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COCHRAN v. A/H BATTERY ASSOCS. & ARCORP PROPS.

December 26, 1995

THOMAS N. COCHRAN, plaintiff, against A/H BATTERY ASSOCIATES AND ARCORP PROPERTIES, INC., defendants.


The opinion of the court was delivered by: NEWMAN

BERNARD NEWMAN, Senior Judge *fn1" :

 Thomas N. Cochran, a resident of New Jersey, brings this action grounded in admiralty against A/H Battery and ARCORP Properties (hereinafter "defendants"), respectively a partnership and related corporation engaged in the transportation of passengers from New Jersey to New York by ferry boat. Plaintiff seeks an unspecified amount of compensatory damages for his claim that while he was a passenger on the Alexander Hamilton (hereinafter "Hamilton"), one of defendants' ferries, he was injured as the result of an allision. In addition to compensatory damages, plaintiff asks for punitive damages alleging gross misconduct on the part of the defendants. While defendants concede liability in this matter, they contend that plaintiff's injuries are so slight that only de minimis damages should be awarded. Defendants further maintain that under the current state of admiralty law, punitive damages may not be awarded in this case. Finally, defendants argue that their conduct does not rise to the level of egregiousness necessary for an award of punitive damages.

 THE RECORD

 Plaintiff presented three witnesses: plaintiff, a features editor for Barrons magazine; R. David Stewart, an expert in the field of marine engineering; and Dr. Robert Hyman, an expert in the area of orthopedic surgery. Defendants presented four witnesses: Robert Gavares, the captain of the Alexander Hamilton ferry on February 12, 1992, Douglas S. Neeb, an expert in the field of marine engineering, James Silecchia, the mechanic for the ferry system, and Mark Summers, the usual captain of the Alexander Hamilton ferry. Upon joint motion by all parties the affidavit of James Meagher, Cochran's supervisor at Barrons, was admitted into evidence (R. 196). The parties introduced 12 documentary exhibits into evidence.

 CONTENTIONS OF THE PARTIES

 Plaintiff maintains that on February 12, 1992 at approximately 7:45 a.m., he was a paid passenger aboard the Hamilton ferry en route to the World Financial Center (hereinafter "WFC") from Hoboken, New Jersey. As the Hamilton was approaching the mooring at the WFC, it allided with the dock, propelling plaintiff forward into a metal pole. Plaintiff contends that as a result of the allision, he had severe pain in his left knee and head. Due to his head injury, plaintiff alleges that he experienced cognitive difficulties causing him to make errors while typing and producing his column. Although plaintiff was able to correct most of these errors, he argues that some mistakes were published, that he suffered anxiety from the belief that he would lose his job, and claims that he has developed a permanent sexual disfunction. Plaintiff also testified that as a result of the knee injury, he was forced to refrain from engaging in many of the sports he had previously enjoyed. Moreover, plaintiff asserts that the lasting effects of the injury to his knee has caused him continuing difficulty when participating in sporting events and created a likelihood that he may require future knee replacement surgery. In addition to seeking compensatory damages for his sustained injuries, plaintiff further requests punitive damages based on his allegation that although defendants knew or should have known about the unsafe condition of the ferry, they nonetheless allowed it to transport passengers thereby demonstrating gross negligence.

 Defendants concede ordinary negligence with regard to the allision. Nor do they deny that plaintiff was injured when the ferry struck the dock. Defendants, however, argue that plaintiff is only entitled to a de minimis damage award because his injuries were temporary and slight. Specifically, defendants challenge that plaintiff's cognitive abilities were seriously impaired. In support, they point to plaintiff's own admission that nobody at Barrons ever commented on his supposedly deteriorating work. Further, defendants claim that any anxiety plaintiff experienced regarding the possibility of losing his job was self-induced, in that, his superior did not consider plaintiff's work of any lesser quality than prior to the accident. As to plaintiff's sexual impairment claim, defendants respond that because plaintiff was never medically treated for such a problem and his wife never articulated to him that she noticed any problem or difference with regard to his sexual performance, there is insufficient evidence to support an award of damages.

 Defendants agree that plaintiff's knee was injured in the allision but dispute that the current medical status of his knee was the result of the allision. Because his treating physician never diagnosed significant cartilage damage to plaintiff's knee until such time as plaintiff's knee failed during a skiing holiday at an extremely difficult ski resort, defendants maintain that the current condition of plaintiff's knee cannot be wholly attributed to the allision and, rather it is more likely that plaintiff's skiing caused unrelated, additional, and more serious knee damage. Finally, in addition to arguing that punitive damage are not recoverable as a matter of law in this type of action, defendants contend that there was no showing of gross negligence or willful misconduct to warrant an award of punitive damages.

