Cummiskey v. CHANDRIS, SA

• Decision Date: 17 August 1989
• Docket Number: No. 87 Civ. 3319(IBC).,87 Civ. 3319(IBC).
• Citation: 719 F. Supp. 1183,1989 AMC 2561
• Parties: Shirley CUMMISKEY, Plaintiff, v. CHANDRIS, S.A. and Ajax Navigation Co., Defendant.
• Court: U.S. District Court — Southern District of New York

719 F. Supp. 1183

1989 AMC 2561

Shirley CUMMISKEY, Plaintiff, v. CHANDRIS, S.A. and Ajax Navigation Co., Defendant.

No. 87 Civ. 3319(IBC).

United States District Court, S.D. New York.

August 17, 1989.

Tabak & Mellusi, New York City, for plaintiff; Ralph J. Mellusi, of counsel.

Martocci & Burns, New York City, for defendant; Howard W. Burns, Jr., of counsel.

OPINION

IRVING BEN COOPER, District Judge.

Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, contending there are no genuine issues of material fact for trial. Plaintiff opposes the motion. For the reasons set forth below, the motion of defendants is granted in its entirety.

STATEMENT OF FACTS

Plaintiff Shirley Cummiskey commenced this personal injury action in New York State Supreme Court to recover damages for an injury incurred while a passenger on board defendants' vessel, the S/S BRITANIS. Defendant operator Chandris, S.A. and defendant vessel owner Ajax Navigation Co. subsequently removed the action to this Court on the basis of diversity jurisdiction.

The papers before us reveal the following. Plaintiff and her travelling companions, Eileen and Tara Donohue, boarded the S/S BRITANIS on the afternoon of July 6, 1982 for a five day cruise from New York to Bermuda. (Deposition of S. Cummiskey, sworn to September 6, 1984, pg. 14 (hereafter S. Cummiskey deposition)). The following day, the three women were walking through the ship's Dolphin Lounge (hereafter "the lounge") in order to reach the buffet lunch being served at the pool, (Id., pg. 19) located immediately behind the lounge (E. Donohue deposition, pgs. 27-28). The lounge area is rectangular in shape, with three doors in the forward end of the room and two in the rear which lead out into the pool area. (T. Donohue deposition, pgs. 16-18, E. Donohue deposition, pg. 29). The lounge floor is carpeted with the exception of a tile area bordering the front and sides of the bar. (Id., p. 19). The bar is located between the two rear doors. (T. Donohue deposition, pg. 23).

Plaintiff and her companions entered the lounge through the forward middle door, (E. Donohue deposition, pg. 29) and proceeded single file, with plaintiff leading, between the tables and chairs in the lounge, towards the bar. (T. Donohue deposition, pgs. 20-22). The lounge was crowded with passengers moving between the lounge and the pool area. (E. Donohue deposition, pg. 34). There were people in and around the bar and sitting on the bar stools. (S. Cummiskey deposition, pg. 20). When plaintiff reached a point directly in front of the bar, she turned left, stepping onto the tile portion of the floor. (T. Donohue deposition, pg. 24). As she did so, she slipped and fell to the floor, injuring her right ring finger and pinky.¹ (S. Cummiskey deposition, pgs. 21, 24). At the time of the accident, the vessel was riding "nice and smooth" (Deposition of E. Donohue, sworn to September 22, 1988, pg. 21 (hereafter E. Donohue deposition)), the lounge area well-lighted. (Deposition of T. Donohue sworn to September 22, 1988, pg. 20 (hereafter T. Donohue deposition)).

Plaintiff stated she did not see anything on the floor prior to her fall. (S. Cummiskey deposition, pg. 34). Immediately following the accident, her companions observed that the tile floor where plaintiff fell and the adjacent rug were wet. (E. Donohue deposition, pg. 42, T. Donohue deposition, pg. 28). Plaintiff also noticed that the side of her leg was wet, but was unable to identify the nature of the sticky substance. (S. Cummiskey deposition, pg. 34). One of her companions stated that she noticed the rug was wet in different places on occasions prior to the plaintiff's fall. (Id., p. 28).

After plaintiff's fall, an unidentified individual wearing a uniform assisted plaintiff to her feet. (E. Donohue deposition, pgs. 45-49). While assisting her, the uniformed person apologized, stating "I am really sorry the floor is wet. I'm sorry." (Id., p. 49). In her deposition, Tara Donohue described the uniformed person as follows:

Q: Can you describe this person for me, this guy?

A: He was a foreigner. I don't know exactly what he was because they were all foreigners.

Q: Light skinned, dark skinned?

A: I don't know. Medium.

Q: Medium coloring?

A: Dark, probably.

Q: Which is it?

A: Dark. Not really dark. Medium.

Q: Medium dark?

A: Yes.

Q: What color was his hair; do you recall?

