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February 28, 2001


The opinion of the court was delivered by: Amon, District Judge.


In this action, plaintiffs Anthony Matthews and Anne Matthews seek damages related to personal injuries sustained by Anthony Matthews when he fell into an open holding tank on the barge "Nathan Berman." The Court has received the Report and Recommendation ("R & R") of the Honorable Marilyn Dolan Go, United States Magistrate Judge, dated July 24, 2000, which recommends that this Court grant defendant United States of America's ("United States" or the "government") and third-party defendant Independent Testing and Consultation, Inc.'s ("Independent Testing") motions for summary judgment.*fn1 The parties were given until August 11, 2000 to file any objections to the R & R, and each party submitted papers to the Court.

Defendants and third-party plaintiffs Ken's Marine Service, Inc. and Ken's Marine & Oil Service (collectively "KMS" or the "KMS defendants") object to the R & R because it: (1) improperly resolved disputed questions of fact against them; (2) incorrectly applied to this case the reasoning in Claudio v. United States, 94 CV 5220, 1996 WL 449329 (E.D.N.Y. July 31, 1996), regarding the "discretionary function exception"; (3) incorrectly applied the controlling law regarding the United States' liability to the KMS defendants under the Good Samaritan doctrine; and (4) incorrectly applied the controlling law regarding indemnity and contribution to KMS' claim against Independent Testing.*fn2 Plaintiffs Anthony and Anne Matthews filed objections concurring with KMS' objections with respect to the United States' motion for summary judgment, and additionally objected to the R & R to the extent that it suggests that the KMS defendants might not be strictly liable to plaintiffs under New York labor law.

Having reviewed the parties' objections, and conducted a de novo review of the record as to the portions of the R & R that the parties object to, the Court hereby adopts the R & R as the opinion of the Court, except to the extent clarified by this Order. See 28 U.S.C. § 636(b)(1). As a number of objections have been raised that merit more detailed discussion, the Court will address each in turn.


I. Disputed Facts

Although the KMS defendants' objections to the R & R are not entirely clear,*fn3 the Court understands KMS to first object to the R & R because it improperly resolves in the government's favor the disputed fact that U.S. Coast Guard Petty Officer Michael Puma, who had been assigned to oversee the KMS defendants' clean-up operations on the Nathan Berman on the night of October 1, 1993, did not act as a "safety watchman" on the gangway of the barge after Edward Claudio, a KMS employee, had fallen into an open holding tank on the barge.*fn4 After a careful review of the evidence presented, the Court finds that the Magistrate Judge did not improperly resolve this issue of fact against the non-moving parties.

Plaintiffs and the KMS defendants fail to "set forth specific facts showing there is a genuine issue for trial," as is required to defeat a motion for summary judgment. Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citations omitted) (No genuine issue exists "unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."). According to Officer Puma, after Claudio fell into the tank, KMS' foreman Charles Loucka left the barge to contact the appropriate emergency services, and he followed Loucka off the barge and onto the pier "to make sure the proper calls were being made." (Deposition of Michael Puma ("Puma Dep.") at 21, 26-28.) In opposition, plaintiffs allege that Officer Puma had instead volunteered to serve as a "watchman" on the gangway to ensure that no one else would fall into the holding tank. (Plaintiffs Statement Pursuant to Rule 3(g) ¶ 8.) Likewise, the KMS defendants assert that Officer Puma "either affirmatively acted, or failed to properly act, as a safety officer." (KMS Defs.' Objections at 7.)

Neither plaintiffs nor the KMS defendants, however, offer sufficient evidence so that a reasonable trier of fact could find in their favor. The only evidence cited by plaintiffs in support of their allegation was the deposition testimony of Kevin Nugent, KMS' Site Safety Officer, who said that Loucka had told him that Officer Puma was standing on the gangway as a watchman to block access to the barge. The Magistrate Judge properly declined to credit this testimony as inadmissible hearsay. The KMS defendants, for their part, refer the Court only to their attorney's affidavit in opposition to the government's summary judgment motion, which does not cite any evidence in the record to support their contention that Puma was acting as a guard to prevent others from coming on board the barge. These unsubstantiated allegations by defendants and their attorney are also not sufficient to create a genuine issue of material fact.

