Ina Dixon, Administratrix of the Estate of James A. Dixon, Jr. et al. v. The Bridgeport & Port Jefferson Steamboat Company (2010)

MEMORANDUM OF DECISION

The plaintiff, admimstratrix of the estate of James A. Dixon, Jr., filed the present action against the defendant, The Bridgeport and Port Jefferson Steamboat Co., on September 29, 2008.   The complaint sets forth two counts.   Count one seeks recovery under to the Jones Act, 46 U.S.C. § 30104.   Count two seeks recovery for furnishing an unseaworthy vessel pursuant to general maritime law.   The plaintiff alleges the following facts.   The decedent was employed as a purser and an able bodied seaman by the defendant.   On September 25, 2006, the decedent reported for duty aboard the Park City in Bridgeport, Connecticut.   Shortly after reporting to duty, on-board emergency drills were called by the officers of the ship.   At some point after these drills were completed, the decedent tragically had a heart attack and died.

The defendant filed a motion for summary judgment on April 27, 2010.   The defendant filed a memorandum of law in support of the motion as required by Practice Book § 11-10.   The plaintiff filed an objection to the motion and a supporting memorandum on June 14, 2010.   The defendant filed its reply on July 28, 2010.   Oral argument on the motion was heard at short calendar on September 13, 2010.

“Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Citations omitted.)  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ․ the moving party for summary judgment is held to a strict standard ․ of demonstrating his entitlement to summary judgment.”  (Citation omitted;  internal quotation marks omitted.)   Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Sherman v. Ronco, 294 Conn. 548, 554, 985 A.2d 1042 (2010).

“The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ․ To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.”  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).

The defendant argues that it is entitled to summary judgment on the Jones Act claim because the plaintiff has failed to produce any evidence showing an act or omission by which the defendant breached a duty to the decedent.   Moreover, the defendant argues that it is entitled to summary judgment on count two of the complaint because the plaintiff has failed to show an unseaworthy condition that caused injury to the decedent.   The plaintiff responds by arguing that the affidavits submitted by the defendant should not be considered and that, even if they are, there are genuine issues of material fact in dispute regarding both counts.

The plaintiff argues that the court should not consider the affidavits submitted by the defendant because they are not based on personal knowledge, do not attest to the fact that the affiants understand the obligation of an oath, do not state that they are true and accurate and contain impermissible hearsay.   Each of these arguments is unavailing.

“[Section 17-46 of the Practice Book] sets forth three requirements necessary to permit the consideration of material contained in affidavits submitted in a summary judgment proceeding.   The material must:  (1) be based on ‘personal knowledge;’ (2) constitute facts that would be admissible at trial;  and (3) affirmatively show that the affiant is competent to testify to the matters stated in the affidavit.”  Barrett v. Danbury Hospital, 232 Conn. 242, 251, 654 A.2d 748 (1995).  “Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.”   (Internal quotation marks omitted.)  Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997).

Each of the affidavits are based on personal knowledge.  “It is axiomatic that an affiant must have personal knowledge of facts to be competent to testify about those facts ․ Personal knowledge is not expressly defined in the general statutes or our rules of practice, but the phrase is commonly understood to mean knowledge gained through one's senses.   One lacks personal knowledge if one has received no sensory impressions.”  (Citation omitted;  internal quotation marks omitted.)   State v. Sunrise Herbal Remedies, Inc., Superior Court, judicial district of Hartford, Docket No. CV 07 4028460 (March 13, 2009, Bentivegna, J.) (47 Conn. L. Rptr. 455, 459).   Personal knowledge is “something which the witness actually saw or heard, as distinguished from something he learned from some other person or sources.”   Black's Law Dictionary (6th Ed.1990).   Each affiant had personal knowledge of the events aboard the Park City on the date of the decadent's death and the affidavits submitted reflect that knowledge.   Therefore, the affidavits submitted by the defendant meet this requirement.

The failure to include statements regarding the obligation of an oath is also inapposite.   While § 17-46 requires the affidavit affirmatively show that the affiant is competent to testify, it does not by its own terms require a specific statement regarding the ability to understand the nature of an oath.   Deutsche Bank National Trust Co. v. Milbury, Superior Court, judicial district of Tolland, Docket No. CV 08 5002926 (December 10, 2008, Sferrazza, J.) (46 Conn. L. Rptr. 777, 778) (noting an affidavit contained information indicating personal knowledge of relevant facts and holding:  “These averments establish that [the affiant] is competent to testify.”  [Emphasis added] ).   Moreover, the Connecticut Code of Evidence establishes a presumption in favor of competence.   Conn.Code Evid. § 6-1.   As always, the court may consider not only the facts presented within affidavits, but also the “inferences which could be reasonably and logically drawn from them.”  United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 596 (1969).   Given the information presented within the affidavits and the absence of any evidence to the contrary, it may be logically inferred that each of the affiants understands the obligation of an oath.

