The opinion of the court was delivered by: KAPLAN
LEWIS A. KAPLAN, District Judge.
Plaintiff Millicent Lee slipped on a staircase aboard the REGAL EMPRESS on the night of October 8, 1993 and fractured her left patella. She was evacuated from the ship and, while undergoing a manual manipulation of her left knee under general anesthesia, performed by a physician unconnected with the ship and its owners, sustained a fracture of the left distal femur. She and her husband have brought this action against the ship's owners. The owners have impleaded the treating physician, against whom plaintiffs subsequently made a direct claim. The owners now move for summary judgment dismissing plaintiffs' complaint against them. Plaintiffs in turn cross-move to amend the complaint.
On the night in question, plaintiff, her husband, and another couple, the Paynes, spent a presumably pleasant evening, dining and watching the entertainment provided on the so-called Cruise to Nowhere aboard the REGAL EMPRESS. They and a third couple had consumed a bottle of champagne with dinner. The Lees and the Paynes proceeded in due course to a jazz concert in the Mermaid Lounge where Mrs. Lee took a glass of white wine. They then left the Mermaid Lounge and descended an interior staircase to the Promenade Deck. Mrs. Lee held the glass of wine in her right hand. When she reached the last or the penultimate step, she twisted her right ankle and fell on her left knee, breaking her patella.
Plaintiffs brought this action on or about September 21, 1994 in the New York Supreme Court.
The complaint alleges that the falls was caused by "a defective condition that existed on [the] stairway" and that the defendants had been negligent "in the ownership, operation, maintenance and control of the aforementioned stairway and steps..." (Cpt PP 18-19)
The Court, with the agreement of counsel, entered a scheduling order which required that any amendment of the pleadings by made by February 15, 1995 and, as amended, that discovery be concluded by December 22, 1995.
Mrs. Lee was deposed on March 2, 1995. She testified that the carpeting on the stairs was "older," that the steps had metal stripping on their edges, that it had been raining "quite heavily," and that the ship was pitching. (M. Lee Dep. 43-45, 62) As she descended the steps, she held the bannister "a little bit for balance, because the ship... was rough." ( Id. 66) She then stepped on something that caused her ankle to twist, discovering immediately that the substance in question was "little ice cubes in the melting stages." ( Id. 66-67; see also id. 68-69) Mrs. Lee acknowledged that she had no idea how long the ice cubes had been on the steps or how they had gotten there. ( Id. 71, 107) This testimony was consistent with a November 16, 1993 written statement that Mrs. Lee gave to the owners in which she also attributed the accident exclusively to water and ice cubes on the steps. (Lambos Aff. Ex. D)
Defendants filed this motion for summary judgment on December 15, 1995. The thrust of the motion is that there was no negligence because there is no evidence as to (1) how the ice cubes came to be on the steps or how long they had been there, and (2) the existence of any defect in the construction or arrangement of the steps. This evidently caused the plaintiffs to rethink their case.
Acknowledging "that an ice cube can melt rather quickly and that the plaintiffs could not truthfully say how long the particular ice cube on which [Mrs. Lee] slipped was present" (Pl. Mem. 7), plaintiffs cross-moved to amend the complaint to assert the following theories of liability:
1. The sea and weather conditions were so unstable that the owners had a duty to issue special warnings and to supervise passengers as they moved about the ship.
2. The construction of the bannister was defective in that it was affixed to the wall with brackets that made it difficult or impossible to obtain a firm grip.
3. The allegedly worn condition of the carpet and the metal stripping on the lips of the steps ...