Eckert v. The City of New York
| Decision Date | 11 January 2022 |
| Docket Number | 19 Civ. 2825 (PAE) |
| Parties | STEVEN C. ECKERT, Plaintiff, v. THE CITY OF NEW YORK, Defendant. |
| Court | U.S. District Court — Southern District of New York |
This is a personal injury action by an officer of the New York Police Department's (“NYPD”) Harbor Unit who hurt his back while pulling a dead body from the East River onto a launch boat. Plaintiff Steven C. Eckert (“Eckert”) brings a negligence claim under the Jones Act, 46 U.S.C. § 30104, and an unseaworthiness claim under general maritime law against the City of New York (the “City”). Eckert's Jones Act claim asserts that a dangerous condition existed aboard the boat the “Launch 622, ” including because the City had not installed equipment that would have limited the strain on his back as he retrieved the body and had not adequately trained him to do so. Eckert's unseaworthiness claim similarly contends that the boat was not reasonably fit for its intended service and that he was inadequately trained.
With discovery complete, the City now moves for summary judgment. It argues that Eckert has failed to raise a triable issue of fact under either claim because there is insufficient evidence that (1) the boat was defective or (2) the boat's condition proximately caused his injury. The Court denies these motions, finding material disputes of fact on each point. The Court, however, grants the City's unopposed motion for summary judgment on a third claim that Eckert brought but now abandons, for maintenance and cure.
On November 3, 2016, Eckert was part of a three-man crew (the “Crew”) on Launch 622 of the NYPD Harbor Unit. Joint 56.1 ¶ 3. Consistent with the Harbor Unit's mission, Eckert's usual responsibilities included patrolling the waterfront, counterterrorism, and rescue operations, i.e., retrieving swimmers in distress, persons aboard disabled or crashed vessels, and bodies of persons who jumped off high points such as bridges. See Grasso Dep. Tr. at 31-32; Eckert Dep. Tr. at 11-12; Dein Aff. ¶ 7. The NYPD Harbor Unit maintains logs that categorize and detail its rescue missions. See Grasso Dep. Tr. at 32-38. Eckert attests that, on an 8-hour shift, a crew commonly responded to six or seven rescue calls. Eckert Dep. Tr. At 12.
Launch 622, a 62-foot-long rescue boat, was equipped with a pike pole (or pipe pole), chains, a swim platform, a stokes basket, two rescue wells, and a davit. Joint 56.1 ¶¶ 20-21; Pl. 56.1 ¶ 40; Def. Resp. 56.1 ¶ 40; Wiker Supp. Rep. at 2 fig. 1, 6 fig. 2, 13 fig. 9, 23 fig. 18. A pike pole is a 6- to 10-foot pole with hooks at its tip used to grasp floating objects, including bodies, and bring them close to the boat. See Dein Rep. at 3 fig. 3; Eckert Dep. Tr. at 26. Chains serve a similar purpose. See Guldner Rep. at 10 fig. 3. The swim platform on Launch 622 was an 80 by 29-inch metal plate in the rear (or stern) that could be unfolded and lowered to water level. Wiker Supp. Rep. at 21 fig. 17. The lowered swim platform was accessible through two doors that created a 63-inch opening. Id. at 19 fig. 15. A stokes basket is a human-sized plastic basket that can be used to retrieve floating bodies. See Guldner Rep. at 15 fig. 12. The parties dispute whether Crew members were trained for its use, but agree that it was not used on the night of November 3, 2016. Pl. 56.1 ¶ 40; Def. Resp. 56.1 ¶ 40. A rescue well is a cavity on the boat's side at water level, to assist in the retrieval of persons in the water. Wiker Supp. Rep. at 23 fig. 18. The parties dispute whether the rescue well was usable on November 3, 2016, see Pl. 56.1 ¶ 31; Def. Resp. 56.1 ¶ 31, but agree that it was not used that night, see Joint 56.1 ¶¶ 14-16. A davit is a small crane. Wiker Supp. Rep. at 6 fig. 2, 11 fig. 7.
Launch 622 was not equipped with a Jason's cradle. Joint 56.1 ¶ 22. A Jason's cradle is, in essence, a strong plastic net, Guldner Rep. at 15 fig. 11. It is lifted from the water by human force, a davit, or other onboard devices. See Guldner Rep. at 13-15 figs. 7-8, 10-12.
