The opinion of the court was delivered by: GEORGE DANIELS, District Judge
MEMORANDUM ORDER & OPINION
Plaintiff, a former employee of defendant McAllister Brothers,
Inc., brought suit alleging that defendant was negligent for
failing to provide protective guards around the belt and pulley
system of a compressor located aboard defendant's sea vessel. A
jury verdict found in favor of defendant and no damages were
awarded to plaintiff. Plaintiff moved for a new trial pursuant to
Rule 59(a) of the Federal Rules of Civil Procedure. For the
reasons stated below, plaintiff's motion for a new trial is
Plaintiff Marvin Modlin was employed as the chief engineer of
sea vessels owned by defendant McAllister Brothers, Inc. While
working on defendant's sea vessel the "Justine McAllister,"
plaintiff severely injured his hand while he was cleaning a part
of the engine in the main engine room. Specifically, plaintiff's
complaint alleges that he was in the engine room of the vessel
cleaning the commutator of the compressor when the boat "took a
roll," which caused his hand to get caught between the
compressor's belt and pulley system, resulting in the injury to
his hand Plaintiff's complaint alleged that defendant was
negligent for failing to provide adequate protective guards
around the compressor's belt and pulley system. Plaintiff claimed
that he had previously requested and notified his superiors of
the deficiency and that these requests went unheeded. Evidence adduced at trial show, however, that it was within
plaintiff's duties, as the chief engineer, to ensure safety in
the engine room. Further evidence showed that despite plaintiff's
claims to the contrary, plaintiff had made no requests and had
not notified defendant of any potential deficiency which may have
contributed to his accident.
The evidence at trial did not support plaintiff's account of
the events of that evening. Plaintiff was alone in the engine
room when the accident occurred. Defendant presented evidence
that significantly impeached plaintiff's credibility. The
evidence showed that plaintiff suffered from alcoholism and that
he had previously been suspended and fired by other employers for
drinking on the job. Indeed, at the time of his application to
work for defendant, the evidence showed that plaintiff lacked the
proper papers to work aboard the Justine McAllister as the United
States Coast Guard had suspended his mariner's papers, i.e. his Z
Card, and his engineer's license for failing certain drug and
alcohol tests. Further evidence showed that plaintiff had
previously lied on other job applications by representing that he
possessed the proper working papers. Furthermore, while
previously working for another marine company, plaintiff was
caught intoxicated on the boat and a bottle of liquor was found
in his locker. Defendant also presented evidence to show that on
the night of the accident, the doctor who examined plaintiff at
the hospital detected a scent of alcohol emanating from
Plaintiff moves to vacate the jury's finding and grant him a
new trial pursuant to Fed.R.Civ.P. 59(a). Plaintiff's present
motion is premised on the following arguments: the jury's verdict
was against the weight of the evidence; it was inappropriate to
give the primary duty charge because he was a lower echelon employee; and
the evidence presented at trial did not support the application
of the primary duty doctrine.
A motion for new trial, pursuant to Federal Rule of Civil
Procedure 59(a), should be granted when, "in the opinion of the
district court, the jury has reached a seriously erroneous result
or . . . the verdict is a miscarriage of justice." Song v. Ives
Labor Inc., 957 F.2d 1041, 1047 (2d Cir. 1992); see also
Smith v. Lightning Bolt Prod. Inc., 861 F.2d 363, 370 (2d Cir.
1986). The court can only disregard a jury verdict if it is
"reasonably clear that prejudicial error has crept into the
record or that a substantial injustice has not been done." Olson
v. Bradrick, 645 F. Supp. 645, 654 (D. Conn. 1986); see also
Milos v. Sea-Land Serv. Inc., 478 F. Supp. 1019, 1021 (S.D.N.Y.
1979); aff'd, 622 F.2d 574 (2d Cir. 1980), cert. denied,
499 U.S. 954 (1980). The motion for a new trial is committed to
the sound discretion of the trial judge. Fiacco v. City of
Rensselaer, 783 F.2d 319, 332 (2d Cir. 1986), cert. denied
480 U.S. 922 (1987).
A. Weight of the Evidence
Plaintiff argues that the jury's verdict was against the weight
of the evidence presented at trial. A Rule 59 motion setting
aside a jury's verdict and granting a new trial on the grounds
that the verdict is against the weight of the evidence should not
be granted unless the jury's verdict was "seriously erroneous."
See Piesco v. Koch, 12 F.3d 332, 343-45 (2d Cir. 1992). Under
this standard, the court is free to weigh the evidence itself and
need not view it in the light most favorable to the verdict
winner. See Bevevino v. Saydjari, 574 F.2d 676, 684 (2d Cir.
1978). The jury concluded that the evidence presented at trial
supported the finding that although defendant may have been
negligent, plaintiff's injury was caused solely because he failed to perform
a safety duty of his employment.
There is no dispute that on January 29, 1997, plaintiff was
working alone as the chief engineer in the engine room of the
Justine McAllister. There were no witnesses to the accident.
Plaintiff testified that he was cleaning the motor when his hand
got caught between the belt and pulley system, severely damaging
his hand Plaintiff's counsel argued that the equipment plaintiff
was cleaning was unguarded and that had defendant heeded
plaintiff's previous warnings, the accident could have been
Evidence adduced at trial showed, however, that plaintiff had
never notified defendant concerning the adequacy of the guard.
Defendant presented evidence in dispute of plaintiff's claim that
he turned in a hand written repair list notifying defendant that
the compressor guards were inadequate. The evidence indicated
that defendant never received this handwritten notification.
Defendant showed that plaintiff failed to complete and turn in
the required formal port engineer requisition form needed to make
such a repair. The requisition form is a pre-printed form used to
request needed parts, repairs, and tools. Defendant also
presented evidence that demonstrated plaintiff's awareness and
previous use of this form.
Further evidence showed that as the chief engineer, plaintiff
was responsible for creating and maintaining a safe work
environment in the engine room. See Trial Tr. p. 66 line 1.
This included the responsibility to "inspect the engine room and
report any problems or safety hazards," and to, "control or
eliminate . . . dangerous conditions." Trial Tr. p. 66 lines
1-10, 15-22. Indeed, on the night in question, testimony revealed
that plaintiff had not placed the compressor, which injured his
hand, in the "off" position which would have prevented it from
functioning. Rather, the compressor was left in the "automatic" position, which allowed the machine to turn on
automatically when the air pressure dropped below a certain
level. Further evidence showed that the ability to turn the
compressor "off" was fully within plaintiff's capacity as chief
Plaintiff's credibility regarding how the accident occurred was
a crucial issue for the jury's determination. Hospital records
showed that on the night plaintiff injured his hand, the
attending anesthesiologist detected a scent of alcohol from
plaintiff. Further evidence showed that plaintiff suffered from
alcoholism and that in April of 1995, plaintiff failed an alcohol
and marijuana test administered by the United States Coast Guard
which resulted in the suspension of his merchant mariner's
document, commonly known as a Z card, and his engineer's license.
A subsequent incident of working while intoxicated caused the
Coast Guard to charge plaintiff with "wrongfully serv[ing] as a
chief engineer while ...