McKinley v. Afram Lines (USA) Co., Ltd., Civ. A. No. 92-10372-H.
| Decision Date | 24 September 1993 |
| Docket Number | Civ. A. No. 92-10372-H. |
| Citation | 834 F. Supp. 510 |
| Parties | Kevin McKINLEY, Plaintiff, v. AFRAM LINES (USA) CO., LTD., Defendant. |
| Court | U.S. District Court — District of Massachusetts |
James W. Bagnell, Thomas J. Hunt, Hunt & White, Boston, MA, for plaintiff.
J. Christopher Callahan, Thomas J. Muzyka, Clinton & Muzyka, Boston, MA, for defendant.
Report and Recommendation accepted and allowed.
REPORT AND RECOMMENDATION RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
(DOCKET ENTRY # 12)
On June 7, 1993, defendant Afram Lines (USA) Company, Ltd. ("defendant"), owner of the S.S. Tampa Bay on July 26, 1991 (Docket Entry # 1, ¶ 2; Docket Entry # 4, ¶ 2), filed a motion for summary judgment. (Docket Entry # 12). On June 18, 1993, plaintiff Kevin McKinley ("plaintiff"), a member of the crew of the S.S. Tampa Bay on July 26, 1991 (Docket Entry # 1, ¶ 3; Docket Entry # 4, ¶ 3), filed an opposition. (Docket Entry # 14).
On July 7, 1993, this court held a hearing and took the motion (Docket Entry # 12) under advisement.
This action arises out of personal injuries incurred by plaintiff during an altercation occurring on July 26, 1991, on board the S.S. Tampa Bay. Plaintiff's complaint asserts three causes of action against defendant.
Count I is grounded on defendant's negligence in failing to maintain a safe working environment and failing to use reasonable care in providing sufficient machinery, appliances, appurtenances and equipment aboard the vessel. In Count II plaintiff alleges that the S.S. Tampa Bay was unseaworthy and that such unseaworthiness resulted in his injuries. Plaintiff also brings a third count for maintenance and cure. (Docket Entry # 1).
Defendant seeks summary judgment on the basis that a crew member's isolated act of striking plaintiff is legally insufficient to support a claim for negligence or a claim of unseaworthiness.1 (Docket Entry # 12). Plaintiff argues that the assailant was intoxicated at the time of the assault and that this conduct creates a responsibility on the part of the Captain to investigate the circumstances leading to the intoxication. Plaintiff further submits that the assailant's intoxicated condition and the vessel's policies towards dealing with intoxicated crew members create unresolved issues of fact which preclude summary judgment. (Docket Entry # 15).
Before detailing the record for purposes of summary judgment, it is necessary to determine the contents of the record. In his brief, plaintiff "does not argue with defendant's statement of the case." (Docket Entry # 15). In addition, plaintiff's brief states that "defendant's statement of the facts are (sic) accurate up to the point where on page 5 paragraph 3 of Defendant's Memorandum, the defendant starts characterizing plaintiff's allegations."2 (Docket Entry # 15).
Defendant's statement of the case and statement of the facts briefly summarizes the altercation and assumes a number of preliminary facts which are not before this court either in the form of prior pleadings, affidavits, answers to interrogatories or depositions. In support of summary judgment, defendant provides excerpts of plaintiff's deposition and also attaches copies of the complaint and answer. (Docket Entry # 13).
Rule 56(c) details the matters which this court can consider on a summary judgment motion. The rule states that summary judgment should be rendered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P.
In the event a complaint is verified, it is appropriate to consider factual averments based on personal knowledge therein as the equivalent of an affidavit for purposes of summary judgment. Sheinkopf v. Stone, 927 F.2d 1259, 1262-1263 (1st Cir.1991). An unverified complaint, however, primarily shows "the nature of the cause of action ... and the opposing party can take advantage of any admissions in it." Ratner v. Young, 465 F.Supp. 386, 389 & n. 5 (D.V.I.1979). A party may also move for summary judgment based solely on the pleadings in which case the court treats the motion as functionally equivalent to a Rule 12(b)(6) motion. See 6 James Wm. Moore, Walter J. Taggart & Jeremy C. Wicker Moore's Federal Practice ¶ 56.111.-1 (1993).
