13-1074-cv
Hayes v. Cnty. of Nassau


                            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
ASUMMARY 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 7th day of February, two thousand fourteen.

PRESENT: ROSEMARY S. POOLER,
                 REENA RAGGI,
                                 Circuit Judges,
                 LORNA G. SCHOFIELD,
                                 District Judge.*
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ROBERT A. HAYES,
                                 Plaintiff-Appellant,

                           v.                                            No. 13-1074-cv

COUNTY OF NASSAU,
                                 Defendant-Third-Party-
                                 Plaintiff-Counter-Defendant-
                                 Appellee,

TOWN OF OYSTER BAY,
                                 Defendant-Third-Party-
                                 Defendant-Counter-Claimant-
                                 Appellee.
----------------------------------------------------------------------

*
 The Honorable Lorna G. Schofield, of the United States District Court for the Southern
District of New York, sitting by designation.
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APPEARING FOR APPELLANT:                  JAMES M. MALONEY (Jacob Shisha, Esq.,
                                          Tabak, Mellusi & Shisha, on the brief), Port
                                          Washington, New York.

APPEARING FOR APPELLEES:                  DAVID A. TAUSTER, Deputy County
                                          Attorney, for Carnell Foskey, County Attorney
                                          of Nassau County, Mineola, New York, for
                                          Appellee County of Nassau.

                                          PETER F. TAMIGI, ESQ., Burns, Russo,
                                          Tamigi & Reardon, LLP, Garden City, New
                                          York, for Appellee Town of Oyster Bay.

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

of New York (William F. Kuntz, II, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on April 2, 2013, is AFFIRMED in part and

VACATED and REMANDED in part.

       Plaintiff Robert A. Hayes appeals from the district court’s sua sponte grant of

summary judgment dismissing with prejudice his unseaworthiness claim brought under

federal admiralty jurisdiction and his negligence claim brought under the Jones Act, 46

U.S.C. § 30104.     Hayes argues that the district court, without providing him with

sufficient notice and an opportunity to be heard, erroneously determined that (1) there is no

federal admiralty jurisdiction because his injuries did not occur over navigable waters, and

(2) the County of Nassau (“County”) was not liable under the Jones Act because Hayes fell

on property owned and operated by the Town of Oyster Bay (“Town”). In reviewing the

grant of summary judgment de novo and construing the evidence in the light most

favorable to the non-moving party, see Lynch v. City of New York, 737 F.3d 150, 156 (2d
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Cir. 2013), we assume the parties’ familiarity with the facts and the record of prior

proceedings, which we reference only as necessary to explain our decision to affirm as to

the unseaworthiness claim and to vacate and remand as to the Jones Act claim.

1.     Sua Sponte Grant of Summary Judgment

       This case presents a unique procedural posture. The only motions outstanding

when the district court granted summary judgment against Hayes were cross-motions for

summary judgment between the County and the Town aimed at settling liability between

themselves. Despite claims by the Town to the contrary, none of the arguments made in

those motions could have put Hayes on notice that the district court was in a position to

decide, or was contemplating deciding, dispositive issues with respect to Hayes’s claims.

       “District courts have the power to enter summary judgment sua sponte only if the

losing party was on notice that it had to come forward with all of its evidence.” Pugh v.

Goord, 345 F.3d 121, 124 (2d Cir. 2003) (internal quotation marks and alterations

omitted). This condition was not satisfied here. In particular, Hayes had no notice with

respect to an obligation to come forward with evidence related to his claim that Marine 6

had no salt onboard. While the district court had a transcript of Sergeant Sawula’s

deposition transcript before it, that evidence is equivocal at best. Further, the district court

apparently did not have before it Hayes’s sworn declaration, which claims that in fact there

was no salt on Marine 6 and that he removed his equipment bag from the vessel in

accordance with department custom.          Thus, the district court’s sua sponte grant of

summary judgment dismissing with prejudice Hayes’s claims was in error.


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       Ordinarily, we would vacate the district court’s decision entirely so that it could first

reconsider Hayes’s legal and factual submissions. See Beason v. United Techs. Corp.,

337 F.3d 271, 274–75 (2d Cir. 2003) (noting “general rule” that Courts of Appeals does not

pass upon issues not first addressed by district court). Nevertheless, we do not do so here

because the issues are sufficiently clear and ripe for adjudication as a matter of law. See

id. (stating that general rule is prudential and discretionary). Accordingly, we here

conclude that (1) there is no federal admiralty jurisdiction over Hayes’s unseaworthiness

claim, and (2) his Jones Act claim for negligence raises questions of fact warranting trial.

2.     Federal Admiralty Jurisdiction

       Under 28 U.S.C. § 1333(1), a tort action falls under federal admiralty jurisdiction if

two tests are satisfied: (1) “the alleged tort must have occurred on or over ‘navigable

waters’”; and (2) “the activity giving rise to the incident must have had a substantial

relationship to traditional maritime activity, such that the incident had a potentially

disruptive influence on maritime commerce.” Vasquez v. GMD Shipyard Corp., 582 F.3d

293, 298 (2d Cir. 2009) (citing Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co.,

513 U.S. 527, 534 (1995)). The district court properly concluded that Hayes cannot

satisfy the first requirement because his injury occurred at the base of the gangway leading

to the floating dock, which we have held is not on or over navigable waters. See MLC

Fishing, Inc. v. Velez, 667 F.3d 140, 142 (2d Cir. 2011) (stating that “floating docks are

considered extensions of land for purposes of determining whether an incident occurred on

or over navigable waters”).


