United States District Court, S.D. New York
July 14, 2004.
MARVIN MODLIN, Plaintiff,
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
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 [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
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,
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
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.
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.
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