Lee v. Regal Cruises, Ltd., 94 Civ. 7687 (LAK).

• Decision Date: 22 February 1996
• Docket Number: No. 94 Civ. 7687 (LAK).,94 Civ. 7687 (LAK).
• Citation: 916 F. Supp. 300
• Parties: Millicent LEE, et ano., Plaintiff, v. REGAL CRUISES, LTD., et ano., Defendants-Third Party Plaintiffs, v. Milan KUTANOVSKI, Third Party Defendant.
• Court: U.S. District Court — Southern District of New York

916 F. Supp. 300

Millicent LEE, et ano., Plaintiff, v. REGAL CRUISES, LTD., et ano., Defendants-Third Party Plaintiffs, v. Milan KUTANOVSKI, Third Party Defendant.

No. 94 Civ. 7687 (LAK).

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

February 22, 1996.

Robert A. Bloom, New York City, for Plaintiffs.

Peter A. Junge, Carol N. Lambos, Lambos & Junge, New York City, for Defendants-Third Party Plaintiffs.

William D. Gallagher, McMahon, Martine & Gallagher, New York City, for Third Party Defendant.

AMENDED MEMORANDUM OPINION

KAPLAN, District Judge.

Plaintiff Millicent Lee slipped on a staircase aboard the REGAL EMPRESS on the night of October 8, 1993 and fractured her left patella. She was evacuated from the ship and, while undergoing a manual manipulation of her left knee under general anesthesia, performed by a physician unconnected with the ship and its owners, sustained a fracture of the left distal femur. She and her husband have brought this action against the ship's owners. The owners have impleaded the treating physician, against whom plaintiffs subsequently made a direct claim. The owners now move for summary judgment dismissing plaintiffs' complaint against them. Plaintiffs in turn cross-move to amend the complaint.

Facts

On the night in question, plaintiff, her husband, and another couple, the Paynes, spent a presumably pleasant evening, dining and watching the entertainment provided on the so-called Cruise to Nowhere aboard the REGAL EMPRESS. They and a third couple had consumed a bottle of champagne with dinner. The Lees and the Paynes proceeded in due course to a jazz concert in the Mermaid Lounge where Mrs. Lee took a glass of white wine. They then left the Mermaid Lounge and descended an interior staircase to the Promenade Deck. Mrs. Lee held the glass of wine in her right hand. When she reached the last or the penultimate step, she twisted her right ankle and fell on her left knee, breaking her patella.

Plaintiffs brought this action on or about September 21, 1994 in the New York Supreme Court.¹ The complaint alleges that the fall was caused by "a defective condition that existed on the stairway" and that the defendants had been negligent "in the ownership, operation, maintenance and control of the aforementioned stairway and steps ..." (Cpt ¶¶ 18-19)

The Court, with the agreement of counsel, entered a scheduling order which required that any amendment of the pleadings be made by February 15, 1995 and, as amended, that discovery be concluded by December 22, 1995.

Mrs. Lee was deposed on March 2, 1995. She testified that the carpeting on the stairs was "older," that the steps had metal stripping on their edges, that it had been raining "quite heavily," and that the ship was pitching. (M. Lee Dep. 43-45, 62) As she descended the steps, she held the bannister "a little bit for balance, because the ship ... was rough." (Id. 66) She then stepped on something that caused her ankle to twist, discovering immediately that the substance in question was "little ice cubes in the melting stages." (Id. 66-67; see also id. 68-69) Mrs. Lee acknowledged that she had no idea how long the ice cubes had been on the steps or how they had gotten there. (Id. 71, 107) This testimony was consistent with a November 16, 1993 written statement that Mrs. Lee gave to the owners in which she also attributed the accident exclusively to water and ice cubes on the steps. (Lambos Aff.Ex.D)

Defendants filed this motion for summary judgment on December 15, 1995. The thrust of the motion is that there was no negligence because there is no evidence as to (1) how the ice cubes came to be on the steps or how long they had been there, and (2) the existence of any defect in the construction or arrangement of the steps. This evidently caused the plaintiffs to rethink their case.

Acknowledging "that an ice cube can melt rather quickly and that the plaintiffs could not truthfully say how long the particular ice cube on which Mrs. Lee slipped was present" (Pl.Mem. 7), plaintiffs cross-moved to amend the complaint to assert the following theories of liability:

1. The sea and weather conditions were so unstable that the owners had a duty to issue special warnings and to supervise passengers as they moved about the ship.

2. The construction of the bannister was defective in that it was affixed to the wall with brackets that made it difficult or impossible to obtain a firm grip.

3. The allegedly worn condition of the carpet and the metal stripping on the lips of the steps contributed to the accident.

