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MODLIN v. McALLISTER BROTHERS

United States District Court, S.D. New York


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 [his] license was in the possession of the Coast Guard." As a result of this later incident, plaintiff was forced to surrender his Z card and his engineer's license to the Coast Guard.

  Defendant also provided evidence that plaintiff misrepresented, in his application for employment to McAllister Brothers, Inc., his qualifications as a chief engineer and that he possessed the appropriate and valid mariner's papers, i.e. his Z card and his engineer's license. The facts showed that as a result of his working while intoxicated, plaintiff had been forced to surrender his license and Z card. Defendant argued that they relied upon plaintiff's misrepresentation that these documents were valid in offering him a position.

  In light of these facts, the jury's verdict was not seriously erroneous as the jury's verdict is not against the weight of the evidence. Plaintiff Rule 59 motion to set aside the jury's verdict and grant a new trial is therefore denied. B. Primary Duty Charge was Appropriate

  Plaintiff also argued that the primary duty charge was inappropriate because he was not the master of the vessel, but only assumed the duty of a lower echelon employee. The primary duty doctrine, however, applies generally to a breach of contractual duty by an employee and does not depend upon the rank of the employee. See Dixon v. United States, 219 F.2d 10, 16 (2d Cir. 1955); see also Dunbar v. Bronx Towing Line, Inc., 275 F.2d 304, 307 (2d Cir. 1960). The fact that plaintiff was not the master of the vessel does not preclude the defense as long as plaintiff had specific employment obligations to protect against the injury that had been sustained. Id. The evidence presented at trial indicated that plaintiff assumed the duty of chief engineer and was responsible for the safety, maintenance, and repair of the engine room. As the sole chief engineer of the sea vessel, plaintiff had expertise and knowledge of the engine room that the ordinary seaman would not have had upon visual inspection and servicing of the ship. The ordinary seaman would not have reasonably known of any potential safety hazards in the engine room. However, plaintiff was not simply an ordinary seaman. He was hired as a licensed chief engineer with a duty to notify and take corrective action when faced with a known dangerous condition. In fact, plaintiff acknowledged this special knowledge and expertise in his testimony that he had specifically recognized and reported the need for a safety repair. The argument given by plaintiff regarding lower echelon status is therefore without merit and the charge was appropriately given.

  C. Evidence Presented at Trial Supports a Breach of the Primary Duty Doctrine

  Plaintiff further argued that the evidence presented at trial did not support a jury finding that he breached the primary duty doctrine. Under the primary duty doctrine, defendant must prove by a preponderance of evidence, that plaintiff: (1) failed to perform a duty which he consciously assumed as a term of his employment; (2) was injured due to the dangerous condition that he controlled and could have protected against; and (3) that his injury was caused by the knowing failure to carry out his responsibilities. LEONARD SAND, ET. AL., MODERN FEDERAL JURY INSTRUCTIONS: CIVIL, § 90-31 (Matthew Bender, 2003).

  1. Failure to Perform Assumed Duty of Employment

  There was ample evidence for the jury to conclude that plaintiff failed to perform a duty which he consciously assumed as a term of his employment. As chief engineer, plaintiff acknowledged that he was responsible for performing "any necessary maintenance or repairs in the engine room." Trial Tr. November 28, 2000, p. 66 lines 1-10, 15-22. This included the responsibility to "inspect the engine room and report any problems or safety hazards," and to, "control or eliminate . . . dangerous conditions." Id.

  A lack of necessary protective guards on the compressor would constitute a dangerous condition that plaintiff was responsible for under his term of employment. Plaintiff claimed that he notified defendant of the missing protective guards and, therefore, should not have been held responsible. Defendant argued, however, that no such notification was ever given by plaintiff. The evidence at trial was reasonably sufficient for the jury to have concluded that plaintiff's injury was caused by a failure to notify defendant of the dangerous condition in the engine room, which was a duty plaintiff consciously assumed as a term of employment.

  2. Control of Dangerous Conditions

  There was also sufficient evidence presented at trial for the jury to conclude that plaintiff had been injured by a dangerous condition that he controlled and could have protected against. During trial, plaintiff acknowledged that it is "unsafe to service or work on the air compressors while they are on and running." Trial Tr. November 28, 2000, p. 72 lines 15-25. Plaintiff further testified that his injury occurred while he had been servicing the "compressor commutator," when both the motor and compressor itself, were in full operation. Excerpt of Trial Tr. November 27, 2000, p. 29 lines 17-19. He worked on the compressor while it was in the automatic position, rather than switching it off before attempting to reach in with his hand to adjust it. Trial Tr. November 27, 2000, p. 99-100. Moreover, plaintiff testified, "nobody works on any equipment while at sea" because it would be extremely dangerous due to the jostling of the boat traveling over water. Trial Tr. November 28, 2000, p. 75 lines 22-25; p. 76 lines 1-8. Plaintiff was nonetheless injured while the vessel was at sea.

  From this testimony it was reasonable for a jury to conclude that plaintiff possessed a reasonable ability to control and protect against his own injury by simply adhering to the safety recommendations he described at trial. The issue of whether or not plaintiff was in control and could have protected against the dangerous condition was an issue for the jury to decide. The jury reasonably resolved this issue against plaintiff and in favor of defendant.

  3. Knowing Failure to Carry out Responsibilities

  Further testimony adduced at trial indicates that plaintiff's injury had been caused by a knowing failure to carry out his responsibilities to protect against unsafe conditions. Specifically, a plaintiff must know of the dangerous conditions and fail to act and correct them after having a reasonable opportunity to do so. SAND ET. AL., supra at § 90-31. Contrary to plaintiff's contention, defendant denied at trial that any notification regarding the lack of protective guards on the compressor had been received from plaintiff. The jury reasonably concluded that by failing to give notification, plaintiff in fact had failed to carry out his responsibility to protect against such an unsafe condition.

  Furthermore, plaintiff stated that he had been working on the Justine McAllister for approximately four to six months. Trial Tr. dated Nov. 27, 2000 p. 4 lines 14-16. This supports a finding that plaintiff had a reasonable amount of time to have corrected or notified defendant of any unsafe conditions in the engine room. The issue of whether plaintiff knew of the dangerous condition and failed to carry out his responsibility to protect against the condition in a timely manner was therefore, an issue for the jury to decide. The jury reasonably resolved this issue against plaintiff and in favor of defendant.

  III. CONCLUSION

  The jury instructions were correct and consistent with the evidence properly before the jury for its consideration. Furthermore, the jury's verdict was supported by the evidence and therefore was not seriously erroneous or substantially unjust. The motion to set aside the jury's verdict is denied.

 

SO ORDERED.
20040714

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