Kloner v. United States

Decision Date21 July 2016
Docket Number13-CV-3171 (MKB)
Parties William KLONER and Elizabeth Kloner, Plaintiffs, v. The UNITED STATES of America, Defendant.
CourtU.S. District Court — Eastern District of New York

Steven Sanford Honigman, New York, NY, for Plaintiffs.

Joseph Anthony Marutollo, Kathleen Anne Mahoney, United States Attorneys Office, Brooklyn, NY, for Defendant.

MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge

Plaintiffs Rabbi William Kloner and his wife, Elizabeth Kloner, commenced this action on June 3, 2013 against Defendant the United States of America, alleging negligence in violation of the Federal Tort Claims Act (the "FTCA"). (Compl., Docket Entry No. 1.) On December 4, 2015, Defendant moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Def. Mot. for Summ. J ("Def. Mot.")., Docket Entry No. 29; Def. Mem. of Law in Supp. of Def. Mot. ("Def. Mem."), Docket Entry No. 30; Def. Reply Mem. of Law in Further Support ("Def. Reply"), Docket Entry No. 39.) For the reasons set forth below, the Court denies Defendant's motion for summary judgment.

I. Background

Plaintiffs seek damages for injuries they sustained as a result of Rabbi Kloner's fall from a staircase during a United States Coast Guard ("USCG") retirement ceremony. (Pl. Mem. in Opp'n to Def. Mot. ("Pl. Mem.") 5, Docket Entry No. 33.) The USCG retirement ceremony took place on June 24, 2010, in the music hall of the Snug Harbor Cultural Center and Botanical Garden ("Snug Harbor"), a privately owned space in Staten Island. (Compl. ¶ 14.)

a. Arrangements leading up to the USCG ceremony

On February 18, 2010, the USCG and Snug Harbor entered into a rental agreement that permitted the USCG to use the music hall during its upcoming New York Change of Command and Retirement Ceremony.1 (Def. Statement of Undisputed Facts Pursuant to Local R. 56.1 ("Def. 56.1") ¶ 1, Docket Entry No. 31.) The rental agreement stated that the USCG was barred from making "[a]ny alterations and/or attachments to the floors, wall or stages," (id. ¶ 6), and further stated that "[a]ll uses of [Snug Harbor's] facilities, equipment (regardless of ownership), and all procedural aspects of the program are subject to the supervision, rules, regulations, policies and procedures of [Snug Harbor], which has the exclusive right to determine what shall constitute a proper and safe conduct and use of its facilities," (id. ¶ 7). Elsewhere, the rental agreement explicitly permitted temporary alterations in connection with, for instance, weddings at the venue. (Snug Harbor Facility Agreement ¶ 19, annexed to Decl. of Joseph A. Marutollo ("Marutollo Decl.") as Ex. A, Docket Entry No. 32.)

Commander Carissa April, the head of planning and primary point of contact for the USCG event, made "four or five visits" to the Snug Harbor Music Hall while planning and preparing for the retirement ceremony. (Statement of Carissa April ("April Statement") 1, annexed to Decl. of Steven S. Honigman ("Honigman Decl.") as Ex. E, Docket Entry No. 37.)2 The day before the ceremony, the USCG held a "full rehearsal" at the Music Hall with all ceremony participants except Rabbi Kloner and the other clergy member participant, Monsignor Dorney. (Id. ) During the rehearsal, members of the ceremony's "Official Party" were escorted to the stage by ushers, in part because of the bridge-like structure of the staircase that crossed over the musician's pit. (Statement of Kenneth Schnetzler ("Schnetzler Statement"), annexed to Honigman Decl. as Ex. H.) Commander April and her colleagues decided to provide the clergy with an unofficial escort, "New York Sector VIP Coordinator" Ydania Matos, "as a measure of safety and comfort" at the event. (Dep. of Carissa April ("April Dep.") 75:2-14, annexed to Honigman Decl. as Ex. C, Docket Entry No. 36.) According to Commander April, "[the clergy's] path to the stage [via the main staircase] was assumed," (Id. at 45:18-19), because they had Matos as an escort and because, as more informal members of the ceremony, they would be seated on the stage before the ceremony began, (id. at 45).

The main staircase was configured as a stand-alone unit without hand rails, and it ascended over an orchestra pit and onto the theater stage. (Def. 56.1 ¶ 12.) The stair structure consisted of two three-riser staircases to the left and right sides of a platform, leading to a platform landing. (Sector New York Admin. Investig. ("USCG Investigation") 4, annexed to Compl. as Ex. F.)3 That landing, approximately four feet wide, then turned toward the stage. (Id. at 12.) The next stair led to another platform that appeared to cross the majority of the orchestra pit, and the final stair was steeper than the platform step before it. (Id. at 4; Pl. Reply 56.1 ¶ 11.) The final stair also had a walking surface with a five-inch "lip" or drop-off, which required a person to step down onto the stage floor. (USCG Investigation 6, 8.)

