16-1147-cv
Martinez v. City of New York


                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 29th day of March, two thousand seventeen.

PRESENT: REENA RAGGI,
                 DENNY CHIN,
                 SUSAN L. CARNEY,
                                 Circuit Judges.
----------------------------------------------------------------------
CHARLES MARTINEZ,
                                    Plaintiff-Appellant,

                               v.                                          No. 16-1147-cv

THE CITY OF NEW YORK,
                                   Defendant-Appellee.
----------------------------------------------------------------------
APPEARING FOR APPELLANT:                          ANDREW V. BUCHSBAUM (Bernard D.
                                                  Friedman, on the brief), Friedman, James &
                                                  Buchsbaum LLP, New York, New York.

APPEARING FOR APPELLEE:                          SUSAN PAULSON, Assistant Corporation
                                                 Counsel (Claude S. Patton, Assistant
                                                 Corporation Counsel, on the brief), for Zachary
                                                 W. Carter, Corporation Counsel of the City of
                                                 New York, New York, New York.




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      Appeal from a judgment of the United States District Court for the Southern

District of New York (Robert W. Sweet, Judge).

      UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the May 12, 2016 judgment of the district court is AFFIRMED in

part, VACATED in part and REMANDED.

      Plaintiff Charles Martinez, a marine oiler injured in the course of his employment

aboard the Staten Island Ferry, appeals from an award of summary judgment to the City

of New York (the “City”) on Martinez’s claims of unseaworthiness and negligence, the

latter under the Jones Act, see 46 U.S.C. § 30104. We review an award of summary

judgment de novo, resolving all ambiguities and drawing all inferences in favor of the

non-movant, and we will affirm only if the record reveals no genuine dispute of material

fact. See Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48

(1986); Matthews v. City of New York, 779 F.3d 167, 171–72 (2d Cir. 2015). We may,

however, affirm on any ground supported by the record, whether or not relied upon by

the district court. See Mitchell v. City of New York, 841 F.3d 72, 77 (2d Cir. 2016).

      To prove negligence under the Jones Act, a plaintiff must establish that there was

(1) a dangerous condition on the ship, (2) of which defendant had notice, that (3)

proximately caused the plaintiff’s injuries. See Diebold v. Moore McCormack Bulk

Transp. Lines, Inc., 805 F.2d 55, 58 (2d Cir. 1986). To prove the distinct claim of

unseaworthiness under general maritime law, a plaintiff must show that a vessel is

“insufficiently or defectively equipped.” Oxley v. City of New York, 923 F.2d 22, 25 (2d

Cir. 1991) (internal quotation marks omitted).      Seaworthiness does not demand an

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accident-free ship, only one reasonably fit to be at sea. See Lewis v. Lewis & Clark

Marine, Inc., 531 U.S. 438, 441 (2001); Mitchell v. Trawler Racer, Inc., 362 U.S. 539,

550 (1960).    But where a condition renders a ship unseaworthy, liability attaches

without regard to negligence or notice. See Martinez v. United States, 705 F.2d 658,

660 (2d Cir. 1983).

       In applying these standards here, we assume the parties’ familiarity with the

underlying facts and record of prior proceedings, which we reference only as necessary to

explain our decision to affirm in part and to vacate in part.

1.     Steering Compartment Floor

       Martinez argues that he fell when climbing a ladder from the below-deck steering

compartment to the main deck because (1) the steering compartment floor was covered

with oil and grease, which got on the soles of his shoes, causing him to slip; and (2) the

ladder between the steering compartment and the main deck lacked a handhold above the

top rung. In support, Martinez relied on his own sworn affidavit stating that a “thick,

shiny coating of black oil and grease covered the entire steering compartment deck” on

the day of his accident, as well as three photographs depicting containers in the

compartment that collected grease and oil. J.A. 148–49. Earlier, at his deposition,

Martinez had also testified that there was “oil on the deck” and “all over the place” on the

date of his accident. J.A. 44. Moreover, he described the condition as chronic despite

his complaint to City port engineers.

       The district court concluded that the deposition testimony and affidavit were

insufficient to raise a triable issue of fact as to an unseaworthy condition in the absence of

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“independent[] corroborat[ion],” which the court found in neither the proffered

photographs nor Martinez’s expert report. J.A. 261. Our precedent is to the contrary.

See, e.g., Danzer v. Norden Sys., Inc., 151 F.3d 50, 57 (2d Cir. 1998) (rejecting argument

that “self-serving affidavits” cannot defeat summary judgment).         To be sure, other

record evidence casts doubt on Martinez’s claim that the oil and grease rose to the level

of unseaworthiness. See Rice v. Atl. Gulf & Pac. Co., 484 F.2d 1318, 1321 (2d Cir.

1973) (“A seaman is not entitled to a deck or ladder that is free of all oil or grease.”).

For example, Martinez, whose duties included emptying oil and grease containers and

cleaning the deck with available grease-cutting solvents, performed those duties

immediately before climbing the ladder without slipping. But decisions about whether

to credit and how to weigh conflicting evidence are generally left to the jury. See Fischl

v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997). Our task here is not to assess the strength

of Martinez’s unseaworthiness claim regarding the compartment floor or the likelihood of

his prevailing. We conclude only that when we assume, as we must, that a jury fully

credits Martinez’s affidavit and testimony and draws all inferences favorable to him, it

cannot be said as a matter of law that the jury could not find the condition of the steering

compartment floor to have rendered it “no longer reasonably fit for its intended use by

the crew.” Rice v. Atl. Gulf & Pac. Co., 484 F.2d at 1321.