Giving the non-moving parties the benefit of the doubt, the Magistrate Judge even considered Loucka's deposition testimony, which neither plaintiffs nor KMS referred to in their statements of disputed material facts or in their objections. Loucka, the only witness who claims to have observed Puma's actions after Claudio fell into the holding tank, testified that the last time he saw Puma before exiting the barge, Puma was "on the barge at the head of the gangway. . . . He was, to my understanding there as some sort of security to prevent other people from coming up on the barge." (Deposition of Charles Loucka ("Loucka Dep.") at 35-36.)

II. The Discretionary Function Exception

The KMS defendants next object to the R & R because it improperly applied the "discretionary function exception" to find that the Court has no subject matter jurisdiction in this case.

As a general matter, "absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); Dorking Genetics v. United States, 76 F.3d 1261, 1263 (2d Cir. 1996). The Suits in Admiralty Act ("SAA"), 46 U.S.C. App. §§ 741-752, under which the instant action was brought, waives the United States' sovereign immunity, however, with respect to claims that "if a private person or property were involved, a proceeding in admiralty could be maintained." 46 U.S.C. App. §§ 742.

Although the SAA, unlike the Federal Tort Claims Act, 28 U.S.C. § 2680(a), does not contain an express discretionary function exception, the Second Circuit has held that the exception applies equally to the SAA. See In re Joint Eastern and Southern Districts Asbestos Litig., 891 F.2d 31, 34-35 (2d Cir. 1989). The discretionary function exception "insulates the Government from liability if the action challenged . . . involves the permissible exercise of policy judgment." Id. at 36 (quoting Berkovitz v. United States, 486 U.S. 531, 537, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)). In considering whether the exception applies, the Court is to consider whether the conduct is a product of choice, and whether the choice involves considerations of public policy. Id.

The KMS defendants do not contest that the United States was performing a discretionary function in monitoring the clean-up activities being conducted on the Nathan Berman prior to, and at the time of, Claudio's accident. (KMS Defs.' Objections at 7.) As they point out, United States District Judge Leo I. Glasser made that exact determination in Claudio v. United States, No. 94 CV 5220, 1996 WL 449329, at *8 (E.D.N.Y. July 31, 1996), the action that arose out of Claudio's fall, and held that all claims against the United States were barred by the discretionary function exception. Rather, the KMS defendants contend that the discretionary function exception is inapplicable in the instant case because the circumstances of Matthews' accident, and the government's role in particular, differed from Claudio's accident.

This argument, while logically sound, is unavailing here since the Magistrate Judge properly found that there was no evidence to support the suggestion that Officer Puma volunteered to guard the gangway after Claudio fell into the holding tank. Accordingly, as Officer Puma did not accept any new responsibility for safety on the barge after Claudio's accident, the United States' position with respect to Matthews is no different from its position with respect to Claudio. The government had expressly delegated the responsibility for maintaining safety on the barge to a private contractor, KMS, in the Basic Ordering Agreement ("BOA") entered into by the parties. (See Declaration of Edward F. Kenny, dated Apr. 30, 1997, Ex. H § H.6.) Officer Puma was merely performing an oversight role on the barge, monitoring KMS' work, at the time the accident occurred. Such conduct is within the discretionary function exception to the SAA. See, e.g., Andrews v. United States, 121 F.3d 1430, 1440-41 (11th Cir. 1997) (government cannot be sued for decision to delegate safety responsibilities to independent contractor or for decisions about how and how much to supervise the safety procedures of independent contractors); Blaber v. United States, 332 F.2d 629, 631 (2d Cir. 1964) (in deciding "the extent to which it will undertake to supervise the safety procedures of private contractors, [the government] is exercising discretion at one of the highest planning level").*fn5

To be sure, as the R & R implicitly recognized, if there had been sufficient probative evidence that Officer Puma had, in fact, undertaken to guard the gangway, then the KMS defendants' objections would be well-founded. The discretionary function exception does not protect the government in instances where it undertakes to perform an act necessary for another's safety and then acts negligently, even if it is within the government's discretion whether to act in the first place. Thus, in Indian Towing Co. v. United States, the Supreme Court held that the Coast Guard could be held liable for negligently maintaining a lighthouse that it had agreed to operate:

The Coast Guard need not undertake the lighthouse service. But once it exercised its discretion to operate a light on Chandeleur Island and engendered reliance on the guidance afforded by the light, it was obligated to use due care to make certain that the light was kept in good working order; and, if the light did become extinguished, then the Coast Guard was further obligated to use due care to discover this fact and to repair the light or give warning that it was not functioning. If the Coast ...

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