4. The rainy weather created a duty to inspect the stairs for wetness and slickness.

5. The owners breached the alleged duty to inspect the stairwell for rain, spilled drinks and ice cubes.

Defendants, perhaps understandably, oppose leave to amend. They suggest, implicitly, that plaintiffs newly proposed theories are fictional. They point out that the ship's log described sea and wind conditions as good and the weather as "light rain." (Lambos Aff.Ex.A) They have provided photographs, the authenticity and accuracy of which are undisputed, that show that one easily could get a firm handgrip on the bannister, fully encircling the rail with one's hand. (Id. ¶ 11 & Ex.B) They have provided also a plan of the ship, the accuracy of which also is undisputed, that demonstrates that the stairway in question was an internal stairway with no access to the outside decks (id. ¶ 12 & Ex.C), thus undercutting plaintiffs' suggestion that the rain enhanced the danger of wetness on the stairwell. They assert, moreover, that plaintiffs' application for leave to amend comes too late in the day, as the discovery period ended even before plaintiffs' made their cross-motion.

Discussion

The Motion for Summary Judgment

Inasmuch as plaintiffs concededly were passengers under duly issued passenger tickets, which are maritime contracts, this action is governed by the general maritime law of the United States, at least to the extent that the federal courts have established applicable federal admiralty rules. E.g., Wilburn Boat Co. v. Fireman's Fund Insurance Co., 348 U.S. 310, 313-14, 75 S.Ct. 368, 370-71, 99 L.Ed. 337 (1955); Vavoules v. Kloster Ltd., 822 F.Supp. 979, 981 (E.D.N.Y.1993). This is so even though the action was commenced in state court under the "saving to suitors clause," 28 U.S.C. § 1333(1). Celeste v. Prudential-Grace Lines, Inc., 35 N.Y.2d 60, 358 N.Y.S.2d 729, 315 N.E.2d 782 (1974).

Passengers injured aboard a vessel have a cause of action in admiralty if the injury is caused by negligence imputed to the owner or operator of the vessel. Monteleone v. Bahama Cruise, 838 F.2d 63 (2d Cir.1988); Rainey v. Paquet Cruises, Inc., 709 F.2d 169 (2d Cir.1983). The standard of conduct is "one of reasonable care under the circumstances." Monteleone, 838 F.2d at 64-65 (citing Rainey, 709 F.2d at 172); accord, Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 631-32, 79 S.Ct. 406, 410-11, 3 L.Ed.2d 550 (1959). It must reflect "the extent to which the circumstances surrounding maritime travel are different from those encountered in daily life and involve more danger to the passenger ..." Rainey, 709 F.2d at 172. At the same time, "there is no sound reason to require that a carrier exercise a high degree of care for those trifling dangers which a passenger meets `in the same way and to the same extent as he meets them daily in his home or in his office or on the street, and from which he easily and completely habitually protects himself.'" Id. at 171 (quoting Livingston v. Atlantic Coast Line R. Co., 28 F.2d 563, 566 (4th Cir.1928)).

Against this background, the principles governing "slip and fall" cases arising at sea in circumstances that involve no special risks associated with the maritime location of the accident are similar to those that govern in cases arising ashore. The owner is liable for accidents caused by defects of which the owner has actual or constructive knowledge. Monteleone, 838 F.2d at 65-66.²

Putting aside, for the moment, plaintiffs' cross-motion for leave to amend, defendants would be entitled to summary judgment dismissing this complaint. Mrs. Lee here attributed the accident — both in her November 1993 statement to the owner and in her deposition — solely to her having twisted her ankle when she stepped on melting ice cubes found on the stairway. There is no evidence whatsoever that the owners were responsible for the presence of the ice cubes. There is no evidence that the owners or their agents knew that the ice cubes were there. And there is no evidence as to how long the ice cubes had been on the steps, except of course the common sense proposition — conceded by plaintiffs — that ice cubes quickly melt, which suggests that they had not been there long. The Court therefore turns to the motion for leave to amend.³

The Cross-Motion to Amend

Rule 15(a) provides that leave to amend shall be freely given. Nonetheless, the Court may deny leave if the amendment (1) has been delayed unduly, (2) is sought for dilatory purposes or is made in bad faith, (3) the opposing party would be prejudiced, or (4) would be futile. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). Here there is no issue of dilatory purpose and, in view of the lack of any factual showing, of prejudice to the defendants. In consequence, the focus must be on the extent of and reasons for the delay, whether the application is made in bad faith, and whether the amendment would be futile. The request is denied on the alternative grounds that the request is an unduly delayed effort to bolster the case in a questionable manner and in any event would be futile.

The proposed amendment would add as alleged causative factors in the accident the allegedly rough sea conditions, the claim that the railing did not permit a proper grip, the allegedly worn condition of the carpeting, the metal stripping on the stair edges, and the rainy...