McCONVILLE v. REINAUER TRANSPORTATION COMPANIES LP (2007)

In an action to recover damages for personal injuries, etc., the defendants appeal from an interlocutory judgment of the Supreme Court, Richmond County (Gigante, J.), dated March 2, 2006, which, after a jury trial on the issue of liability, is in favor of the plaintiffs and against them.

ORDERED that the interlocutory judgment is reversed, on the law, and the matter is remitted to the Supreme Court, Richmond County, for a new trial on the issue of liability, with costs to abide the event.

 The defendants Reinauer Transportation Companies, LP, and Reinauer Transportation Companies, Inc. (hereinafter collectively Reinauer), correctly argue that the trial court erred in failing to charge the jury with the applicable law pursuant to the Longshore and Harbor Workers' Compensation Act (hereinafter the LHWCA) (33 USC § 905[b] ).  This court previously determined in this case that Reinauer could only be held liable pursuant to the LHWCA for negligence in its capacity as owner of the crane barge on which the plaintiff Edward McConville (hereinafter the injured plaintiff) was injured, not in its capacity as the injured plaintiff's employer (see McConville v. Reinauer Transp. Cos., L.P., 16 A.D.3d 387, 791 N.Y.S.2d 591).   However, the trial court instructed the jury that if it found that Reinauer violated certain federal and state safety regulations, it could consider this as evidence of negligence.   Although evidence that Reinauer violated these regulations might have established that Reinauer was negligent in its capacity as an employer (see 33 USC § 941;  29 CFR § 1926.550;  12 NYCRR § 23-1.3;  Howlett v. Birkdale Shipping Co., 512 U.S. 92, 100-101, 114 S.Ct. 2057, 129 L.Ed.2d 78;  Scindia Steam Nav. Co. Ltd. v. De Los Santos, 451 U.S. 156, 170, 101 S.Ct. 1614, 68 L.Ed.2d 1;  Vencius v. Morania Oil Tanker Corp., 210 A.D.2d 219, 619 N.Y.S.2d 336, lv. denied 85 N.Y.2d 812, 631 N.Y.S.2d 289, 655 N.E.2d 402, cert. denied 516 U.S. 932, 116 S.Ct. 340, 133 L.Ed.2d 238;  Doca v. Marina Mercante Nicaraguense, 634 F.2d 30, 33, cert. denied 451 U.S. 971, 101 S.Ct. 2049, 68 L.Ed.2d 351), such evidence would have no relevance to the issue of whether Reinauer was negligent in its capacity as a vessel owner.   Since the court's instructions created a danger that the jury would improperly consider such evidence as evidence that Reinauer was negligent in its capacity as a vessel owner, a new trial is warranted.

 Furthermore, the jury should have been charged on the issue of comparative negligence since there is a valid line of reasoning and permissible inferences which could lead to a conclusion that the injured plaintiff was negligent on the basis of evidence presented at trial (see Shea v. New York City Tr. Auth., 289 A.D.2d 558, 735 N.Y.S.2d 609).   Since the charge was inadequate and misleading, a new trial is warranted (see Smith v. Midwood Realty Assocs., 289 A.D.2d 391, 392, 734 N.Y.S.2d 237).

 We further note that the court erred in allowing the plaintiffs to belatedly add a claim to recover punitive damages (see Walker v. Sheldon, 10 N.Y.2d 401, 223 N.Y.S.2d 488, 179 N.E.2d 497;  Morrell v. Gorenkoff, 278 A.D.2d 210, 717 N.Y.S.2d 907).   Punitive damages are not available in an action brought pursuant to the LHWCA (see Miller v. American President Lines, Ltd., 989 F.2d 1450, 1457, cert. denied 510 U.S. 915, 114 S.Ct. 304, 126 L.Ed.2d 252;  see also Frazer v. City of New York, 240 A.D.2d 307, 308, 659 N.Y.S.2d 23;  Public Adm'r of County of N.Y. v. Frota Oceanica Brasileira, 222 A.D.2d 332, 333, 635 N.Y.S.2d 606).

Reinauer's remaining contentions are without merit.