Diaz v. US

• Decision Date: 11 March 1987
• Docket Number: Civ. A. No. 85-799-N.
• Citation: 655 F. Supp. 411
• Parties: Ricardo DIAZ, Plaintiff, v. UNITED STATES of America and Tide-water Maintenance Specialties, Inc., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

655 F. Supp. 411

Ricardo DIAZ, Plaintiff, v. UNITED STATES of America and Tide-water Maintenance Specialties, Inc., Defendants.

Civ. A. No. 85-799-N.

United States District Court, E.D. Virginia, Norfolk Division.

March 11, 1987.

Ralph Rabinowitz, Norfolk, Va., for plaintiff.

Richard K. Williard, Asst. Atty. Gen., Justin W. Williams, U.S. Atty., Raymond A. Jackson, Asst. U.S. Atty., Norfolk, Va., Benjamin L. Willey, Thomas W. Osborne, Trial Attys., Torts Branch, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for defendants.

MEMORANDUM

WALTER E. HOFFMAN, Senior District Judge.

The plaintiff seeks to recover damages for personal injuries sustained when he slipped and fell in a passageway while on board the U.S.S. DWIGHT D. EISENHOWER, CVN 69, (the EISENHOWER). The plaintiff brings this action under the Public Vessels Act, 46 U.S.C. §§ 781-790, and Admiralty Rule 9(h).

Facts

The plaintiff retired from the U.S. Navy in November of 1981 as a master chief, mass management specialist (E-9) after 21 years of duty. Shortly thereafter the plaintiff opened Rick Diaz Restaurant Equipment and Supplies, a sole proprietorship.

On the morning of January 4, 1984, the plaintiff boarded the EISENHOWER, then docked in the Norfolk Naval Shipyard, Portsmouth, Virginia, to discuss the sale of restaurant equipment with Navy personnel. The plaintiff initially met with Lt. James B. Brinkman in the S-8 division office (a supply office), and then proceeded to the S-2 division office (the food service office), to meet with a Warrant Officer Vinas. Vinas then directed MS-3 Michael C. Cupp to escort the plaintiff to the supply storeroom to obtain a list of items desired for purchase. The supply storeroom is one deck below and several compartments forward of the S-2 division office. En route to the supply storeroom, the plaintiff and Cupp had to pass through a passageway in which the entrance to the legal office was located.¹

As the plaintiff and Cupp approached the entrance to the passageway, both noticed that work was being done to the deck at the far end of the passageway on the right (starboard) side. PN-3 John J. Lynch was stripping the wax from the deck of the passageway in preparation for an inspection. Ms. Deborah Williams Hurst,² an employee of Tidewater Maintenance Specialties, Inc. (Tidewater), was in the passageway instructing Lynch on the proper use of her company's wax stripper, "Excel-A-Rate." Tr. pp. 77, 96. Lynch had met Hurst when she boarded the EISENHOWER and escorted her to the passageway in which the entrance to the legal office was located. Hurst had noticed that Lynch was using the Navy issue stripper and informed him that the use of "Excel-A-Rate" offered an easier method of stripping the wax than the Navy issue stripper. Because Lynch had never used "Excel-A-Rate," Hurst instructed Lynch on the proper ratio of "Excel-A-Rate" to water and the proper amount of this mixture to put on the deck. Lynch testified that, at Hurst's direction, he put down more of the "Excel-A-Rate" mixture than he would have of the Navy issue stripper. Tr. p. 83. The left (port) side of the deck had already been stripped and was being kept open for use. Stripping one side of the passageway and then the other, so that one side would remain passable, was the method adopted by the Navy for simultaneously stripping high use passageways and keeping them open for use. The passageway was approximately four feet wide.

After about fifteen minutes of working on the deck on the starboard side, and some fifteen minutes before the accident, Lynch and Hurst noticed that the "Excel-A-Rate" mixture began to flow onto the port side. While continuing to agitate the "Excel-A-Rate" mixture on the starboard side, Lynch attempted to mop up the "rivulets" on the port side. Tr. p. 71. While Lynch and Hurst slipped but did not fall, both were standing in the stripper on the starboard side. It is not clear why the liquid ran onto the port side. There is testimony that the one degree list of the EISENHOWER on January 4, 1984, would not be sufficient to make liquid run on a ship that large; however, several witnesses attribute the rivulets on the port side to the listing of the vessel.