Likewise, the absence of a specific statement within the affidavit “that the facts averred are true and accurate” is irrelevant.   Such a statement is not required by § 17-46.   Moreover, even if such a statement were required, each affidavit predicates its factual averments with the words “being duly sworn deposes and says.”   This language is sufficient to indicate that the affidavits are true and accurate.

The plaintiff's hearsay argument also fails.  “[H]earsay is an out-of-court statement offered into evidence to establish the truth of the matters contained therein ․ In the absence of personal knowledge ․ a witness' statements ․ are hearsay.”  (Citation omitted;  internal quotation marks omitted.)  New England Savings Bank v. Bedford Realty Corp., 238 Conn. 745, 757, 680 A.2d 301 (1996).   While it is undoubtably true that hearsay evidence is inadmissible for the purpose of supporting or defeating a motion for summary judgment;  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 534, 923 A.2d 638 (2007);  exclusion of such statements does not prevent a court from considering other portions of the affidavit.   As indicated above, each of the affiants have personal knowledge of the facts and circumstances of this case.   To the extent the affidavits reflect this personal knowledge they are admissible and may be considered by this court in the context of summary judgment.

The Jones Act states:  “A seaman injured in the course of employment or, if the seaman dies from the injury, the personal representative of the seaman may elect to bring a civil action at law, with the right of trial by jury, against the employer.   Laws of the United States regulating recovery for personal injury to, or death of a railway employee apply to an action under this section.”  46 U.S.C. § 30104.   One such statute states, in pertinent part:  “Every common carrier by railroad ․ shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative ․ for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.”  45 U.S.C. § 51.

The Jones Act, through § 51, provides seamen with a cause of action against their employers under the common law of negligence.  Oxley v. New York, 923 F.2d 22, 25 (2nd Cir.1991).  “The act for the protection of railroad employees does not define negligence.   It leaves that definition to be filled in by the general rules of law applicable to the conditions in which a casualty occurs.”  Cortes v. Baltimore Insular Line, 287 U.S. 367, 374, 53 S.Ct. 173, 77 L.Ed. 368 (1932).

“The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury ․ Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action ․ Thus, [t]here can be no actionable negligence ․ unless there exists a cognizable duty of care.”  (Internal quotation marks omitted.)  Murdock v. Croughwell, 268 Conn. 559, 566, 848 A.2d 363 (2004).

Under FELA and the Jones Act, an employer has “a duty to provide its employees with a safe workplace,” which it has breached “if it knew or should have known of a potential hazard in the workplace, and yet failed to exercise reasonable care to inform and protect its employees.”  (Internal quotation marks omitted.)  Tufariello v. Long Island R.R. Co., 458 F.3d 80, 87 (2d Cir.2006).   It is, by now, axiomatic to state that “[t]he ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised ․ By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?”  (Internal quotation marks omitted.)   Jaworski v. Kiernan, 241 Conn. 399, 405, 696 A.2d 332 (1997).

“[T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law.”  (Internal quotation marks omitted.)  Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).  “[O]nly if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand.”  (Internal quotation marks omitted.)  Neuhaus v. Decholnoky, 280 Conn. 190, 217, 905 A.2d 1135 (2006).

The evidence submitted by the defendant in support of the motion for summary judgment contain the following facts.   The decedent possessed a merchant marine document issued by the United States Coast Guard.   In order to obtain this document the decedent passed a physical examination.   Both the lifeboat and fire drills occurred every few weeks on the Park City and were usually performed sequentially.   The life boat drill consists primarily of lowering and raising a wooden lifeboat by using two winches.   Each winch is operated by cranking two davits.¹  At any given time, there are four people cranking the davits.   The fire drill involves deploying a hose and using it to shoot water off of the side of the vessel.   Approximately eight individuals were involved in these drills and each took approximately five or ten minutes to complete.   The drills are required by the United States Coast Guard.   The equipment on the boat was in good working order and was inspected on a weekly basis.   Finally, the evidence shows that while the decedent did perspire some in the heat, as did the other members of the crew, he did not look sick or otherwise injured during the drills.

Applying these facts to the present case, it becomes clear that an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would not have foreseen the type of harm suffered by the decedent.   These short emergency drills were the same ones the crew had performed many times before, the work was disbursed among multiple individuals and the decedent showed no sign of illness.   Consequently, the harm suffered was not foreseeable and the defendant owed the decedent no duty to protect him from it.   Absent such a duty, the defendant is entitled to summary judgment as a matter of law.