 FINDINGS OF FACT

 Plaintiff, a resident of New Jersey, is employed as a features editor by Barrons Magazine. On February 12, 1995, as was his custom since October 1989, plaintiff was a lawful paid passenger in New Jersey aboard the Hamilton ferry, a vessel for hire, owned and operated by defendants. Earlier that morning James Silecchia, the mechanic for the four vessel fleet, began the start up procedure for all four of the ferries, including the Hamilton. This procedure included the checking of the air system and the draining of the air tanks as well as the air filter system. After starting the ferry, Silecchia found the Hamilton to be in fully operating condition. The ferry departed Hoboken at 7:40 a.m. en route to the WFC, located in New York City, in what would be its third one way transit across the Hudson River on that morning. At approximately 7:48 a.m., as the ferry was approaching its New York destination, the vessel's captain Robert Gavares attempted to bring the ferry to a complete stop. At that moment, the low air pressure alarm in the pilot house sounded and Captain Gavares did not have any control over the vessel's air pneumatic system, which is used to control the ferry. *fn2" Because Captain Gavares was unable to make the vessel come to a halt, it continued moving forward at an approximate speed of five knots until it allied with the dock at the side of the WFC.

 Plaintiff, who was seated at the time of the allision, was propelled forward into a metal railing hitting his head and left knee. Although he was injured, plaintiff was able to walk under his own power to a physician located at the World Trade Center and subsequently went to work. That weekend, he sought additional medical attention. Plaintiff maintains that as a result of his head injury he was not able to perform his job effectively. Specifically, plaintiff stated that after the allision, he made several typographical, repetitive, and definitional errors in the articles he authored for Barrons, some of which were published. Although he never mentioned these problems to anyone at Barrons, plaintiff explained that he feared discovery of the errors by his employer would put his job in jeopardy. The anxiety plaintiff experienced regarding his job performance, manifested itself into a fear of losing his livelihood. Despite these fears, however, plaintiff admits that he was able to quickly discover and correct nearly all of his typographical errors, and that nobody in the company seemed to notice his difficulties. Plaintiff's supervisor, James Meagher, in his affidavit stated that there was no change in "the quality of writing with report to the articles drafted and edited by Thomas Cochran since February 12, 1992," and that the quality of the materials prepared by Mr. Cochran after the allision "were consistent with and as good as the quality of reports prepared prior to the accident." Affidavit of James Meagher, pp. 1-2, par. 3 *fn3" Plaintiff admits that this condition was temporary and that his cognitive functions fully returned sometime around May or June of 1992. It is undisputed that plaintiff suffered no lost wages or earnings as a result of any of his injuries.

 With respect to his head injury, plaintiff also complained that less than one week after the allision his sexual relations with his wife were affected. Plaintiff testified that:

 
sex isn't as much fun as it was. It doesn't take place as often as it did. I don't know, it was overnight, and I don't know why the heck it would happen from a blow to the head, but things just didn't work as well, and it's a darn sight less fun.

 (R. 33). While plaintiff testified that he told his doctor of this problem, he decided not to undergo any medical treatment. In addition, no medical evidence regarding any sexual dysfunction was presented and plaintiff conceded that his wife neither complained, nor even broached the subject of plaintiff's sexual performance (R. 58).

 The majority of plaintiff's claim regarding the damages he suffered are related to the knee injury sustained in the accident. This injury is the subject of sharp disagreement between the parties. Plaintiff alleges that the injury to his knee is serious, that it impedes his enjoyment of recreational sports, and may result in subsequent knee replacement surgery *fn4" (R. 209-211). Although he was unsure of the exact amount, plaintiff testified that his out of pocket medical expenses totaled between $ 4500 and $ 8500 (R. 36). Defendants respond that the only injury to plaintiff's knee that is attributable to the allision is "a bone bruise," and that any subsequent serious damage was as a result of a skiing trip taken by plaintiff in December 1992. In resolving this factual dispute, the court finds that neither parties' account of the severity of plaintiff's knee injury is supported by the evidence presented.

 Defendant's contention that the injury is nothing more than a "bone bruise" is flatly contradicted by the expert testimony submitted by plaintiff as well as the medical records entered into evidence *fn5" There is no dispute that Dr. D'Agostini, plaintiff's treating physician for his knee aliment, stated "my initial assessment at the time to the initial evaluation was that [plaintiff] had sustained a chondral contusion, also known popularly as a bone bruise" (Defendant's Exh. J). Defendant, however, blanketly ignores the fact that after an MRI was taken on March 9, 1992, Dr. D'Agostini confirmed that there was a bone bruise and stated that there also appeared to be "a trabecular micro fracture," as well as, "a type 1 change in the medial meniscus". (Id.; R. 208). Indeed, in his report, Dr. D'Agostini explained that "this means that the supporting bone underneath the chondral cartilage has been fractured and though there is no gross disruption on the bone, which would have been obvious to the x-ray, it is indicative of the severity of the trauma that the knee has been subjected to." Id. Dr. Agostini further pointed out that as a result of the knee injury sustained in the ferry accident, plaintiff has an unquantifiable risk "of the development of osteoarthritis." Defendant's Exh. J. Lastly, while defendants correctly point out that ...


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