Wiradihardja v. Bermuda Star Line, Inc.

• Decision Date: 01 September 1992
• Docket Number: No. 89 Civ. 3927 (SWK).,89 Civ. 3927 (SWK).
• Citation: 802 F. Supp. 989
• Parties: Martin WIRADIHARDJA, Plaintiff, v. BERMUDA STAR LINE, INC., Defendant.
• Court: U.S. District Court — Southern District of New York

802 F. Supp. 989

Martin WIRADIHARDJA, Plaintiff, v. BERMUDA STAR LINE, INC., Defendant.

No. 89 Civ. 3927 (SWK).

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

September 1, 1992.

COPYRIGHT MATERIAL OMITTED

Profeta & Eisenstein, New York City by Constance M. Burke, for plaintiff.

Martocci & Burns, New York City by Michael Martocci, for defendant.

MEMORANDUM OPINION AND ORDER

KRAM, District Judge.

This action under the Jones Act, 46 U.S.C.App. § 688,¹ arises from injuries that plaintiff, Martin Wiradihardja ("Wiradihardja"), allegedly sustained as a result of a subordinate crew members' assault while Wiradihardja was aboard the Bermuda Star Line ("BSL") vessel the S.S. QUEEN OF BERMUDA (the "S.S. QUEEN"). Presently before the Court is BSL's motion, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for an order granting it summary judgment dismissing the complaint's negligence and unseaworthiness claims. Also before the Court is Wiradihardja's cross-motion, pursuant to Rule 37 of the Federal Rules of Civil Procedure, for an order granting it sanctions, including striking BSL's answer, due to BSL's failure to comply with discovery orders.

BACKGROUND²

During June, 1988, plaintiff Wiradihardja was employed as a food manager aboard the S.S. QUEEN.³ In Wiradihardja's capacity as the S.S. QUEEN's food manager, his responsibilities included supervision of the vessel's food service, food suppliers and food service crew members. Deposition of Martin Wiradihardja, dated Oct. 16, 1989 ("Tr."), at 16, 74.

On June 30, 1988, Wiradihardja was in his office adjacent to the vessel's crew mess hall doing paperwork at his desk when a member of the food service staff known to Wiradihardja as Winston Wilson, a vegetable cook, appeared at the office doorway twelve to fifteen feet away. (Tr. at 36-37, 40.) Wilson picked up from the crew mess table in the front of Wiradihardja's office a bottle of tabasco sauce and a bottle of ketchup. (Tr. at 38-39.) Wilson launched the bottle of tabasco at Wiradihardja. (Tr. at 39-42.) Wiradihardja evaded the projectile. (Tr. at 41-42.) Wilson then cast a bottle of ketchup at Wiradihardja, who, in an effort to shield himself, raised his left arm. (Tr. at 40-43.) The bottle of ketchup struck Wiradihardja's left forearm causing a fracture which necessitated surgical repair. (Tr. at 42-43, 77-78.)

This action was brought in the United States District Court for the Eastern District of Louisiana to recover damages for the injuries Wiradihardja sustained aboard the S.S. QUEEN, and was transferred to this court pursuant to 28 U.S.C. § 1404. The complaint alleges a claim under the Jones Act for negligence, as well as a claim alleging that the vicious propensity of an S.S. QUEEN crew member rendered the vessel unseaworthy.

The parties have concluded extensive discovery and filed a joint pre-trial order. BSL nevertheless moves for an order granting it summary judgment dismissing the complaint. BSL contends that, as a matter of law, it may not be held liable in tort (or otherwise) for the injuries Wiradihardja allegedly sustained aboard the S.S. QUEEN. BSL also argues that Wiradihardja has failed to adduce evidence sufficient to support a claim for unseaworthiness and contends that it is entitled to an order dismissing this claim as a matter of law.

Wiradihardja opposes BSL's motion for summary judgment and cross-moves for an order, pursuant to Rule 37(b)(2)(C) of the Federal Rules of Civil Procedure, striking BSL's answer on account of BSL having misrepresented to the Court its inability to produce personnel files sought by Wiradihardja during discovery.

