Gravatt v. City of New York

• Decision Date: 24 May 1999
• Docket Number: No. 97 Civ. 0354(RWS).,97 Civ. 0354(RWS).
• Citation: 53 F.Supp.2d 388
• Parties: Steven GRAVATT and Delores Gravatt, Plaintiffs, v. The CITY OF NEW YORK, Simpson & Brown, Inc., N. Massand, P.E., L.S., P.C., a/k/a Nanik Massand, P.E., Barge "ABC" and Barge Def, their engines, boilers, tackle, etc., in rem, Defendants.
• Court: U.S. District Court — Southern District of New York

53 F.Supp.2d 388

Steven GRAVATT and Delores Gravatt, Plaintiffs, v. The CITY OF NEW YORK, Simpson & Brown, Inc., N. Massand, P.E., L.S., P.C., a/k/a Nanik Massand, P.E., Barge "ABC" and Barge Def, their engines, boilers, tackle, etc., in rem, Defendants.

No. 97 Civ. 0354(RWS).

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

May 24, 1999.

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Waesche, Scheinbaum & O'Regan, P.C., New York City, by Nicholas P. Giuliano, William Bennett, III, Claurisse Campanale-Orozco, of counsel, for plaintiffs.

Chalos & Brown, New York City, by Robert J. Seminara, Fred Wexler, of counsel, for defendant City of New York.

Freehill, Hogan & Mahar, New York City, by John J. Walsh, of counsel, for defendant Simpson & Brown, Inc.

Baer Marks & Upham, New York City, by Eugene R. Scheiman, Daniel J. Friedman, of counsel, for defendant N. Massand.

OPINION

SWEET, District Judge.

Plaintiffs Steven Gravatt ("Gravatt") and his wife Delores Gravatt ("Mrs.Gravatt") (collectively the "Gravatts") have moved under Rule 52(b), Fed.R.Civ.P., to amend the opinion filed in this action on March 3, 1999 (the "Opinion") directing judgment in favor of the Gravatts against defendants the City of New York (the "City") Simpson & Brown, Inc. ("S & B"), the employer of Gravatt, and N. Massand, P.C. ("Massand") an engineering firm (collectively the "Defendants") and in favor of the City on its cross-claim for indemnity against S & B and Massand and dismissing Massand's cross-claim against S & B.

The Defendants have opposed the motion which will be granted for the reasons set forth below. A revised opinion will be filed to reflect the conclusions reached below.

Prior Proceedings

Gravatt's injury on January 31, 1996, while employed as a dock worker for S & B on a job for the City, engineered by Massand, gave rise to this action, the complexity of which far exceeds the relatively simple facts surrounding the injury to Gravatt's ankle. The proceedings prior to the Opinion, which regrettably failed to resolve all the issues presented, were set forth in the Opinion, pages 2-4, see Gravatt v. The City of New York, 1999 WL 111922 (S.D.N.Y. March 3, 1999), and familiarity with that Opinion and all prior decisions is presumed. See Gravatt v. The City of New York, 1997 WL 419955 (S.D.N.Y. July 28, 1997); Gravatt v. The City of New York, 1998 WL 171491 (S.D.N.Y. April 10, 1998); Gravatt v. The City of New York, 1998 WL 341941 (S.D.N.Y. June 26, 1998); Gravatt v. The City of New York, 17 F.Supp.2d 247 (S.D.N.Y.1998); Gravatt v. General Star Indemnity Co., 1998 WL 842351 (S.D.N.Y. December 2, 1998); Gravatt v. General Star Indemnity Co., 1999 WL 212681 (S.D.N.Y. April 13, 1999).

The Opinion was rendered after a trial of over ten trial days during which the testimony of nineteen witnesses was taken and hundreds of exhibits were introduced.

The instant motion to amend certain of the findings of fact and conclusions of law contained in the Opinion was heard and considered fully submitted on April 21, 1999.

Contributory Negligence Cannot be Attributed to Gravatt

The facts found with respect to Gravatt's contributory negligence were as follows:

Gravatt contributed to his injuries. Although four drafts had been successfully removed prior to the accident, it was unsafe to use timber tongs to move the old pilings. Gravatt as an experienced dock worker knew or should have known that the work he was performing with the timber tongs was being done in a hazardous fashion. Further, Gravatt turned his back on the lift as he moved the draft of new lumber. His negligence was attributable to one-third of his injury.

The Opinion, page 413.

After stating the conclusion that the Gravatts were entitled to recover against the City and Massand under §§ 200, 240 and 241 of the Labor Law of the State of New York, and against S & B under § 905(b) of the Longshoreman and Harbor Workers Compensation Act (the "LHWCA") and the maritime law, the Opinion addressed the defense of contributory negligence raised by the Defendants as follows:

As found above, Gravatt was contributorily negligent. He was a journeyman dockbuilder i.e., a qualified and experienced dockbuilder. Although he was following instructions when he attempted to move the pile using just timber tongs, he knew or should have known that the use of timber tongs to lift the pile was unsafe. See Fuszek v. Royal King Fisheries, Inc., 98 F.3d 514 (9th Cir.1996); Jackson v. Lloyd Brasileirs Patrimonio Nacional, 324 F.Supp. 556, 563 (S.D.Tex.1970); Simpson v. Royal Rotterdam Lloyd, 225 F.Supp. 947, 950 (S.D.N.Y.1964).