       Martinez’s own responsibility to clear the steering compartment of accumulated

oil and grease warrants no different conclusion. See Usner v. Luckenbach Overseas

Corp., 400 U.S. 494, 498 (1971) (accepting as “settled” that “shipowner is liable though

the unseaworthiness be transitory”); Schell v. Chesapeake & Ohio Ry. Co., 395 F.2d 676,

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678 (4th Cir. 1968) (“That plaintiff was sent for the purpose of cleaning up grease or oil

from the platform to which the ladder reached does not alter plaintiff’s right to recover.”).

As the district court recognized, the record does not expressly identify what “untaken

measures” the City might have employed to ensure the seaworthiness of the compartment

floor, J.A. 262, but on summary judgment review, we must assume the jury will resolve

this question favorably to Martinez, particularly in light of his affidavit statement that the

containers collecting oil and grease regularly overflowed.

       The same conclusion obtains as to Martinez’s related Jones Act claim. The City

acknowledges that his affidavit provides evidence that he notified City port engineers

about accumulating oil and grease in the steering compartment. It nevertheless asserts

that Martinez cannot establish its “fail[ure] to use due care” in light of undisputed

evidence of City measures to guard against accidents, notably, installing containers and

pads to collect oil and grease, requiring employees to keep the compartment floor clean,

and providing them with cleaning supplies.             Appellee’s Br. 28–29.         Whether

Martinez’s notice and the City’s actions were sufficient, however, are questions that

cannot be resolved as a matter of law on the instant record. See Diebold v. Moore

McCormack Bulk Transp. Lines, Inc., 805 F.2d at 58 (observing that “low and liberal”

Jones Act prima facie standard “works in favor of submission of issues to the jury”).

       Accordingly, we vacate the award of summary judgment on Martinez’s

seaworthiness and Jones Act claims pertaining to the condition of the steering

compartment floor.



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2.     Ladder Condition

      To support his ladder-condition claims, Martinez relies on his deposition

testimony and affidavit, as well as an expert report. That report acknowledges that the

ferry boat at issue complied with applicable industry and regulatory requirements at its

launch in 1965, but states that industry and U.S. Coast Guard standards have since been

revised to recommend “handrails or handgrabs above the top of the ladder within easy

reach,” J.A. 106, and that the City’s failure to bring the ferry boat here up to these

recommended standards, which now reflect “industry custom and practice,” manifests an

unseaworthy condition, id. at 107. The City, for its part, produced evidence that the

ferry consistently passed the Coast Guard’s quarterly inspections, including those

conducted in 2013, the year of Martinez’s accident. It also submitted an expert report

stating, inter alia, that the open hatch cover and four-inch-high lip (or “coaming”)

surrounding the hatch afforded handholds at the top of the ladder sufficient to assure

reasonable safety and seaworthiness.

      On this record, and in the absence of any evidence of ladder accidents since the

ferry boat’s 1965 launch, the district court concluded that Martinez’s unseaworthiness

claim failed as a matter of law.   We agree that a 50-year history of ladder use without

injury makes it difficult for Martinez to prove unseaworthiness.          But we cannot

conclude that the claim fails as a matter of law. Whether the coaming and hatch cover

provided adequate support for an adult of Martinez’s height and build, so as to obviate

the need for handholds, was vigorously disputed by the parties and their experts. Were

the jury to credit Martinez’s expert as to both the insufficiency of the afforded handholds

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and the industry custom to install dedicated handholds, it could find that the ladder was

not reasonably safe. See Fischl v. Armitage, 128 F.3d at 55 (observing that assessments

of credibility, choosing between “conflicting versions of the events,” and “the weighing

of evidence are matters for the jury, not for the court”); see also Harris v. Provident Life

& Acc. Ins. Co., 310 F.3d 73, 79 (2d Cir. 2002) (“Where, as here, there are conflicting

expert reports presented, courts are wary of granting summary judgment.” (alteration and

internal quotation marks omitted)).

       The City argues that, even if Martinez is allowed to pursue an unseaworthiness

claim as to the ladder, his Jones Act claim necessarily fails for lack of notice. See

Diebold v. Moore McCormack Bulk Transp. Lines, Inc., 805 F.2d at 58 (stating notice of

dangerous condition and “reasonabl[e] anticipat[ion]” of injury are necessary elements of

Jones Act claim). In fact, Martinez adduced no evidence that either he or the City

regarded the ladder’s lack of handholds as dangerous before the accident at issue, much

less that Martinez or anyone else alerted the City to such danger. Rather, the record

suggests that the City believed the ladder to be safe in light of the absence of any

documented accidents involving the ladder and the ferry’s consistent passage of quarterly

Coast Guard inspections. Because the record cannot support an inference that the City

“reasonably anticipated the plaintiff might be injured by” the lack of handholds, Martinez

cannot demonstrate that City negligence caused his injury. See id. Accordingly, we

affirm the district court’s award of summary judgment on Martinez’s Jones Act claim

pertaining to the ladder.



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3.    Conclusion

      We have considered the parties’ remaining arguments and conclude that they are

without merit.   Accordingly, the May 12, 2016 judgment of the district court is

AFFIRMED as to Martinez’s Jones Act claims regarding the ladder and otherwise

VACATED and REMANDED for further proceedings.

                               FOR THE COURT:
                               CATHERINE O’HAGAN WOLFE, Clerk of Court




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