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KOERNER v. CLUB MEDITERRANEE

September 21, 1993

TODD ALAN KOERNER, Plaintiff,
v.
CLUB MEDITERRANEE, S.A., CLUB MED (BAHAMAS) LTD., CLUB MED SALES, INC., CLUB MED MANAGEMENT SERVICES, INC., Defendants.


SWEET


The opinion of the court was delivered by: ROBERT W. SWEET

Sweet, D. J.

 This action between plaintiff Todd Alan Koerner ("Koerner") and defendant Club Med (Bahamas), Ltd. ("Club Med"), the only defendant remaining at trial, was tried before a jury from April 7 to April 13, 1993. On April 13, 1993, the jury returned a verdict for Koerner.

 Club Med moved pursuant to Rule 50(b), Fed. R. Civ. P., for a judgment as a matter of law or, in the alternative, for a new trial pursuant to Rule 59, Fed. R. Civ. P. Club Med also has moved for remittitur of the damages awarded as an alternative to a new trial on all issues.

 Koerner has moved pursuant to Rule 15(b), Fed. R. Civ. P., for leave to increase his ad damnum to conform to the proof at trial and for judgment on the jury's verdict.

 Oral argument was heard on April 21, 1993, and the motions were considered submitted as of that date.

 For the reasons set forth below, Club Med's Rule 50(b) motion is denied, its Rule 59 motion is granted, and Koerner's Rule 15(b) motion is denied.

 Parties

 Koerner is a natural person who is domiciled in the Commonwealth of Virginia.

 Club Med is a wholly owned subsidiary of Club Mediterranee, S.A., and is a corporation duly organized and existing under the laws of the Bahamas. It operates the Club Med Turkoise resort facility (the "Turkoise Resort") located in the Turks and Caicos Islands in the British West Indies.

 Prior Proceedings and Facts

 On October 15, 1992, Koerner brought this diversity action against Club Med, alleging personal injuries as a result of a boating accident which occurred during the course of his employment with Club Med. Koerner proceeded to trial on the theory that Club Med owed him a duty to train him properly to operate the equipment safely in the conditions he was reasonably likely to meet in the performance of his required duties.

 Koerner alleged that he received no training from Club Med in the use of a 17' outboard motor boat, a Boston Whaler (the "Boston Whaler"), which he was assigned to operate in the course of his work as a windsurfing instructor off the shore of the Club Med resort. According to Koerner's proofs, as a result of Club Med's failure to train him in the proper operation of the Boston Whaler, he failed to appreciate and avoid certain dangerous surf conditions that developed on October 14, 1987.

 Koerner provided expert testimony from Thomas Ebro ("Ebro") to the effect that the approach taken by Club Med to train and supervise its employees failed to meet the standard of care in the resort industry for training persons who would be required to utilize motor boats to retrieve and rescue patrons of the resort from the ocean.

 On the date in question, Koerner had been piloting the Boston Whaler to shuttle Club Med patrons from a larger boat to the dock. After the shuttling process was completed and while Koerner was bringing the Boston Whaler to shore, he noticed that a Club Med patron who had been windsurfing was in the water with the sail down.

 Koerner threw the windsurfer a line and towed him toward to shore. Koerner then brought the Boston Whaler into shallow water parallel to the beach, shut off the engine, moved to the aft section of the Boston Whaler, and began lifting the engine out of the water to secure the boat. As Koerner lifted the engine into the boat, a large wave capsized the boat upon the beach. Koerner was thrown out of the Boston Whaler as it turned over, and the boat landed on him, trapping him beneath it and pinning his right hand beneath the gunwale.

 As a result of this accident, Koerner suffered three broken bones in his right hand and the skin on the back of the hand was "degloved." Koerner underwent six surgical procedures to repairs these injuries, including the use of a "groin flap" procedure to graft skin from his lower abdomen onto the hand.

 Koerner has suffered a 40% permanent partial disability to his right dominant hand, which has limited his ability to participate in sports and eliminated his ability to play the trumpet, a 10% permanent partial disability to his whole body as a consequence of the skin graft, and the psychological trauma of his disfigurement.

 Discussion

 I. Club Med's Rule 50(b) Motion Is Denied

 A. The Standard For Rule 50

 A motion for judgment as a matter of law should be denied unless, viewed in the light most favorable to the nonmoving party, "the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as the verdict that reasonable men could have reached." Samuels v. Air Transport Local 504, 992 F.2d 12, 14 (2d Cir. 1993) (quoting Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970)); accord Smith v. Lightning Bolt Prods., Inc., 861 F.2d 363, 367 (2d Cir. 1988); Auwood v. Harry Brandt Booking Office, Inc., 850 F.2d 884, 889 (2d Cir. 1988).

 There must be "such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture." Samuels, 992 F.2d at 14; see also Mattivi v. South African Marine Corp., "Huguenot," 618 F.2d 163, 168 (2d Cir. 1980). However, the court "'cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury."' Smith, 861 F.2d at 367 (quoting Katara v. D.E. Jones Commodities, Inc., 835 F.2d 966, 970 (2d Cir. 1987)); see also Mattivi, 618 F.2d at 167.

 B. Applying The Standard To Koerner's Proofs

 The gravamen of Koerner's action was that Club Med's negligence proximately caused his injury. In order to establish a claim for negligence, a plaintiff must establish the following familiar elements: first, that the defendant owed him a duty; second, that the defendant breached that duty; third, that the injury to the plaintiff was foreseeable; and fourth, that damages incurred by the plaintiff were proximately caused by the defendant's breach. See Sinclair v. Long Island R.R., 985 F.2d 74, 77 (2d Cir. 1993).

 A review of the trial record fails to support the conclusion that the "jury's findings could only have been the result of sheer surmise and conjecture." Samuels, 992 F.2d at 14. Koerner's proofs included evidence intended to establish each of the elements of his negligence claim. With regard to the existence of a duty owed by Club Med to him to train him in the proper use of the Boston Whaler, Koerner offered into ...


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