The opinion of the court was delivered by: CHARLES HAIGHT, District Judge
MEMORANDUM OPINION AND ORDER
In this tort action arising out of injuries suffered by a
swimmer during the course of a distance swimming event and a
related rescue attempt, defendants move for summary judgment and
to preclude the testimony of plaintiffs' expert witness.
Plaintiffs oppose these motions and cross-move for partial
summary judgment to strike certain defendants' affirmative
defenses of waiver and assumption of risk. This Opinion resolves
all these motions.
On July 8, 2000, plaintiff Stephen Roane participated in the
Greenwich Point One Mile Swim, organized and operated by
defendant Greenwich Swim Committee ("GSC"), and held in the Long
Island Sound, near Greenwich, Connecticut. The swim was
considered an entry level event. No prior checks of a
participant's swimming skills were made.
Conditions that day were less than optimal for a swim. The
temperature was colder than expected for the season and the water
choppy. Some swimmers experienced waves of two to three feet
during the course of the race. Nevertheless Roane and over 200
other swimmers congregated at a public beach known as Tods Point
on Long Island Sound to begin the event. Roane swam for approximately one-eighth of a mile when he began
swallowing seawater and became severely distressed. Realizing
that he could not continue in the race, Roane swam to a nearby
buoy and signaled to a lifeguard in a nearby kayak for help. The
lifeguard paddled in Roane's direction and directed him to
straddle the front of the kayak with his arms and legs. Roane was
then transported to a support boat operated by defendant Walter
McDermott was the owner of a 27 foot, twin engine Tiara 2700
Continental model motor vessel named the Sea Breeze. About one
month prior to the swim, a GSC member contacted McDermott to
request assistance in setting up and dismantling the race course,
as well as monitoring the swimmers and potentially lending any
needed assistance. He agreed to participate, and was assisted by
two people. Before the race, GSC member George Friend deployed
balloons to mark the course. Friend was on board the Sea Breeze
when Roane attempted to board the vessel. Laura Warzola, an
emergency medical technician, was also on board.
McDermott's vessel was designed and built by defendant S2
Yachts, Inc., d/b/a/ Tiara Yachts ("S2") in 1984. McDermott
bought the boat second hand in 1997. The boat was powered by two
Mercury inboard/outboard engines or sterndrives.*fn1 One
part of each sterndrive was located inside the vessel's stern,
while the other part, the outdrive which is the propeller and
drive shaft protruded out through the stern. Each engine was
operated independently from the other, by its own throttle and
gear shifting mechanism.
Also at the rear of the boat was a so-called swim platform,
which was nine feet wide and extended approximately thirty inches
from the stern. A fold-down ladder was positioned at the center
of this platform. By McDermott's estimation, the two outdrive
portions of the sterndrives were three to four feet apart, with
the fold-down ladder between the outdrives. McDermott was having trouble with his vessel prior to the race.
The problem began after he beached the boat in order to pick up
Warzola. He shifted both engines into reverse to back the vessel
off the beach. While doing so, he raised both engines into the
"trimmed up position" in order to give himself maximum clearance
above the sea bed. There is no indication that he ever lowered
the engines again up until the time of Roane's injury.
After traversing a sufficient distance through the water,
McDermott attempted to shift the boat's engines to forward gear.
However, due to a faulty throttle cable, the port engine remained
in reverse. With his twin engines now moving in opposite
directions, the boat could only proceed in a circle. McDermott
shut down the impaired port engine and proceeded to operate the
vessel using the starboard engine only.
Returning to Roane's attempted rescue, the kayak (with Roane
straddling its bow) approached the Sea Breeze from her port
side. Friend threw a rope in Roane's direction, which after some
difficulty Roane was able to grab. Roane was then instructed to
board the boat by throwing his leg up on to the platform. Roane
was not instructed to nor did he attempt to board by way of the
fold-down ladder. The vessel's starboard engine continued to run
at this time. However, McDermott asserts that the engine was
running on neutral since the time Roane grabbed hold of the rope.
Due to several factors including the rocking of the vessel, the
rough seas, the slipperiness of the platform, and his own
fatigue, Roane could not pull himself onto the boat. The best he
could do was bring his right leg on top of the platform. Then,
after several failed attempts, Roane was suddenly drawn beneath
the vessel. It was at that time that he was struck by parts of
the boat beneath the surface of the murky waters.
Having been struck by the boat, Roane was in a great amount of
pain. The pain was concentrated in parts of his lower abdomen and testicles. After a
moment of indecision and uncertainty, Friend jumped into the
water to assist Roane, while McDermott shut down the starboard
engine completely and also entered the water to assist Roane.
Friend discovered that Roane's loose fitting swimming trunks had
gotten entangled in the port propeller. He used a knife to cut
the shorts free.
By that point, the crew abandoned all attempts to get Roane on
board McDermot's vessel. Instead, lifeguards came to the scene on
surfboards to take him ashore. When he arrived onshore, he was
placed in an ambulance and taken to Stamford Hospital where he
was treated for his injuries.
In their amended complaint, plaintiffs allege three causes of
action. Their first cause of action is a claim for injuries
suffered by Stephen Roane as a result of GSC's and McDermott's
negligence. Their second cause of action is for those injuries,
sustained as the result of design and/or manufacturing defects by
S2 in respect of the boat Sea Breeze. Their third cause of
action is a loss of services and consortium claim by plaintiff
Margot Roane, Stephen Roane's wife.
