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ROANE v. GREENWICH SWIM COMMITTEE

July 9, 2004.

STEPHEN ROANE and MARGOT ROANE, Plaintiffs,
v.
GREENWICH SWIM COMMITTEE; WALTER F. McDERMOTT; and S2 YACHTS, INC., d/b/a/ TIARA YACHTS, Defendants.



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.

I. BACKGROUND

  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.

  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 judgment").

  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).

  III. DISCUSSION

  A. The Governing Law

  1. General Maritime Law

  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 ...


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