Plaintiff concedes that he and Cupp were warned, although there is some disagreement as to the words used by Lynch. Lynch stated, in effect, to the plaintiff and Cupp as they began down the passageway, "Watch your step, the deck is slippery." Cupp Dep. p. 7; Tr. p. 71. The plaintiff, following closely on Cupp's heels, noticed the work being done to the right of Cupp. The plaintiff and Cupp continued to talk back and forth about their business as they walked down the passageway. Cupp, leading the way, did not notice the "rivulets" on the port side prior to the accident. Approximately twenty feet into the passageway, the plaintiff slipped and fell, landing directly on his elbows. Tr. p. 23. The plaintiff did not see the "Excel-A-Rate" mixture on the port side until he saw it under him as he began to fall. Id.

As a result of the fall, the plaintiff suffered a small fracture of a bone spur in the right elbow. The bone spur pre-existed the accident. Additionally, the plaintiff has complained of pain in the left elbow and right shoulder. The plaintiff first discussed the pain in his left elbow on March 23, 1984, on a follow-up appointment with his orthopedist, but did not mention the pain in his shoulder until August 6, 1984. The medical history suggests that the pain in the shoulder may be associated with the original injury, although there is no direct correlation to the fall on January 4, 1984. Meade Dep. p. 14. On February 5, 1985, the plaintiff was admitted for surgery. Both elbows were operated on and thickened bursa and bone fragments, in addition to the bone spurs, were removed from both elbows.³ The plaintiff received some relief from the pain he complained of prior to the operation, but according to his testimony still suffers discomfort, sometimes extreme, especially when lifting heavy objects. The plaintiff is slightly restricted in his activity, letting pain dictate the activity in which he may engage, particularly with regard to lifting.

The plaintiff contends that the government was negligent in failing to take corrective action concerning an unreasonable risk of harm, despite the open and obvious nature of the danger under the standard set forth in Scindia Steam Navigation Company, Ltd. v. DeLos Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981). The plaintiff further complains that both defendants created the unsafe condition, had actual knowledge of the existence of the unsafe condition and the foreseeability of injury as a result thereof, and failed to give a warning sufficient to fulfill their duty of due care under the circumstances.

Admiralty Jurisdiction as to Tidewater

The Court's attention is initially directed to the question of whether admiralty jurisdiction is properly exercised in this instance. Tidewater questions whether the harm the plaintiff complains of "bears a significant relationship to traditional maritime activity." Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 269, 93 S.Ct. 493, 505, 34 L.Ed.2d 454 (1972). In defining "traditional maritime activity," the Fourth Circuit expanded upon the Executive Jet decision in Oman v. Johns-Manville Corporation, 764 F.2d 224, 230 (4th Cir.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 351, 88 L.Ed.2d 319 (1985), and suggested consideration of the following factors: "(1) the function and roles of the parties; (2) the types of vehicles and instrumentalities involved; (3) the causation and type of injury; and (4) traditional concepts of the role of admiralty law." Applying these four factors, the Court is convinced that Tidewater's involvement does not bear a significant relationship to traditional maritime activity, although the Public Vessels Act permits the application of admiralty concepts with respect to the United States of America.

First, the function and roles of the parties do not support admiralty jurisdiction. The plaintiff is involved in the restaurant equipment and supply business. Tidewater is in the maintenance equipment and supply business. Neither of these businesses are intimately intertwined with maritime activity. While each may chose to do business with enterprises connected with maritime activity, unless the business itself is particularly related to maritime matters or a vessel, the function and roles of the parties is no different from those which occur on dry land.⁴ While sailors traditionally strip the deck on a regular basis, servicemen in all branches of the armed forces may be said to do the same. It would be difficult to conclude that the skills involved here evidence any talent solely within the knowledge of sailors. See, Oman, 764 F.2d at 230-31.

"The mere fact that the injury occurred on a boat, of course, does not dictate the application of admiralty." Bubla v. Bradshaw, 795 F.2d 349, 352 (4th Cir.1986). In this instance, the fact that the accident occurred on the ship is merely fortuitous. The accident is not predicated upon factors which possess a uniquely maritime character, but rather upon instrumentalities which would be exactly the same if the plaintiff had been walking down a hallway in any building on land.

The cause and type of injury does not support the application of admiralty jurisdiction. This cause arises from a classic slip and fall injury, in which the possible contributing factors bear no intimacy with maritime experience. The one degree list of the EISENHOWER on the day in question, which might have some relationship to maritime conditions, was eliminated as a contributing factor.

Last, there is no nexus between the traditional concept of the role of admiralty law and the resolution of this dispute. The Court is cognizant that "through long experience, the law of the sea knows how to determine whether a particular...