The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Plaintiffs Joseph and Maria Burke (collectively, the "Burkes" or "plaintiffs") bring this maritime and derivative torts action against defendants Quick Lift, Inc., ("Quick Lift") and Staten Island Boat Sales ("SIBS") (collectively, "defendants"), alleging that the Burkes were injured as a result of defendants' failure to properly install a piece of equipment on a yacht purchased by the Burkes. This Court has jurisdiction over the Burkes' claim under 28 U.S.C. §§ 1333 and 1367. Presently before the Court is defendant SIBS's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons that follow, the motion is denied.
The facts described below are taken from the parties' depositions, affidavits, exhibits and defendant's Local Rule 56.1 statement of facts. Upon consideration of a motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party. See Capobianco v. City of New York, 422 F.3d 47, 50 (2d Cir. 2001).*fn1
In 2000, Joseph Burke purchased a powerboat from SIBS. (Defs.' 56.1 ¶ 1.) The powerboat purchased by Joseph Burke was a Carver 450 Voyager Pilothouse, manufactured by Carver Boat Corporation ("Carver"). (Defs.' 56.1 ¶ 2.) Joseph Burke accepted the 45-foot long powerboat on or about June 9, 2000, and executed a document whereby he confirmed that the vessel was in good working condition and met all of his expectations. (Id.)
In 2000, SIBS purchased a davit which was manufactured and installed on the powerboat by Quick Lift. (Defs.' 56.1 ¶ 3.) The Quick Lift invoice reflects that the davit purchased by SIBS for installation on Burke's boat was a Model QLH 8000. (Defs.' 56.1 ¶ 4.) The davit was shipped to SIBS from the Quick Lift facility in Miami, Florida. (Id.) A davit is a crane like device that is utilized for raising and lowering boats, anchors, etc. (Defs.' 56.1 ¶ 4, n.1.) In the realm of luxury powerboats, the davit is generally utilized to raise and lower small auxiliary vessels, also known as tenders or dinghies. (Id.) It is comprised of a shaft or standpipe, which is mounted to the boat, and a "boom" which extends out from the standpipe. (Id.)
The davit was installed on SIBS's premises by two Quick Lift employees, Daniel Piles ("Piles"), who was also the Vice-President of Sales, and his brother, Salvatore Piles, Jr. (Defs.' 56.1 ¶ 5.) Although Piles had done some 300 davit installations over the course of his 10-year career, he believed that the date in question was the first time he had installed a davit on a Carver boat. (Defs.' 56.1 ¶ 10.) Piles had seen factory installations on other Carver boats, but only by looking from the outside. (Id.) As such, Piles did not know exactly how the davits had been installed by Carver and he did not know if they were installed in the same manner in which he had installed the davit on the Burkes' boat. (Id.)
Michael Omanski, a Regional Service Manager for Carver, testified that davits are meant to be installed in a particular location "on the aft section of the bridge" of the subject boat. (Defs.' 56.1 ¶ 11.) Indeed, there is a round-shaped "landing" on the upper deck of the Carver boat on which the round, upper plate of the davit is supposed to be mounted. (Id.) The landing is constructed of fiberglass and there is an aluminum plate laminated within the upper deck. (Id.) The aluminum plate is three-eighths of one inch thick and shaped like a doughnut. (Id.) Significantly, there is no such aluminum plate embedded in the lower deck, where the davit's base is mounted. (Id.) The area where the davit is installed was specifically engineered for this purpose by Carver. (Defs.' 56.1 ¶ 12.) Indeed, the very reason why the embedded plate on the upper deck was doughnut-shaped was to accommodate a davit. (Id.) In effectuating davit installations, Carver secures the upper plate of the davit to the upper deck by drilling and screwing or "tapping" directly into the upper deck and the doughnut-shaped aluminum plate embedded within. (Defs.' 56.1 ¶ 13.) The base of the davit is "through bolted" to the lower deck and to an aluminum backing plate which is added. (Defs.' 56.1 ¶ 14.) Omanski testified that the "through bolt" installation is easier when done while the boat is being assembled, but can still be done in an after-market installation. (Id.) That is, once the boat is constructed it is still possible to add the backing plate and through bolt and use washers and locknuts to secure the base down. (Id.)
James Berkebile, Vice President for New Product Development for Carver Boat Corporation inspected the subject boat. Upon looking at the location where Quick Lift's davit was installed in this case, Berkebile testified that the davit was installed in the proper location. (Defs.' 56.1 ¶ 15.) Indeed, the davit was installed in the same location as the factory-installs by Carver, but it was done "in a different manner." (Id.) Specifically, Berkebile stated that, when the davit is factory-installed, a plate is added and the davit is through bolted. (Id.) Omanski defined "through bolted" as twining a bolt through the top of the davit's bottom base plate and securing it on the bottom with washers and a nut. (Id.) Piles had mounted the Quick Lift davit's base plate to the boat's lower deck "in a different manner than a factory-installed installation." (Id.)