At approximately 8 p.m. on November 3, 2016, the Crew was notified of a 911 call that a person had jumped off the Throgs Neck Bridge into the East River. Joint 56.1 ¶¶ 6-8. The Crew arrived at the location at approximately 8:30 p.m. After a 20-minute search, the Crew spotted the jumper's floating body. Id. ¶¶ 9-11. While police officer Joe Catuosco (“Catuosco”) piloted the boat, Eckert and police officer Adam Gonzalez (“Gonzalez”) together attempted to bring the body aboard. Id. ¶¶ 4-5, 13-14. Eckert and Gonzalez first used the pike pole to bring the body closer to the boat while Gonzalez opened the stern doors and lowered the swim platform. Id. ¶ 15. Eckert and Gonzalez then pulled the body onto the platform and onto the boat together. See id. ¶¶ 14-17.[2] The body was male and had no clothing except pants. The jumper was already dead when loaded onto the boat. See Eckert Dep. Tr. at 24 (); id. at 38 (); Gonzalez Dep. Tr. at 28 (); id. at 34 (“I believe it was a male.”).[3]
Eckert attested that this effort took several attempts due to the body's weight and waves rocking the boat, and that he had to bend over while standing with one leg on the swim platform and the other inside the boat. Pl. 56.1 ¶¶ 17, 19-20. The parties agree that, during the rescue efforts, Eckert began to complain of back pain. Joint 56.1 ¶ 16. According to Eckert, this pain ran from his middle to his lower back. Eckert Dep. Tr. at 30. Because the body had not been fully brought onto the boat, Eckert kept laboring in pain for an estimated additional five to six minutes. Id. at 34-35. The Crew offloaded the body at Fort Schuyler in the Bronx-an effort in which Eckert could not participate because his pain had intensified, id. at 36-37-and returned the boat to Base Adam, Queens, Joint 56.1 ¶¶ 17-18. From there, an ambulance took Eckert to Booth Hospital for emergency treatment. Id. ¶ 19; Eckert Dep. Tr. at 42.
Shortly after his release from the hospital, an orthopedist examined Eckert and found two herniated discs, a bulging disc, and impinged nerves. Eckert Dep. Tr. at 48-49. Eckert received six months of physical therapy, pain medications, and epidural injections to manage his pain. Id. at 49-52. When none of those measures relieved his abiding pain, Eckert received a laminectomy-a surgical procedure removing bone material pinching nerves in the spinal region-in August 2017. Id. at 52-54. This, too, failed to alleviate Eckert's pain. Id. at 53-54. As of his deposition on December 18, 2019, Eckert's physician was considering recommending a spinal implant. Id. at 54. At the NYPD Harbor Unit, Eckert returned to non-exertive desk jobs, id. at 59-60, until his retirement in 2018, id. at 10.
On March 29, 2019, Eckert filed the Complaint. Dkt. 1 (“Compl.”). It brought a negligence claim under the Jones Act, an unseaworthiness claim under general maritime law, and a claim for maintenance and cure for Eckert's medical expenses.[4] On April 22, 2019, the City filed an Answer. Dkt. 7. On July 9, 2019, the Court held an initial conference and, on July 10, 2019, approved a case management plan. Dkt. 14. Numerous extensions of fact and expert discovery followed, including due to the pandemic; expert discovery closed on April 13, 2021. See Dkts. 17, 21, 24, 33, 39, 42, 44, 47. On April 21, 2021, the Court held a conference and set a briefing schedule for the City's anticipated motion for summary judgment. Dkt. 49.
On May 12, 2021, the parties filed a Joint 56.1 statement. Dkt. 50. On June 4, 2021, the City filed its motion for summary judgment, memorandum of law, a proposed statement of undisputed facts, and supporting declarations and exhibits, including the report of its expert, Richard Dein. Dkt. 51.[5] On June 25, 2021, Eckert filed his opposition to the City's summary judgment motion, a proposed statement of undisputed facts, and supporting declarations and exhibits, including the reports of his experts, Thomas Guldner and Dr. Steven Wiker. Dkts. 5557. On July 9, 2021, the City filed a reply (“Reply”). Dkt. 58.
Central to the City's motion for summary judgment are the parties' expert opinions. The Court therefore summarizes them in detail.
1. The Guldner Report
Eckert's first expert is Thomas Guldner, a former lieutenant with the New York City Fire Department (“FDNY”) with longtime experience as an officer in charge of the FDNY's fire and rescue boats. Guldner Rep. at 2. He is a participating member of the Society of Naval Architects and Marine Engineers' panels on fishing vessel operations and safety, and on small working vessel operations and safety. Id. He is also a principal member of the National Fire Protection Association's Technical Committee on Merchant Vessels. Id. Guldner has published articles and spoken at conferences on rescue boat operations. Id. He worked as a consultant for the FDNY on the design of two of its recent rescue boats. Id. at 2-3.
Guldner's report sets out the NYPD's current standard procedures for retrieving bodies: first, a single officer is to grasp the body with the pike pole and bring it close to the boat second, two officers were to wrap recovery chains around the body and lift it onto the swim platform. Id. at 3. Due to rough weather the night of November 3, 2016, Eckert and Gonzalez did not use the recovery chains, but rather pulled the body aboard using their hands. Issues that obstructed Eckert's mission, Guldner opines, were that (1) Eckert, pike pole in hand, had to awkwardly step around the davit...
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