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       In urging otherwise, Hayes relies on the Extension of Admiralty Jurisdiction Act, 62

Stat. 496, which extends federal jurisdiction to injuries “caused by a vessel on navigable

waters, even though the injury or damage is done or consummated on land.” 46 U.S.C.

§ 30101(a). Hayes argues that the vessel’s failure to have salt onboard caused his injuries.

We are not persuaded. Hayes’s injuries were caused by snow and ice on the transition

plate, not by the alleged failure to cure the hazardous condition. Cf. Strika v. Neth.

Ministry of Traffic, 185 F.2d 555, 556 (2d Cir. 1950) (Hand, L., J.) (holding that federal

admiralty jurisdiction extended to suit seeking damages for longshoreman’s injuries

sustained on land caused by metal that fell from ship’s winches).

       Accordingly, the district court properly determined that federal admiralty

jurisdiction does not extend to Hayes’s unseaworthiness claim.2

3.     Jones Act Negligence

       Hayes argues that the district court erred in dismissing his Jones Act claim because

a seaman’s employer has a non-delegable duty to ensure a safe means of ingress/egress to

the ship, at least where the seaman acts within the scope of his employment. We agree.

       The Jones Act permits a seaman to sue his employer for negligence to recover for

injuries suffered “in the course of employment.” 46 U.S.C. § 30104. In interpreting the

Federal Employers Liability Act (“FELA”), the standards of which are incorporated into


2
  A dismissal for lack of subject matter jurisdiction should generally be without prejudice.
See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998); Cave v. E. Meadow
Union Free Sch. Dist., 514 F.3d 240, 250 (2d Cir. 2008). At oral argument, Hayes’s
counsel clarified that he did not pursue any error in that regard. Accordingly, we affirm
this portion of the judgment without amendment.
                                             5
the Jones Act, see id.; Hopson v. Texaco, Inc., 383 U.S. 262, 263 (1966), the Supreme

Court has stated that an employer has a “nondelegable duty to provide its employees with a

safe place to work even when they are required to go onto the premises of a third party over

which the [employer] has no control,” Shenker v. Balt. & Ohio R.R. Co., 374 U.S. 1, 7

(1963). The employer breaches this duty when it “knows or should know of a potential

hazard in the workplace, yet fails to exercise reasonable care to inform and protect its

employees.” Gallose v. Long Island R.R. Co., 878 F.2d 80, 84–85 (2d Cir. 1989); accord

Gadsen v. Port Auth. Trans-Hudson Corp., 140 F.3d 207, 209 (2d Cir. 1998).

       Here, Hayes proffered sufficient evidence from which a reasonable jury could find

that he was acting within the scope of his employment at the time of his injury and that the

County failed to remedy a known hazard. At his deposition and in his affirmation, Hayes

stated that, in accordance with department custom, he was returning to the vessel after

removing his equipment bag to make room for relieving officers when he was injured.

This is sufficient to raise a triable question of fact as to whether the injury occurred in the

course of Hayes’s employment. See Goldwater v. Metro-North Commuter R.R., 101 F.3d

296, 298 (2d Cir. 1996) (stating that jury’s role in determining scope of employment and

employer’s liability under FELA (and, therefore, Jones Act) is “significantly greater . . .

than in common law negligence actions” (alteration in original) (internal quotation marks

omitted)). Further, Sergeant Sawula testified that the County had received numerous

complaints about the steepness of the ramp and the slipperiness of the transition plate on

which Hayes fell, which could support a jury finding that the County failed to protect its


                                              6
employee by not clearing snow from the area, applying salt to the gangway, or ensuring

that there was non-stick paint on the transition plate. See Wills v. Amerada Hess Corp.,

379 F.3d 32, 50 (2d Cir. 2004) (observing it “well established” under Jones Act that

plaintiffs can survive summary judgment if any evidence “could justify with reason the

conclusion that employer negligence played any part, even the slightest, in producing the

injury” (emphasis in original) (internal quotation marks omitted)).

       Thus, we vacate the district court’s award of summary judgment on Hayes’s Jones

Act claim and remand for trial.

3.     Supplemental Jurisdiction Over State Claims

       Having concluded that the dismissal of the Jones Act claim was in error, we also

vacate the portion of the judgment declining to exercise supplemental jurisdiction over

Hayes’s state law claims. See Loeffler v. Staten Isl. Univ. Hosp., 582 F.3d 268, 279 (2d

Cir. 2009) (vacating order declining to exercise supplemental jurisdiction over common

law negligence claims because court vacated dismissal of federal claims); cf. 28 U.S.C.

§ 1367(c)(3) (stating that district court may decline to exercise supplemental jurisdiction if

it “dismissed all claims over which it has original jurisdiction”).

       We have considered Hayes’s remaining arguments and conclude that they are

without merit. We therefore AFFIRM in part and VACATE and REMAND in part the

judgment of the district court.

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




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