With respect to the case at bar, Rule 56(c) expressly permits the use of "admissions on file." The term admissions is not limited to admissions formally made pursuant to Rule 36, Fed.R.Civ.P. See 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2722 (1983) (); 6 James Wm. Moore, Walter J. Taggart & Jeremy C. Wicker Moore's Federal Practice ¶ 56.111.-1 (1993) (). Rather, the term may encompass an admission made by counsel in a written brief submitted in opposition to the motion for summary judgment. United States v. One Heckler-Koch Rifle, 629 F.2d 1250, 1253 (7th Cir.1980). As expressed by one commentator, "admissions in the brief of the party opposing the motion may be used in determining that there are no genuine issues as to any material fact, since they are functionally equivalent to `admissions on file,' which are expressly mentioned in Rule 56(c)." 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2723 (1983). This is particularly true when the nonmoving party agrees on the facts as summarized by the moving party and neither party objects to this court's consideration of such facts on summary judgment. Accordingly, based on the pleadings, excerpts of depositions and admissions on file, this court finds the following facts.
In June 1991 plaintiff joined the crew of the S.S. Tampa Bay in Jacksonville, Florida as Chief Mate. The S.S. Tampa Bay proceeded from Florida on a voyage to Damman, Saudi Arabia without incident. After loading its cargo in Damman, the S.S. Tampa Bay began her return voyage to Bayonne, New Jersey. (Docket Entry ## 13 & 15).
Five to six days before the July 26, 1991 incident, Able Seaman Leiva ("Leiva"), a member of the crew, reported to plaintiff that Able Seaman Max Guiher ("Guiher"), a member of the crew, had threatened him. (Docket Entry ## 13 & 15). Plaintiff then met with Guiher who acknowledged that there had been some contact between him and Leiva. Plaintiff informed Guiher that he had heard "rumors that he was drinking on the ship and that plaintiff did not want to ever see Guiher drunk." (Docket Entry # 13, Ex. F). Beyond this verbal warning, plaintiff did not take any further precautions to prevent Guiher from assaulting a crew member. Nor did plaintiff feel it was necessary at that time to take such further precautions. (Docket Entry # 13, Ex. G). Plaintiff also testified that an individual identified as "Mr. Ruffino" had told plaintiff that he had warned Guiher about drinking on the ship. (Docket Entry # 13, Ex. H).
Shortly after 5 a.m. on the morning of July 26, 1991, plaintiff received a telephone call from the Chief Steward. The Chief Steward apprised plaintiff "that Guiher was drunk and abusive in the crew's mess and had assaulted" another member of the crew, Able Seaman Brown ("Brown"). (Docket Entry # 13, Ex. C).
Upon further inquiry, plaintiff requested the Chief Steward to send Brown to the bridge. (Docket Entry ## 13 & 15). Ten to 15 minutes after the telephone call and while plaintiff was performing navigational duties in the pilothouse, Guiher approached plaintiff and struck him repeatedly eight to ten times. Guiher punched plaintiff in the arms, shoulders, chest, abdomen and hip. Plaintiff unsuccessfully attempted to push Guiher off his body. (Docket Entry # 13, Ex. C & D).
Leiva, who was on the bridge at the time of the attack, came to plaintiff's aid. Leiva temporarily pulled Guiher off plaintiff. While plaintiff was trying to reach for the telephone to call the Captain, Guiher broke free from Leiva's hold and struck plaintiff again. (Docket Entry # 13, Ex. E). Leiva then restrained Guiher, plaintiff telephoned the Captain and Guiher was taken to his cabin. (Docket Entry ## 13 & 15).
Plaintiff's testimony regarding when he first formed the impression that Guiher had dangerous propensities is contradictory.3 At one point during his deposition, plaintiff testified that he first formed the impression that Guiher had dangerous propensities "when Leiva had his altercation with Guiher." (Docket Entry # 13, Ex. G). At another point, plaintiff testified that he never thought Guiher had dangerous propensities until ten to 15 minutes before Guiher's assault on plaintiff. (Docket Entry # 13, Ex. H). As noted above, except for issuing a verbal warning at the time of Guiher's assault of Brown, plaintiff did not feel it was necessary to take additional precautions at that time. When plaintiff received the telephone call from the Chief Steward on July 26, 1991, however, he formed the impression that Guiher needed physical restraint. (Docket Entry # 13, Ex. G).
The standard for allowance of a summary judgment motion in an admiralty case is synonymous with that applied in non-admiralty cases. Cf. Cerqueira v. Cerqueira, 828 F.2d 863, 864-865 (1st Cir.1987) () and Wynne v. Tufts University School of Medicine, 976 F.2d 791 (1st Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1845, 123 L.Ed.2d 470 (1993) (). Summary judgment is permissible when "there is no genuine issue as to...
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Kowalski v. American Steamship Co.
...he had not previously exhibited violent behavior, even when under the influence of alcohol or other drugs. In McKinley v. Afram Lines (USA) Co., Ltd., 834 F.Supp. 510 (D.Mass.1993), the District of Massachusetts granted summary judgment to a shipowner defendant where there was evidence that......