Having concluded that the evidence proffered by the defendant is sufficient to show it is entitled to judgment as a matter of law, the burden shifts to the plaintiff as the opposing party to present evidence that demonstrates the existence of some disputed factual issue.   The plaintiff argues there is a genuine issue of material fact regarding:  (1) the defendant's decision to require sedentary workers to participate in the fire drill, (2) its failure to require cardiovascular testing before participation, (3) its failure to “modernize” the Park City by installing certain labor saving devices, (4) its failure to hire additional workers and (5) its decision to call the drills at that particular time and in that particular order.   All of these arguments fail for the same reason;  while these alternatives might have been more protective of the crew, the obligation to implement these alternatives only arises if the defendant has a duty to act.   Put a different way, the presence of these alternatives does not make the unfortunate harm suffered by the decedent foreseeable and therefore does not establish a genuine issue of material fact relating to the element of duty.

Because the defendant has carried its burden of proof and the plaintiff has failed to produce any evidence showing the existence of a genuine issue of material fact, the motion for summary judgment is granted as to count one of the complaint.

Unseaworthiness is a claim under general maritime law based on the vessel owner's duty to ensure that the vessel is reasonably fit to be at sea.   To prevail on this claim, the plaintiff must “prove that the [vessel] was insufficiently or defectively equipped ․ and that his injuries resulted from the unseaworthy condition of the vessel.”  (Citation omitted.)  Oxley v. New York, supra, 923 F.2d 25.

“To satisfy the warranty of seaworthiness, a shipowner is not required to furnish the best possible ship, gear, or equipment but must simply furnish a ship, gear and equipment which is reasonably fit and suitable for its intended purpose.”  Morton v. Berman Enterprises, 669 F.2d 89, 91 (2nd Cir.1982).   “The standard is not perfection, but reasonable fitness;  not a ship that will weather every conceivable storm or withstand every imaginable peril of the sea, but a vessel reasonably suitable for her intended service.”  Id., 92.

In order to prove causation in this context, a plaintiff must demonstrate:  “(1) that the unseaworthiness played a substantial part in bringing about or actually causing the injury;  and (2) that the injury was either a direct result or a reasonably probable consequence of the unseaworthiness.”  Saleh v. United States, 849 F.Sup. 886, 895 (S.D.N.Y.1994).   Although “[t]he right of the jury to pass upon the question of fault and causation must be most liberally viewed”;  (internal quotation marks omitted.)  Oxley v. New York, supra, 923 F.2d 25;  in this context the jury “is not permitted to speculate on proximate cause in the absence of reasonably persuasive proof that the negligence was the probable cause of the injury.”  Fitzgerald v. A.L. Burbank & Co., 451 F.2d 670, 681 (2d Cir.1971).

It is not argued that the Park City was defectively equipped.   Indeed, such an argument would be unavailing.   There is abundant and undisputed evidence on the record indicating that the equipment used in the drills was in good working order and was inspected on a regular basis.   Instead, the plaintiff argues that the Park City was insufficiently equipped.   Specifically, the plaintiff alleges in the complaint that the Park City is unseaworthy because the defendant failed to:  (1) train its staff in the performance of emergency drills, (2) staff the boat adequately, (3) give employees more advance notice of the drills, (4) require medical examinations of its crew before holding the drills, (5) perform the drills at an appropriate time, and (6) install certain labor saving devices.

Although the plaintiff is correct in asserting that some such conditions might render a ship unseaworthy under the current state of maritime law;  e.g. Waldron v. Moore-McCormack Lines, Inc., 386 U.S. 724, 726-27, 87 S.Ct. 1410, 18 L.Ed.2d 482 (1967) (failure to assign sufficient manpower to a given task may render a ship unseaworthy);  an award of summary judgment would nonetheless be proper absent evidence showing a causal link between these conditions and the injury alleged.   The undisputed evidence submitted by the defendant, as recounted in relation to the Jones Act above, indicates that these emergency drills were performed aboard the Park City on a regular basis using the same equipment under similar conditions.   The plaintiff has submitted no evidence showing that any of the alleged deficiencies were a factual or proximate cause of the decedent's death.   Absent such evidence, no reasonable jury could conclude that the above mentioned conditions caused the injury.   For this reason, summary judgment is granted on count two of the plaintiff's complaint.

Howard F. Zoarski

Judge Trial Referee

FOOTNOTES

FN1. According to the affidavit of Robert Decaminada:  “The davits have to be cranked from the approximate [twelve] o'clock position to the [two] o'clock position, and then cranked back to the [twelve] o'clock position.”.  FN1. According to the affidavit of Robert Decaminada:  “The davits have to be cranked from the approximate [twelve] o'clock position to the [two] o'clock position, and then cranked back to the [twelve] o'clock position.”

Zoarski, Howard F., J.T.R.