A: No, I don't.

Q: Do you recall what he was wearing?

A: A maroon jacket.

Q: Like a suit coat like I have on?

A: No. Like a uniform, a ship uniform. What everybody else was wearing.

Q: Maroon?

A: I think it was maroon.

Q: Did he have a tie on?

A: I don't remember.

Q: What color were his pants?

A: I don't remember.

Q: Were there any markings on his jacket?

A: I don't remember. (T. Donohue deposition, pgs. 30-31)

Ellen Donohue's description was similar:

Q: What did this person look like?

A: Foreign.

Q: What does that mean?

A: He had an accent and he was dark.

Q: Dark complexion?

A: Yes.

Q: What color was his hair?

A: I don't remember. Apparently it was black.

Q: How tall was he?

A: I don't know.

Q: What kind of accent did he have?

A: I don't know.

Q: Can you describe anything else about him?

A: He had a uniform on.

Q: What kind of uniform?

A: A red top and black pants, a red jacket.

Q: What kind of red top?

A: A red jacket.

Q: You mean like a suit coat?

A: Yes.

Q: What color shirt?

A: I think it was white.

Q: Did he have a tie on?

A: I don't remember.

Q: Was there any type of identification on his red jacket?

A: I don't remember. (E. Donohue deposition, pgs. 45-8).

Approximately fifteen minutes later a ship nurse arrived and took plaintiff to the ship's infirmary (S. Cummiskey deposition, pg. 25). The ship's physician, Dr. Constantin I. Plesa, treated plaintiff by cleaning and bandaging the open wound on her ring finger and by wrapping it in gauze and placing it in a splint. (Id., p. 26). Plaintiff alleges that she was in considerable pain throughout the day and night; she returned the next day to see Dr. Plesa for pain relief medicine. (Id., p. 27).

When the ship pulled into port in Bermuda the day after the accident, plaintiff did not seek further medical assistance on shore, claiming that she was in too much pain to make such arrangements. (Id., p. 28). Furthermore, plaintiff neither requested help from the ship to take her ashore for medical assistance nor did she request the ship personnel to make any arrangements for her to return to New York for treatment. (S. Cummiskey deposition, pg. 28). Plaintiff does concede, however, that Dr. Plesa "may have indicated to plaintiff that she seek treatment in Bermuda...." (Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment, February 15, 1989, pg. 6).

DISCUSSION

Federal Rule of Civil Procedure 56 states, in relevant part, that summary judgment shall be "rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of fact and that the moving party is entitled to judgment as a matter of law."

Despite the general reluctance of courts to grant summary judgment in negligence cases, the mere fact that this case involves a claim of negligence does not preclude granting of summary judgment. Berry v. Atlantic Coast Line R.R., 273 F.2d 572, 582 (4th Cir.), cert den, 362 U.S. 976, 80 S.Ct. 1060, 4 L.Ed.2d 1011 (1960); Haugen v. United States, 492 F.Supp. 398, 400 (E.D.N.Y.), aff'd without opinion, 646 F.2d 560 (2d Cir.1980). In considering a motion for summary judgment, it is not the role of a court to resolve disputed issues of genuine fact but to assess whether there are any factual issues to be tried while drawing reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1985); Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986), cert. den, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987); Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir.1985).

The Supreme Court has held that "in the face of the defendant's properly supported motion for summary judgment, the plaintiff cannot rest on his allegations ... to get to a jury without `any significant probative evidence tending to support the complaint.'" Anderson, 477 U.S. at 249, 106 S.Ct. at 2511 (quoting, in part, from First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)).

For the purposes of the instant motion, we must resolve the following three issues: First, whether defendants had actual or constructive notice of wetness on the floor; second, whether the opinion of plaintiff's expert witness raises any genuine issue of fact in dispute; and finally, whether defendants may be held liable for the negligent conduct of the ship's physician. These issues are addressed in turn.

Standard of Care: Notice of Wetness

The first issue we address is whether plaintiff has presented sufficient evidence to indicate a factual dispute with regard to the alleged negligent failure of defendants to foresee and correct the wetness problem in the bar. The standard of care applied in cases involving maritime injuries is "reasonable care under the circumstances." Monteleone v. Bahama Cruise Line, Inc., 838 F.2d 63, 64-65 (2d Cir.1988); Rainey v. Paquet Cruises, Inc., 709 F.2d 169, 172 (2d Cir.1983); see also Kermarec v. Compagnie Generale, 358 U.S. 625, 631, 79 S.Ct. 406, 410, 3 L.Ed.2d 550 (1959). The degree of reasonable care necessary on the ship is determined by the extent to which the circumstances surrounding the particular maritime travel in question are different from those encountered in daily life. Rainey, 709 F.2d at 172. In this case, the conduct of the defendants is measured against a standard of ordinary reasonable care because...