the surface of a walking area could not support a verdict in favor of a plaintiff's negligence claim. See, e.g., Allen v. Carr, 28 A.D.2d 155, 284 N.Y.S.2d 796 (4th Dep't 1967), aff'd, 22 N.Y.2d 924, 242 N.E.2d 87, 295 N.Y.S.2d 52 (1968) (citing cases); Holmes v. New York, 5 Misc. 2d 838, 839, 161 N.Y.S.2d 913, 914 (N.Y. Ct. Claims 1957) (three-eights to five-eights of an inch variations in the level of a sidewalks "too small and insignificant to be called defects"); Pearson v. Mallory S.S. Co., 278 F. 175, 176 (5th Cir. 1922) (denying recovery for injuries sustained from tripping over 2" board nailed over hole on a dock). In this case, the condition of the dock was not unreasonable or unexpected.
15. The plaintiff presented no evidence that the defendant had any notice whatsoever about the warped board about which he is now complaining or any evidence as to when the condition occurred.
16. The defendant's actions did not proximately cause the accident. A supervisor did not direct Lombas to walk backwards with the cable without looking where he was going.
17. Finally, the plaintiff cannot recover because his own negligence was the sole proximate cause of his injuries. When the plaintiff's own negligence is the sole cause of his injuries, the plaintiff cannot recover under the Jones Act. See Sotell, 474 F.2d at 796; Webster, 1995 U.S. Dist. LEXIS 8499, 1995 WL 368429, *7; Gillikin v. United States, 1989 WL 13765, *3 (E.D.N.Y. 1989); Spearing v. Manhattan Oil Transp. Corp., 375 F. Supp. 764, 773 (S.D.N.Y. 1974). In this case, the warping on the dock was not hidden, and the plaintiff did not offer any reason why he did not see the alleged defect before he tripped. Lombas simply did not look where he was going as he carried the cable.
The unjustifiable failure to use one's senses constitutes negligence. See Passantino, 299 F. Supp. at 1255 (determining that the plaintiff was negligent because "he did not make reasonable use of his senses and intelligence to discover dangers to which he was or might be exposed . . . . He quite simply failed to use due care for his own health and well-being and his negligence did not merely contribute to this accident, but it was its sole cause."); Holmes v. New York, 5 Misc. 2d 838, 839, 161 N.Y.S.2d 913, 914 (N.Y. Ct. Claims 1957) (denying recovery and finding plaintiff "guilty of failing to watch her path as is expected of an ordinarily prudent person"). Although comparative negligence principles apply to Jones Act cases, in this case there is no negligence on the part of the employer, and the negligence is exclusively that of the plaintiff. A seaman cannot recover when, as here, his negligence is the sole cause of his injury.
Lombas 1990 Dep. at 92-93.
18. The defendant further asserts that even if it were negligent to transport the cables manually across the dock, Lombas may not recover because a captain's negligence serves as an absolute bar. The defendant relies on Judge Learned Hand's opinion in Walker v. Lykes Bros. S.S. Co., Inc., 193 F.2d 772 (2d Cir. 1952), where the Court of Appeals held that a master could not recover for injuries sustained from a defective file cabinet because the master knew the cabinet was defective, had the responsibility to see that it was fixed, had ample opportunity to do so, and failed to do so. Under the Walker doctrine, an employee cannot recover for his injuries when he breaches "a duty which [he] has consciously assumed as a term of his employment." Id. at 773. The defendant argues that even if the cable transfer operation was negligently conceived, Lombas may not recover for any injuries sustained during that operation because he breached his duty as the ship's master to assure the transfer was conducted safely.
Although it is not necessary to apply the Walker doctrine in this case, the court notes that the doctrine is of questionable continued viability in this Circuit. See McSpirit v. Great Lakes Int'l, 882 F. Supp. 1430, 1432 (S.D.N.Y. 1995) (noting that "Walker's continuing viability is doubtful"). In Dunbar v. Henry Du Bois' Sons Co., Inc., 275 F.2d 304, 306 (2d Cir.), cert. denied, 364 U.S. 815, 81 S. Ct. 45, 5 L. Ed. 2d 46 (1960), two of the three judges on a panel of the Court of Appeals expressly rejected the Walker doctrine as "incompatible with the congressional mandate that contributory negligence and assumption of risk shall not bar recovery in a Jones Act case." Id. at 306. Even if the doctrine remains viable, however, it is questionable whether it could bar recovery in this case. The facts of who the JUDY's master was on April 8, 1988 are very much in dispute. Although the plaintiff relies on his own testimony and that of Savoie to state that Savoie was in command of the JUDY, Savoie was only 27 years old, not nearly as experienced as Lombas, and unlikely to be entrusted with the task of being the master of the JUDY for the purpose of towing the barge CARIBBEAN. The testimony of both men appears to be self-serving. The testimony of Capt. Guidry appeared far more reasonable and straight-forward when he testified that Capt. Lombas was in charge of the JUDY. In any event, even if Savoie were in charge of the JUDY on April 8, 1988 when Lombas was on board the JUDY, even Savoie testified that the cable transfer operation was a joint operation among the three men. See Savoie Dep. at 75 (stating that it was a "joint decision" to ask for the cherry-picker and that "[the cable transfer] was a joint job.").
The facts of this case are very different from the specific employment obligations that were imposed on the master in the Walker case. It would not make sense on the facts or the law to apply the Walker doctrine in this case, and the Court has not relied upon it in finding that the plaintiff is not entitled to recover because he has failed to prove by a preponderance of the evidence that the defendant was negligent at all. Moreover, the evidence establishes that the plaintiff's injuries were caused solely by his own negligence.
Savoie Dep. at 75.
For all of the foregoing reasons, the defendant's motion for judgment at the close of all the evidence is granted, and judgment is ordered to be entered for the defendant dismissing the plaintiff's complaint with prejudice.
The foregoing constitutes the Court's Findings of Fact and Conclusions of Law pursuant to Fed. R. Civ. P. 52(a).
JOHN G. KOELTL
United States District Judge
Dated: New York, New York
September 4, 1995