There are two threshold issues I must resolve prior to reaching
the substantive motions: first, whether general maritime law
applies to this case; and second, which state law should apply
(to the extent it does not conflict with maritime law). After
examining the standard of review for summary judgment motions, I
will resolve these threshold issues and then decide the
substantive motions. II. STANDARD OF REVIEW
Summary judgment shall be granted "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed.R.Civ.P.
56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The party moving for summary judgment bears the burden of
demonstrating the absence of a genuine issue of material fact;
this burden is satisfied if the moving party" can point to the
absence of evidence to support an essential element of the
nonmoving party's claim." Goenaga v. March of Dimes Birth
Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995). If there is
any evidence in the record from any source from which a
reasonable inference could be drawn in favor of the non-moving
party, then summary judgment should not be granted. Chambers v.
TRM Copy Centers Corp., 43 F.3d 29, 37 (2d. Cir. 1994). The
substantive law will identify which facts are material. Anderson
v. Liberty Lobby, 477 U.S. 242, 248(1986) ("Only disputes over
facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary
In determining whether summary judgment is appropriate, a court
must resolve all ambiguities and draw all reasonable inferences
against the moving party. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, (1986). However, a party resisting
summary judgment "may not rest upon the mere allegations or
denials of the adverse party's pleading, but the adverse party
response, by affidavits or as otherwise provided in this rule,
must set forth specific facts showing that there is a genuine
issue for trial. Fed.R.Civ.P. 56(e). As Judge Motley aptly stated
in Eppendorf-Netheler-Hinz v. Enterton Co., 89 F. Supp.2d 483,
485 (S.D.N.Y. 2000): [J]udges . . . [are not] required to submit a
question to a jury merely because some evidence has
been introduced by the party having the burden of
proof, unless the evidence be of such a character
that it would warrant the jury in finding a verdict
in favor of that party. . . . [I]n every case, before
the evidence is left to the jury, there is a
preliminary question for the judge, not whether there
is literally no evidence, but whether there is any
upon which a jury could properly proceed to find a
verdict for the party producing it, upon whom the
onus of proof is imposed.
(citing and quoting Anderson, 477 U.S. at 251). See also
Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d
Cir. 1990) ("the non-movant cannot escape summary judgment merely
by vaguely asserting the existence of some unspecified disputed
material facts, or defeat the motion through mere speculation or
conjecture." (citations and internal quotation marks omitted).
Thus, the party resisting summary judgment must come forward with
specific facts to show there is a factual question that must be
resolved at trial. Donahue v. Artisan, 00-8326, 2002 WL 523407,
at *1 (S.D.N.Y April 8, 2002).
At the threshold, I must decide whether the general maritime
law governs the parties' conduct, liabilities, rights and
obligations. That question depends in turn upon whether the
plaintiffs' claims fall within the Court's federal admiralty
jurisdiction under 28 U.S.C. § 1333(1), a question that arises
even where, as here, a plaintiff asserts diversity of citizenship
under § 1332 as the sole basis for subject matter jurisdiction.
It is well settled that if a complaint in a tort action invoking
diversity jurisdiction pleads a claim within the admiralty
jurisdiction of the federal courts, the district court will apply
the general maritime law. The Second Circuit made that plain in
Wahlstrom v. Kawasaki Heavy Industries, Ltd., 4 F.3d 1084 (2d
Cir. 1993), a wrongful death case arising out of a collision
between two vessels in navigable waters, where plaintiffs sued in diversity and raised only state law claims.
The Second Circuit noted that the plaintiffs' tort claim "comes
within the admiralty jurisdiction of the federal courts," and
added: "With this jurisdiction comes the application of
substantive maritime law, and absent a relevant federal statute,
we apply the general maritime law as developed by the courts.
That law includes elements adopted from the law of products
liability." Id. at 1087 (citations omitted).
Sometimes this jurisdictional tenet is easier to state than to
apply. Justice Holmes once said: "The precise scope of admiralty
jurisdiction is not a matter of obvious principle or of very
accurate history." United States v. Evans (The Blackheath),
195 U.S. 361, 365 (1904). By now almost everyone knows which
contracts are maritime in nature and consequently within the
admiralty jurisdiction, although the classifications are
enigmatic.*fn2 Tort cases, with their infinite and
kaleidoscopic varieties of wrongful human conduct, can be more
difficult to classify. The Supreme Court has sought to give
guidance in four relatively recent cases: Executive Jet
Aviation, Inc. v. City of Cleveland, 409 U.S. 249 (1972);
Foremost Insurance Co. v. Richardson, 457 U.S. 668 (1982);
Sisson v. Ruby, 497 U.S. 358 (1990); and Jerome B. Grubart,
Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995).
In Executive Jet, a jet aircraft struck a flock of sea gulls
on takeoff and sank in the navigable waters of Lake Erie. The
Court held that the resulting tort claim for property damage did
not fall within admiralty jurisdiction. Rejecting the traditional
rule of admiralty jurisdiction which, focusing exclusively on the
locus of the harm, held that if the wrong occurred on navigable
waters, the action was within admiralty jurisdiction, 409 U.S. at
253 (citing cases), the Court concluded in Executive Jet that
claims arising from airplane ...