I. Summary Judgment Standard

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Adickes v. S.H. Kress and Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).⁴ The non-moving party then has the burden of coming forward with "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e), by "a showing sufficient to establish the existence of every element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S.Ct. at 2552.

The court "must resolve all ambiguities and draw all reasonable inferences in favor of the party defending against the motion." Eastway Construction Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir.1985); Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1187 (2d Cir.1987); see also Adickes v. S.H. Kress and Co., 398 U.S. at 158-59, 90 S.Ct. at 1608-09. But the court must inquire whether "there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party," Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986), and grant summary judgment where the non-movant's evidence is merely colorable, conclusory, speculative or not significantly probative. Id. at 249-50, 106 S.Ct. at 2510-11; see Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12-15 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987); Argus Inc. v. Eastman Kodak Co., 801 F.2d 38, 45 (2d Cir.1986), cert. denied, 479 U.S. 1088, 107 S.Ct. 1295, 94 L.Ed.2d 151 (1987). The non-movant must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

To determine whether the moving party has met its burden, the court must focus on both the materiality and the genuineness of the factual issues raised by the non-movant. As to materiality, "it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs." Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. at 2510. A dispute over irrelevant or unnecessary facts will not preclude summary judgment, id., but the presence of unresolved factual issues that are material to the outcome of the litigation mandates a denial of the summary judgment. See, e.g., Knight v. U.S. Fire Ins. Co., 804 F.2d at 11-12.

Once the non-moving party has successfully met the burden of establishing the existence of a genuine dispute as to an issue of material fact, summary judgment must be denied unless the moving party comes forward with additional evidence sufficient to establish his or her burden under Rule 56. See Celotex Corp. v. Catrett, 477 U.S. at 330 & n. 2, 106 S.Ct. at 2556 & n. 2 (Brennan, J., dissenting). In sum, if the court determines that "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356 (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968)); see also Weg v. Macchiarola, 654 F.Supp. 1189, 1191-92 (S.D.N.Y.1987).

II. Negligence Claims

Under certain circumstances, an employer who knows or who can reasonably foresee that an employee, while on the job, is likely to commit an assault, may be held responsible for the employee's activities. In order to establish a shipowner's liability in negligence under these circumstances, a plaintiff must establish that (1) the assailant is a person of known vicious character, Offshore Logistics Inc. v. Astro— Marine, Inc., 482 F.Supp. 1119, 1121 (E.D.La.1980) and (2) the shipowner knew or should have known of the crew member's violent propensities. Sundberg v. Washington Fish & Oyster Co., 138 F.2d 801 (9th Cir.1943).

Under the doctrine of respondeat superior, an employer may also be found liable for an assault by an employee if the assault is committed by a superior upon a subordinate and the assault bears a relation to the real or apparent scope of the attacker's employment or to the interest of the employer, that is, when it is in furtherance of the employer's business. See Lykes Brothers S.S. Co., Inc. v. Grubaugh, 128 F.2d 387, 391 (5th Cir.1942); see also Jones v. Lykes Bros. S.S. Co., 204 F.2d 815 (2d Cir.1953) (no recovery under Jones Act for assault by fellow servant unless assault was committed in discharge of assailant's duties and in furtherance of work of employer's business).

Review of the undisputed facts in this case indicates the absence of facts sufficient to establish a prima facie claim under either theory.

A.

Absent from the record are facts which would permit the inference that BSL was negligent in hiring or employing Wilson. There are no facts to establish that Wilson's violent conduct was foreseeable. Significantly, there is no indication that Wiradihardja or anyone else ever heard or saw Wilson harm or threaten anyone or otherwise exhibit violent conduct. (Tr. at 88.) In addition, Wiradihardja personally promoted Wilson from galley cleaner to vegetable cook, after Wilson requested the promotion (Tr. at 25), an action that Wiradihardja would hardly have taken had he any reservations about Wilson's possible propensity toward violence. As Wiradihardja has failed to proffer evidence from which a reasonable trier of fact could conclude that his assailant had a propensity to violence or that BSL should have known of any such vicious propensity, the Court holds that, as a matter of law, no reasonable juror...