Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

MODLIN v. McALLISTER BROTHERS

July 14, 2004.

MARVIN MODLIN, Plaintiff,
v.
McALLISTER BROTHERS, INC., Defendant.



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 denied.

I. BACKGROUND

  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's body.

  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.

  II. DISCUSSION

  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 prevented.

  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 engineer.

  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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.