[B]Case Name: [/B][I]George Brown et al.,v Reinaur Transportation Companies, LLC, et al.
[/I][B]Date Decided: [/B]September 10, 2009
[B]Court: [/B]Supreme Court, Appellate Division, Third Department, NY
[B]Judge: [/B]Judge Mercure, Judge Rose Judge Kane Judge Garry
[B]Citation: [/B]2009 WL 2877605 (N.Y.A.D. 3 Dept.)[B]Background: [/B]
The defendants appeal from an order granting plaintiff’s motion to preclude expert testimony and granting plaintiff’s motion for partial summary judgment on the issue of liability Jones Act.
In July 2003, plaintiff George Brown (“Brown”) was injured allegedly as a result of a fall from a ladder on a barge owned and operated by defendants, his employer.
While Brown was attempting to descend from the barge’s deckhouse roof, where he had been filling tanks that supplied fuel to discharge the barge’s cargo, an antenna pole he was using as a handrail broke.
Brown brought an action pursuant to the Jones Act alleging defendants were negligent in allowing unsafe conditions to exist on the barge and failing to provide Brown with a safe place to work. Furthermore, he alleged that the barge was unseaworthy, and that he is entitled to maintenance and cure.
Plaintiffs moved for preclusion of the testimony of defendants’ medical expert and for partial summary judgment on liability under the Jones Act. Supreme Court granted both motions and denied defendants’ subsequent motions for reargument of the order precluding their expert’s testimony and for reargument and renewal of the order granting summary judgment. Judgment was ultimately entered in the amount of $5.2 million which the defendants are appealing.
Did this Court rule in favor of defendants’ appeal of the granting of plaintiff’s partial motion for summary judgment, motion to exclude defendants’ expert’s testimony, and the judgment in amount of $5.2 million?
[/B]Under the Jones Act the rights afforded to railroad workers’ under the Federal Employers Liability Act, including a bar against comparative negligence for violations of statutes enacted for the safety of employees, are extended to seaman as well. The bar of comparative negligence also extends to instances of violating a Coast Guard regulation.
Plaintiffs alleged that defendants were negligent [I]per se [/I]based upon a violation of a Coast Guard regulation. The regulation, 46 CFR 42.15-75(d),* entitled “Protection of the Crew” provides that satisfactory means (guard rails, life lines, gangway) shall be provided for the protection of the crew in getting to and from their quarters, the machinery space and all other parts used in the necessary work of the vessel.
This Court found that the plaintiffs established enough evidence to show a violation of this regulation and thus, granted plaintiffs’ motion for summary judgment. The plaintiffs contended that the defendants violated the regulation because the ladder attached to the deckhouse did not provide [I]satisfactory means for the protection of the crew [/I]in accessing the deckhouse roof.
The Court found, based on a retired Coast Guard Commander’s expert testimony, that defendants were in violation of the regulation and were liable to the plaintiffs under the Jones Act for per se negligence.
The defendants, in response, presented an affidavit of their expert, a retired Coast Guard Lieutenant Commander who asserted primarily that the regulation does not apply to the vessel because it is an "unmanned barge’. The [I]sole source [/I]of authority for this assertion came from a response, by the Coast Guard, to a question raised during a question and comment period.
The Court found that the Coast Guard’s response did not establish that barges must be considered to be unmanned and exempt from regulations designed to protect the safety of the barges crew.
Furthermore, defendants failed to present evidence contrary to proof presented by the plaintiff that, (1) plaintiff was a member of the barge’s crew, (2) the injury was of the type that the regulation was designed to protect against, (3) and that compliance with the regulation was not more dangerous than noncompliance. *Accordingly, the Court affirmed the granting of plaintiffs’ partial motion for summary judgment.
The Defendants’, while they requested an apportionment for preexisting injuries to the award, did not object to plaintiffs’ contention that the burden of proof regarding preexisting conditions and the apportionment of damages is placed on the defendants.
This Court affirmed the award.
Under the Jones Act, if a defendant is in violation of a regulation enacted to ensure a safe workplace for seaman and such violation causes plaintiff’s injury then they are per se negligent under the Jones Act. [/B]
[B]Also, as noted in the case, defendants may apportion damages upon showing that the plaintiff’s injuries were a result or that a pre-existing condition(s) played a part. [/B]