The Opinion, page 424.

Upon reexamination, the authorities cited require a different conclusion for an employee such as Gravatt performing a task at the specific direction of his employer.

As the Opinion found and the testimony established, and as stated in the companion opinion, Gerhard Holzheuer ("Holzheuer") was the S & B foreman directly supervising Gravatt and his co-worker, Thomas Liming ("Liming"), and Gravatt and Liming were complying with Holzheuer's direction to use timber tongs to move old pilings in order to gain access to a new draft of lumber which was to be moved. The old pilings slipped, the load fell, and Gravatt was consequently struck as set forth in the Opinion at pages 407-408.

A correct interpretation of the cases cited in the Opinion compels the conclusion that an injured worker following the orders of his supervisor is not contributorily negligent, and any award for damages should not thereby be reduced as a consequence of his acts.

In Fuszek v. Royal King Fisheries, 98 F.3d 514 (9th Cir.1996), the plaintiff, a Jones Act seaman, was injured on board a fishing vessel while operating a fish processing machine. The plaintiff reached into the machine while it was operating (a dangerous practice implemented by his employer) and seriously cut his hand. The Court reduced plaintiff's award by twenty-five percent for contributory negligence. The Court of Appeals in reversing held that the plaintiff's recovery should not be reduced because the vessel owner maintained the vessel's equipment in violation of safety regulations. Although Fuszek involved a seaman protected by the Jones Act rather than a harbor worker protected by the LHWCA, it stands for the principle that a worker is not liable for injuries caused by following orders, as does Simpson v. Royal Rotterdam Lloyd, 225 F.Supp. 947 (S.D.N.Y.1964). There the plaintiff was a longshoreman who was injured on the defendant's vessel while unloading cargo in Brooklyn. He fractured his ankle when a 100 pound tin ingot fell on his foot during unloading operations. The Honorable Wilfred Feinberg, then a District Judge, stated "There was no contributory negligence on the part of the plaintiff. He was in the hold working pursuant to instructions." 225 F.Supp. at 950 (emphasis added).

In Jackson v. Lloyd Brasileirs Patrimonio Nacional, 324 F.Supp. 556 (S.D.Tex. 1970), the plaintiff longshoreman was injured when a malfunctioning winch caused the plaintiff to be struck by a 55 gallon drum. The Court found that the plaintiff, like Gravatt, was an experienced worker, that the defendants, like the City, Massand and S & B, knew about the defective practice, and that the plaintiff also knew about the defect. The Court wrote:

In this case Jackson's continued performance of his assigned task — knowing it to be a potentially dangerous one — did not constitute contributory negligence. He was ordered to assume the guide position by his employer's supervisors. If Jackson had refused to perform his assigned task, it is reasonable for this Court to infer that his future employment as a longshoreman in Galveston, Texas, would have been jeopardized. As the accident occurred suddenly and without warning, Jackson did all that he could under the circumstances to protect himself from injury.

324 F.Supp. at 563.

Here, a former shop steward, Matthew Quesada ("Quesada") had complained about safety and believed that he lost his job because of his safety complaints, and Gravatt believed that too. The contract between the City and S & B specifically provided that an employee could be discharged for disobedience. "[W]henever the Commissioner shall inform the Contractor, in writing, that any employee is ... disobedient, he shall be discharged ... forthwith, and shall not again be employed upon it...." Agreement, Chap. VIII, Art. 34, at 56.

In addition, Gravatt and Liming intended to move the old piles with slings instead of tongs but used the tongs because of Holzheuer's order.

In Earl v. Bouchard Transp. Co., Inc., 917 F.2d 1320 (2d Cir.1990), a seaman's case like Fuszek, the plaintiff was a tugboat deckhand injured while following his captain's order. The Honorable Jack B. Weinstein instructed the jury that if the plaintiff was following his supervisor's order, he could not be found contributorily negligent, even if he knew the activity he was ordered to do was dangerous. On appeal, the defendant argued that Judge Weinstein's instruction was fundamental error because the phrase "following orders of his supervisors" was too easily misconstrued. The Court affirmed the judgment and found no error in the jury instruction:

We find no error in Judge Weinstein's instructions, much less "plain error." The instruction on contributory negligence was clearly in accord with the law of this circuit. Indeed, in Darlington v. National Bulk Carriers Inc., 157 F.2d 817 (2d Cir.1946), Judge Frank, writing for a unanimous panel that included Judges Swan and Learned Hand, reversed a defendant's verdict, because the district court had refused to give this substantially similar charge:

"The plaintiff was found to obey the orders of his superiors on board the vessel. The chief officer was the plaintiff's superior and plaintiff was bound to obey the orders of the chief officer. Even though the orders of the chief officer required him to work...