The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge
Plaintiff Christopher Lisowski seeks damages under the Jones Act, 46 U.S.C. § 30104, and the general maritime law of the United States for a back injury that he claims arose from two accidents that allegedly occurred aboard a vessel owned by Defendant Reinauer Transportation Co., Inc. due to Reinauer's negligence and the unseaworthiness of its vessel. (Seaman's Complaint for General Damages, Without Prepayment of Costs, Under 28 U.S.C. § 1916, on a Jones Act Claim, and a Claim under the General Maritime Law ("Complaint") (Docket Entry # 1) at 1-3.)
For the following reasons, Reinauer's motion for summary judgment is GRANTED.
When deciding a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party and must draw all permissible inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The court will not accept as fact allegations lacking evidentiary support, Fed. R. Civ. P. 56(e), or statements of fact without citations to the record, Local Civil Rule 56.1(e).
Summary judgment is appropriate when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law," Fed. R. Civ. P. 56(c), i.e., "where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party," Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001). "A fact is 'material' for these purposes if it might affect the outcome of the suit under the governing law. An issue of fact is 'genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
The moving party has the burden of establishing the absence of a genuine issue of material fact. Liberty Lobby, 477 U.S. at 256. If the moving party meets its burden, the non-moving party must then "set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2).
Viewed in the light most favorable to Lisowski, the non-moving party, the facts presented to the court in the parties' Rule 56.1 Statements are as follows:
On June 9, 2003, when Lisowski was working as a tankerman aboard Barge 145, a vessel owned and operated by Reinauer, he slipped on a loose grate. (Affidavit of Gino A. Zonghetti ("Zongh. Aff.") (Docket Entry # 52), Exh. C ("Lisowski Dep.") at 133-34, 167.) The grate was loose because the bolts securing the grate had been removed in order to perform maintenance, but had not been replaced. (Zongh. Aff., Exh. D ("Holzman Dep.") at 13.)
Lisowski was "pretty shaken up" by the incident and reported it immediately to his supervisor, Chief Mate Mark Holzman. (Lisowski Dep. at 167.) Holzman observed that Lisowski was scared and "white as [a] piece of paper." (Holzman Dep. at 12-13.) Although Lisowski showed Holzman that his back had been scratched, (Lisowski Dep. at 175), he did not tell Holzman that his back was injured, (Holzman Dep. at 46). Instead, he told Holzman that he was "okay." (Lisowski Dep. at 175.) Lisowski did not seek or feel that he required medical attention, (id. at 176-77), and he continued to work for the remainder of his tour of duty. (Holzman Dep. at 46.) In fact, it was not until after Lisowski's second accident, on July 3, 2003, that he "actually realized that [he] had initially hurt" himself on June 9, 2003. (Lisowski Dep. at 137.) Lisowski never told his physician, Dr. Alan Gillick, about his June 9, 2003 slip. (Zongh. Aff., Exh. H ("Gillick 1st Dep.") at 71.) The first time that Dr. Gillick, also Lisowski's expert witness, learned about Lisowski's June 9, 2003 accident was when Lisowski's counsel wrote him a letter about it. (Id. at 22-23.)
Early on the morning of July 3, 2003, between 1 A.M. and 2 A.M., Lisowski was again working aboard Barge 145 when he slipped on the vessel's deck near the number 4 pump and "wrenched" his back. (Lisowski Dep. at 239.) The deck was slippery because the number 4 pump had been leaking oil. (Holzman Dep. at 21-22.) Holzman worked with Lisowski on Barge 145 from 1 A.M. to about 4:30 A.M. (Id. at 51, 55.) Although Lisowski reported to Holzman that the deck near the number 4 pump was slippery, Lisowski did not, while Holzman was on the barge, tell Holzman that he had wrenched his back or otherwise been injured. (Id. at 54-55.)
Later on the morning of July 3, 2003, Lisowski reported to Holzman that his back hurt. (Lisowski Dep. at 193-94.) He told Holzman that he did not know how he had hurt his back, but that it could have been caused by slipping on the deck, sleeping on it wrong, or twisting a valve. (Id. at 194.) Lisowski later told Timothy Bishop, the captain of Barge 145 and its tugboat, that he had hurt his back either sleeping on it wrong or twisting a valve. (Id. at 198.) The personal injury report filled out by Bishop on July 7, 2003, which Lisowski did not sign, states that Lisowski had "trouble getting out of bed - don't know what he did to back - maybe turning valves prior watch or small slip on deck - no recollection of incident causing injury." (Zongh. Aff., Exh. F.) Lisowski did not tell Holzman about his July 3, 2003 slip until several days or even weeks later, when Holzman was discussing with him what might have caused his back pain. (Holzman Dep. at 36, 50.)
Dr. Gillick first saw Lisowski on August 15, 2003. (Gillick 1st Dep. at 5.) Lisowski then told Dr. Gillick that he injured his back on July 3, 2003, sustaining "twisting injury to his back on a wet deck on the ship." (Id. at 69.) At his deposition, Dr. Gillick stated that Lisowski's two incidents aboard Barge 145 "could" have exacerbated a condition already present in Lisowski's back known as spondylolisthesis, thereby causing him pain and necessitating surgery to relieve that pain. (Id. at 24-26.)*fn1 Dr. Gillick also stated that either of Lisowski's accidents could on its own have aggravated Lisowski's spondylolisthesis. (Zongh. Aff., Exh. I ("Gillick 2nd Dep.") at 22-23.) According to Dr. Gillick, twisting a valve could have aggravated Lisowski's spondylolisthesis, depending on the size of the valve. However, it was unlikely that sleeping the wrong way could cause persistent disabling symptoms of the kind reported by Lisowski. (Id.) Determining whether twisting the valve or slipping caused the aggravation of Lisowski's symptoms would depend on "the circumstances of what [Lisowski] was going through from a pain standpoint specifically related to [these] incidents." Dr. Gillick stated that he did not know these circumstances sufficiently to be able to say what caused Lisowski's symptoms. (Id. at 28.) Finally, Dr. Gillick testified that a previous ...