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Vasquez v. GMD Shipyard Corp.

September 15, 2009

CIRA BAUTISTA VASQUEZ, INDIVIDUALLY, ON BEHALF OF VICTOR ARTURO MEDINA BAUTISTA, A MINOR AND AS REPRESENTATIVE OF THE ESTATE OF GUMERSINDO MEDINA DUARTE, DECEASED, ALSO KNOWN AS ARTURO MEDINA DUARTE, PLAINTIFF-APPELLANT,
v.
GMD SHIPYARD CORP., DEFENDANT-CROSS-CLAIMANT-CROSS-DEFENDANT-APPELLEE. ALLIED TRANSPORTATION LLC, AS OWNER AND OPERATOR OF T/B ATC 23, DEFENDANT-CROSS-CLAIMANT-CROSS-DEFENDANT,
FCE INDUSTRIES, LTD., DEFENDANT-CROSS-DEFENDANT.



SYLLABUS BY THE COURT

Appeal from a judgment entered after a bench trial in the United States District Court for the Eastern District of New York (Block, J.). A welder fell to his death while ascending the wall of a tank aboard a vessel in dry dock at the Brooklyn Navy Yard. The estate and family sued the general contractor, asserting claims under, inter alia, New York's "Scaffold Law," N.Y. Labor Law § 240(1). The district court found that the decedent, in order to let a co-worker descend the same ladder the decedent was using to ascend, had stepped off the ladder, and began climbing up the "angle irons." The court dismissed all claims, concluding that the general contractor was not negligent, and was not liable for failing to provide appropriate safety equipment. We affirm the judgment, and publish this opinion chiefly to clarify that the district court had federal maritime jurisdiction.

The opinion of the court was delivered by: Dennis Jacobs, Chief Judge

Argued: August 26, 2009

Before: JACOBS, Chief Judge, NEWMAN, Circuit Judge, and Trager, District Judge.*fn1

Decedent Gumersindo Medina Duarte ("Medina") died in a tragic accident while working aboard the Tank Barge ATC 23 on January 23, 2007. The vessel was in a "graving dock," a species of dry dock, at the Brooklyn Navy Yard. Medina, who was working on the floor of a tank, needed to get to the upper deck to adjust the regulator for his torch, and began climbing a ladder affixed to the tank wall. It is undisputed that, immediately prior to his fall, he stepped off the ladder in order to let a co-worker descend.

Medina's estate, wife, and child (all represented by his wife)*fn2 brought suit in the United States District Court for the Eastern District of New York (Block, J.) against the general contractor overseeing repairs to the barge, GMD Shipyard Corp. ("GMD").*fn3 After a bench trial, the court entered judgment on behalf of GMD on all claims.

BACKGROUND

The owner of Tank Barge ATC 23 contracted with defendant GMD to refit it so it could transport a particular kind of oil. GMD's subcontractor employed Medina as a part time welder.

On the morning of the accident, Medina was welding coils and refit pipes on the floor of the No. 2 starboard tank. To get to the deck, Medina had to climb two ladders, each approximately twenty feet long. The first runs from the base of the tank to a small platform, the second from the platform to the deck. The wall of the tank is reinforced by "angle irons," lateral projecting fins spaced at regular intervals of two-and-a-half feet from top to bottom. Each angle iron protrudes between five to eight inches from the wall. See Vasquez v. FCE Indus. Ltd., No. 07 cv 1121(FB), 2008 WL 4224396, at *1 (E.D.N.Y. Sept. 10, 2008).

Medina began ascending the first ladder while a coworker, Mario Concepcion, was descending from the platform. Medina and Concepcion met approximately six to eight feet from the bottom of the tank. To let Concepcion pass, Medina stepped off the ladder onto an angle iron.

The precise sequence of subsequent events is disputed. At a bench trial, the district court found the facts to be as follows:

Rather than return to the tank floor and wait for Concepcion to finish descending, Medina moved laterally off the ladder and stepped onto one of the angle irons that provided structural support to the tank wall. Then, instead of waiting for Concepcion to pass him and then returning to the ladder, Medina began climbing up the tank wall itself by means of the angle irons. Moments after passing Concepcion, Medina lost his grip and fell from the angle irons to the floor of the tank [and died]. 2008 WL 4224396, at *2.

Plaintiff does not dispute that Medina moved off the ladder, but maintains that there was insufficient evidence for the court to conclude that Medina actually "began climbing up" the angle irons.

On the basis of its factual finding, the district court dismissed all plaintiff's causes of action, holding, inter alia, that Medina's injury was not caused by a dangerous condition on the premises (Labor Law § 200); that GMD was not required to provide additional safety devices under New York's Scaffold Law (Labor Law § 240(1)); and that the New York Industrial Code provision regarding "hazardous openings" (Labor Law § 241(6)) was inapplicable.

DISCUSSION

In reviewing a judgment entered after a bench trial, we are to "give due regard to the trial court's opportunity to judge the witnesses' credibility," and we "must not . . . set aside" findings of fact "unless [they are] clearly erroneous." Fed. R. Civ. P. 52(a)(6); see also Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985). "Under this standard, factual findings by the district court will not be upset unless we are 'left with the definite and firm conviction that a mistake has been committed.'" FDIC v. Providence College, 115 F.3d 136, 140 (2d Cir. 1997) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." ...


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