Significantly, Piles admitted that while he knew of the location on the subject boat where davits were installed by Carver, he did not know the details of the manner of proper installation. (Defs.' 56.1 ¶ 16.) In installing the davit on the Burkes' boat, Piles opened a hole in the area of the upper deck which had been designed to accept the davit. (Defs.' 56.1 ¶ 17.) Upon opening the hole in the upper deck, Piles physically observed the aluminum plate embedded within the upper deck in that area. (Defs.' 56.1 ¶ 18.) Piles then applied adhesive and, using "sheetmetal" screws, he screwed the top plate of the davit into the upper deck and the embedded, doughnut-shaped aluminum plate. (Id.) After he installed the top plate on the upper deck, Piles then installed the base plate on the lower deck. (Defs.' 56.1 ¶ 19.) To do so, he applied adhesive under the base plate and used "[i]nch and a quarter stainless steel" self-tapping, sheetmetal screws which he screwed into the lower deck. (Id.) Piles testified that he thought he was screwing into an aluminum plate that he believed was embedded in the fiberglass deck. (Defs.' 56.1 ¶ 20.) Although he had pre-screwed the holes into the lower deck, Piles did not recall if he observed any metal shavings. (Id.) Moreover, although Piles acknowledged that he can generally feel if he is hitting metal while drilling such holes, he could not recall if he had felt metal when he pre-drilled the holes into the lower deck. (Id.) As such, Piles acknowledged that he did not know whether he was screwing into a fiberglass mat, plywood, or anything else as he installed the base plate on the lower deck. (Id.) Piles did not use any "through bolts" or other anchoring in installing the davit's base plate on the lower deck. (Defs.' 56.1 ¶ 21.) When asked if he could have through-bolted the base plate, Piles stated that there was no room on the underside of the lower deck to have done so. (Id.) As noted, however, the manufacturer uses through bolting and an aluminum backing plate in mounting the base plate during post-manufacture davit installations on the subject Carver boat. (Defs.' 56.1 ¶ 22.) According to plaintiff Joseph Burke, after the davit's mounting apparatus failed, it was reinstalled by another davit company, which installed a large metal plate underneath the bottom plate of the davit and through-bolted the davit's bottom plate to the metal plate underneath. (Id.)
SIBS asserts that Piles admitted that SIBS had no direct involvement in the manner of the installation of the subject davit. (Defs.' 56.1 ¶ 23.) Plaintiffs contend, however, that an SIBS employee named "Joey"*fn2 directed Piles where to install the davit and, therefore, SIBS should be considered as being involved in the installation. (Pls.' Response to Defs.' 56.1 ¶ 23.) However, according to the Affidavit of Joseph "Joey" Deluca, who was the Parts Manager for SIBS in 2000 and responsible for ordering the davit from Quick Lift, his involvement with the davit ended when Quick Lift took the davit out of his parts department on the date of the installation. (Defs.' 56.1 ¶ 24.) Indeed, Deluca stated that he never saw the location on the boats where the davits were to be installed, and he never gave any direction to Quick Lift regarding the means, manner or method of their davit installation. (Id.) Piles testified, however, that "Joey" told him that the boat was reinforced and instructed Piles as to the location for the installation. (Piles Dep. 41:19-22; 42:19-23; 92:3-10, Mar. 22, 2007.) Piles did nothing to confirm "Joey's" statement that the deck was reinforced, i.e., he did not contact the manufacturer. (Defs.' 56.1 ¶ 27.) Neither Piles nor Quick Lift maintained a library of manufacturer's plans, specifications or instructions regarding the different boats on which davits were installed. (Id.)
On April 19, 2005, Maria Burke was allegedly injured when the davit's bottom mounting apparatus failed while lifting a dinghy out of the water. (Defs.' 56.1 ¶ 6.) According to plaintiffs' expert, Jonathan J. Howe, Accredited Marine Surveyor, he inspected the subject boat and davit on May 4, 2005, which is approximately two weeks after the April 19, 2005 accident. (Defs.' 56.1 ¶ 28.) He estimated that the total weight of the dinghy was approximately 500 pounds, which was within 800-pound nominal lifting capacity of the davit. (Id.) Howe's report concluded as follows:
In conclusion, it is my opinion that the failure of the davit was due to poor installation of the davit base, including use of self-tapping screws, minimal diameter of the base plate, poor adhesion of the polyurethane adhesive to the fiberglass and especially, lack of thru bolts and a backing plate. The davit itself did not fail, rather the installation was at fault.
On August 5, 2005, plaintiff filed a complaint against defendants Quick Lift and SIBS, alleging a maritime tort claim against both defendants for negligent installation, and a derivative claim for loss of consortium. Specifically, the complaint alleges, among other things, the following: "SIBS, acting through Quick Lift, and Quick Lift, had a duty to the Burkes to properly install the davit. They breached that duty, and the Burkes have suffered damages that SIBS's and Quick Lift's negligence proximately has caused . . . ." (Compl. ¶ 34.) The complaint asserted two claims against SIBS - namely, negligence (Count One) and breach of warranty (Count Two). On June 8, 2006, the Court "so ordered" a stipulation discontinuing the breach of warranty cause of action with prejudice. Therefore, the only remaining claim against SIBS is negligence.
On October 12, 2005, Quick Lift filed a third-party complaint against Carver, alleging that any damages suffered by the Burkes were caused ...