.
Even a cursory look at precedent in this Circuit makes clear that in the absence of evidence to suggest at least constructive notice on the part of the vessel owner, summary judgment for the defendant is appropriate. In Monteleone, the plaintiff, a passenger aboard a cruise liner, contended that the shipowner had constructive notice of a protruding screw attached to a brass strip which covered the edge of a step. As assumed by the defense motion for summary judgment, the plaintiff fell down the stairs as a result of such screw. Under a standard of reasonable care, the court concluded, as did the court in Rainey regarding the offending stool on the dance floor, liability turned on whether constructive notice existed, and since no prior detection of the screw was asserted, no such notice was found. Id. at 66 ("we simply cannot conclude that [defendant's] failure to discover the condition of the protruding screw . . . constituted a lack of due care for which it should be held liable"). In our case, there is similarly no contention that there was any prior detection of a problem with the tub paneling, nor any specific basis for alleging constructive notice other than the general comment that the tub's age made regular inspection of the paneling reasonable.
The factual foundation for plaintiffs comments regarding the age and condition of the tub is not stated in the motion papers, and the defendants strongly challenge this version of its condition. See Affidavit of Phillip Morrissey, Chief Security Officer of Regency, at ¶ 7.
In Marchewka the plaintiff and his family were passengers on a cruise line sharing a cabin. Sleeping accommodations included a bunk bed, with the top bunk accessible by a ladder affixed to the bed frame. The plaintiff one evening attempted a descent from the top bunk by way of the ladder in hopes of stepping gently to the floor. After placing his foot on the top rung, however, the rung gave way, breaking from its side rails, and the plaintiff tumbled to the floor where he sustained injury. The plaintiff then sued the carrier for negligence. In granting the defendant's motion for summary judgment, the court held:
[Plaintiff] admitted that he had not experienced any problems with the ladder prior to the fall. Plaintiffs present no evidence that defendant knew or had reason to know of the dangerous condition. Thus, defendant cannot be held liable for the allegedly defective condition of the ladder.Id. 937 F. Supp. at 334. Similarly here, the plaintiff concedes that he and his wife had used the bathroom, specifically the tub basin, many times prior to the incident without the slightest hint of danger.
Without notice of any sort, nor any interval of time within which to remedy a potential defect or danger, the defendants cannot be held liable for the injuries sustained by the plaintiff. The plaintiffs also assert the doctrine of res ipsa loquitur. "Res ipsa loquitur is an often confused and often misused doctrine that enables a [factfinder] presented only with circumstantial evidence to infer negligence simply from the fact that an event happened." St. Paul Fire Marine Ins. Co. v. City of New York, 907 F.2d 299, 302 (2d Cir. 1990). For a case to be submitted on the theory of res ipsa loquitur, three basic requirements must be met. First, the event must be of a type that does not ordinarily occur in the absence of someone's negligence, second, the event must be caused by an agency or instrumentality within the exclusive control of the defendant, and third, the event must not be caused by any voluntary action or contribution by the plaintiff. McDonough, 64 F. Supp.2d at 265; Marchewka, 937 F. Supp. at 333. As the court found in McDonough and Marchewka, the plaintiff here cannot meet the "exclusive control" requirement, given the fact that he and his family had access to the bathroom and admit to regular use of the bathtub. Further, the plaintiff may well have been the efficient cause of the panel's displacement as he himself admits that he may have made the determinative contact with the panel. There is nothing in the record to suggest it is more likely than not that the panel was dislodged of its own force rather than by the force of the plaintiff. For this reason, in addition to the lack of exclusive control, the plaintiff is unable to avail himself of this theory.
Plaintiffs Affidavit of Fact, In Opposition to Motion for Summary Judgment, at 2. This issue is confusing since plaintiff admits to no such contact in his deposition. In his Affidavit of Fact plaintiff suggests that even if he made the contact displacing the panel, it should have withstood his weight (350- 400 lbs.) and the corresponding force applied. The point is not determinative in resolving this motion.
Given this conclusion on the issue of negligence, I need not separately consider plaintiffs claim for breach of contract.
For the foregoing reasons, the motion of defendant for summary judgment is granted.
The Clerk of the Court is directed to dismiss the complaint with prejudice.
It is SO ORDERED.