As depicted in photographs later taken by a USCG investigating officer, and as noted by Commander April and by Plaintiffs' expert in the expert's report, two other sets of enclosed staircases, behind doors, also led from the floor to the left and right sides of the stage. (See USCG Investigation 2; April Statement 1 ("How [the clergy] would get to the stage was not discussed, but they could (and in hindsight should) have used the side staircase access to the back/offstage wings ...."); Architect's Report on the Rabbi William Kloner's Fall ("Pl. Expert Report") 6, annexed to Honigman Decl. as Ex. B, Docket Entry No. 35.) Both Matos and the USCG's four-person Color Guard used the side stairs leading backstage at points throughout the ceremony. (Dep. of Ydania Matos ("Matos Dep.") 53:21-24; 56:14-21, annexed to Honigman Dep. as Ex. A, Docket Entry No. 35; April Statement 1.) Snug Harbor officials had assured the USCG that the main stage staircase was "safe to use" and that it had "always been used without incident" despite the absence of protective guardrails. (Def. 56.1 ¶¶ 13-14.)

b. Operational risk management procedures

Since at least 1999, the USCG has adhered to a standardized set of instructions known as Operational Risk Management ("ORM") procedures. (See Commandant Instruction 3500.3 ("ORM Procedures"), annexed to Honigman Decl. as Ex. F.) The procedures comprise a policy of continuously assessing and managing risks, which policy applies to "every command level and every person" during "[a]ll Coast Guard missions and daily activities, both on- and off-duty." (Id. at CG 51.)4 In general, personnel are instructed to evaluate risk based on severity, probability and exposure, and to employ decision-making principles in executing jobs that contain any amount of risk. (Id. at CG 53-55.) Such decision-making principles include "identify[ing] options" by asking "[w]hat options can eliminate unacceptable risk? What options reduce undesirable risk? ... What new options should we consider?" (Id. at CG 61.) Commander April performed an ORM assessment before the USCG retirement ceremony on June 24, 2010. (April Dep. 31:4-19.) Commander April stated that "[o]perational risk management is part of [the USCG] culture in everything we do. Every day we are performing risk management, operational or otherwise." (Id. at 30:15-18.)

c. The June 24, 2010 incident

At the time of the UCSG retirement ceremony, Rabbi Kloner was an 82-year-old retired Rear Admiral of the New York Naval Militia. (Def. 56.1 ¶ 8; Pl. Statement of Undisputed Facts Pursuant to Local R. 56.1 ("Pl. 56.1") ¶ 8, Docket Entry No. 34.) The Rabbi also "provid[ed] Jewish Worship Service" pursuant to a civilian contract with USCG, for which he was paid an annual salary of $9,999.96.5 (Def. 56.1 ¶ 9.) The USCG asked Rabbi Kloner to offer an invocation at the retirement ceremony because of his contract with USCG and because he was a personal and professional friend of the retiring captain who was being celebrated that day. (Def. 56.1 ¶ 21; Compl. ¶ 15.)

On the day of the ceremony, Rabbi Kloner wore his service Dress White "choker" uniform to Snug Harbor. (Def. 56.1 ¶ 10.) Commander April had never met the Rabbi and was not aware of his age or his retired military status. (April Statement 1.) The Rabbi was greeted by Matos, who escorted him to the wooden staircase in front of the stage, (Def. 56.1 ¶ 11), and accompanied him up the staircase and on to the stage, (id. ¶ 15). There, Matos showed Rabbi Kloner his seat and podium assignment for the ceremony. (Id. ¶ 16.) Rabbi Kloner then expressed a desire to descend the stage staircase to the ground floor in order to meet with acquaintances in the audience before the start of the ceremony. (Id. ¶ 17.) Matos escorted Rabbi Kloner down the stage staircase and left him on the ground floor while she attended to official duties at the VIP check-in table. (Id. ¶ 18.) Matos testified during her deposition that she had informed Rabbi Kloner that she would "come and get [him] when it's time to start," (Matos Dep. 24:13-18), and that he "acknowledged" her statement by nodding,6 (id. 24:19-25:6).

Shortly thereafter, the Master of Ceremony ("MC") proceeded to the main stage to announce the "officer's call," requesting that all standing guests take their seats. (Id. ¶ 19.) Rabbi Kloner made his way to the stage staircase and began to ascend on his own, as Matos helped the just-arrived Monsignor to his seat on the stage. (Id. ¶ 26.) As the Rabbi approached the final step near the top of the staircase, he lost his balance and fell to his left, into the open-air orchestra pit. (Id. ¶ 28.) He fell six and a half feet to the bottom of the pit. (Id. ¶ 29.) Two USCG medical officers and Sector New York medical staff provided emergency medical services to the Rabbi "within seconds of the fall." (USCG Investigation 15.) Police and emergency medical service technicians arrived approximately fifteen minutes later, and within minutes of one another. (Id. ) Rabbi Kloner was transported to a waiting...

To continue reading

Request your trial
11 cases
  • Tigano v. United States
    • United States
    • U.S. District Court — Eastern District of New York
    • 22 Marzo 2021
  • Manning v. Esper
    • United States
    • U.S. District Court — District of Columbia
    • 22 Enero 2019
  • Chery v. Conduent Educ. Servs., LLC
    • United States
    • U.S. District Court — Northern District of New York
    • 20 Enero 2022
  • Tigano v. United States
    • United States
    • U.S. District Court — Eastern District of New York
    • 22 Marzo 2021
    ...been assumed." Anson v. United States, 294 F. Supp. 3d 144, 162 (W.D.N.Y. 2018) (collecting cases); see also Kloner v. United States, 196 F. Supp. 3d 375, 386 (E.D.N.Y. 2016) ("An assumed duty arises 'only where (1) the failure to exercise due care increases the risk of harm to the plaintif......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT