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Lee v. Regal Cruises

MILLICENT LEE, et ano., Plaintiff, against REGAL CRUISES, LTD., et
ano., Defendants-Third Party Plaintiffs, -against- MILAN KUTANOVSKI, Third
Party Defendant.


916 F. Supp. 300 (S.D.N.Y. 02/20/1996)


94 Civ. 7687 (LAK)

916 F. Supp. 300, 1996.SNY.0000107

February 20, 1996

MILLICENT LEE, et ano., Plaintiff, against REGAL CRUISES, LTD., et
ano., Defendants-Third Party Plaintiffs, -against- MILAN KUTANOVSKI, Third
Party Defendant.

Appearances: , Robert A. Bloom, Attorney for Plaintiffs. , Peter
A. Junge, Carol N. Lambos, LAMBOS & JUNGE, Attorneys for Defendants-Third
Party Plaintiffs. , William D. Gallagher, MCMAHON, MARTINE & GALLAGHER,
Attorneys for Third Party Defendant.

Lewis A. Kaplan, United States District Judge

The opinion of the court was delivered by: KAPLAN


LEWIS A. KAPLAN, District Judge.

Plaintiff Millicent Lee slipped on a staircase aboard the REGAL
EMPRESS on the night of October 8, 1993 and fractured her left patella.
She was evacuated from the ship and, while undergoing a manual
manipulation of her left knee under general anesthesia, performed by a
physician unconnected with the ship and its owners, sustained a fracture
of the left distal femur. She and her husband have brought this action
against the ship's owners. The owners have impleaded the treating
physician, against whom plaintiffs subsequently made a direct claim. The
owners now move for summary judgment dismissing plaintiffs' complaint
against them. Plaintiffs in turn cross-move to amend the complaint.


On the night in question, plaintiff, her husband, and another
couple, the Paynes, spent a presumably pleasant evening, dining and
watching the entertainment provided on the so-called Cruise to Nowhere
aboard the REGAL EMPRESS. They and a third couple had consumed a bottle of         
champagne with dinner. The Lees and the Paynes proceeded in due course to
a jazz concert in the Mermaid Lounge where Mrs. Lee took a glass of white
wine. They then left the Mermaid Lounge and descended an interior
staircase to the Promenade Deck. Mrs. Lee held the glass of wine in her
right hand. When she reached the last or the penultimate step, she twisted
her right ankle and fell on her left knee, breaking her patella.

Plaintiffs brought this action on or about September 21, 1994 in
the New York Supreme Court. *fn1" The complaint alleges that the falls was
caused by "a defective condition that existed on [the] stairway" and that
the defendants had been negligent "in the ownership, operation,
maintenance and control of the aforementioned stairway and steps..." (Cpt
PP 18-19)

The Court, with the agreement of counsel, entered a scheduling
order which required that any amendment of the pleadings by made by
February 15, 1995 and, as amended, that discovery be concluded by December
22, 1995.

Mrs. Lee was deposed on March 2, 1995. She testified that the
carpeting on the stairs was "older," that the steps had metal stripping on
their edges, that it had been raining "quite heavily," and that the ship
was pitching. (M. Lee Dep. 43-45, 62) As she descended the steps, she held
the bannister "a little bit for balance, because the ship... was rough." (
Id. 66) She then stepped on something that caused her ankle to twist,
discovering immediately that the substance in question was "little ice
cubes in the melting stages." ( Id. 66-67; see also id. 68-69) Mrs. Lee
acknowledged that she had no idea how long the ice cubes had been on the
steps or how they had gotten there. ( Id. 71, 107) This testimony was
consistent with a November 16, 1993 written statement that Mrs. Lee gave
to the owners in which she also attributed the accident exclusively to
water and ice cubes on the steps. (Lambos Aff. Ex. D)

Defendants filed this motion for summary judgment on December 15,
1995. The thrust of the motion is that there was no negligence because
there is no evidence as to (1) how the ice cubes came to be on the steps
or how long they had been there, and (2) the existence of any defect in
the construction or arrangement of the steps. This evidently caused the
plaintiffs to rethink their case.

Acknowledging "that an ice cube can melt rather quickly and that
the plaintiffs could not truthfully say how long the particular ice cube
on which [Mrs. Lee] slipped was present" (Pl. Mem. 7), plaintiffs
cross-moved to amend the complaint to assert the following theories of

The sea and weather conditions were so unstable that the
owners had a duty to issue special warnings and to supervise passengers as
they moved about the ship.

The construction of the bannister was defective in that it was
affixed to the wall with brackets that made it difficult or impossible to
obtain a firm grip.

The allegedly worn condition of the carpet and the metal
stripping on the lips of the steps contributed to the accident.

The rainy weather created a duty to inspect the stairs for
wetness and slickness.

The owners breached the alleged duty to inspect the stairwell
for rain, spilled drinks and ice cubes.

Defendants, perhaps understandably, oppose leave to amend. They
suggest, implicitly, that plaintiffs newly proposed theories are
fictional. They point out that the ship's log described sea and wind
conditions as good and the weather as "light rain." (Lambos Aff. Ex. A)
They have provided photographs, the authenticity and accuracy of which are
undisputed, that show that one easily could get a firm handgrip on the
bannister, fully encircling the rail with one's hand. (Id. P 11 & Ex. B)
They have provided also a plan of the ship, the accuracy of which also is
undisputed, that demonstrates that the stairway in question was an
internal stairway with no access to the outside decks (id. P 12 & Ex. C),
thus undercutting plaintiffs' suggestion that the rain enhanced the danger
of wetness on the stairwell. They assert, moreover, that plaintiffs'
application for leave to amend comes too late in the day, as the discovery
period ended even before plaintiffs' made their cross-motion.


The Motion for Summary Judgment

Inasmuch as plaintiffs concededly were passengers under duly
issued passenger tickets, which are maritime contracts, this action is
governed by the general maritime law of the United States, at least to the
extent that the federal courts have established applicable federal
admiralty rules. E.g., Wilburn Boat Co. v. Fireman's Fund Insurance Co.,
348 U.S. 310, 313-14, 99 L. Ed. 337, 75 S. Ct. 368 (1955): Vavoules v.
Kloster, 822 F. Supp. 979, 981 (E.D.N.Y. 1993). This is so even though the
action was commenced in state court under the "saving to suitors clause,"
28 U.S.C. ? 1333(1). Celeste v. Prudential-Grace Lines, Inc., 35 N.Y.2d
60, 358 N.Y.S.2d 729, 315 N.E.2d 782 (1974).

Passengers injured aboard a vessel have a cause of action in
admiralty if the injury is caused by negligence imputed to the owner or
operator of the vessel. Monteleone v. Bahama Cruise, 838 F.2d 63 (2d Cir.
1988); Rainey v. Paquet Cruises, Inc., 709 F.2d 169 (2d Cir. 1983). The
standard of conduct is "one of reasonable care under the circumstances."
Monteleone, 838 F.2d at 64-65 (citing Rainey, 709 F.2d at 172); accord,
Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 631-32, 3 L.
Ed. 2d 550, 79 S. Ct. 406 (1959). It must reflect "the extent to which the
circumstances surrounding maritime travel are different from those
encountered in daily life and involve more danger to the passenger..."
Rainey, 709 F.2d at 172. At the same time, "there is no sound reason to
require that a carrier exercise a high degree of care for those trifling
dangers which a passenger meets 'in the same way and to the same extent as
he meets them daily in his home or in his office or on the street, and
from which he easily and completely habitually protects himself.'" Id. at
171 (quoting Livingston v. Atlantic Coast Line R. Co., 28 F.2d 563, 566
(4th Cir. 1928)).

Against this background, the principles governing "slip and fall"
cases arising at sea in circumstances that involve no special risks
associated with the maritime location of the accident are similar to those
that govern in cases arising ashore. The owner is liable for accidents
caused by defects of which the owner has actual or constructive knowledge.
Monteleone, 838 F.2d at 65-66. *fn2"

Putting aside, for the moment, plaintiffs' cross-motion for leave
to amend, defendants would be entitled to summary judgment dismissing this
complaint. Mrs. Lee here attributed the accident -- both in her November
1993 statement to the owner and in her deposition -- solely to her having
twisted her ankle when she stepped on melting ice cubes found on the
stairway. There is no evidence whatsoever that the owners were responsible
for the presence of the ice cubes. There is no evidence that the owners or
their agents knew that the ice cubes were there. And there is no evidence
as to how long the ice cubes had been on the steps, except of course the
common sense proposition -- conceded by plaintiffs -- that ice cubes
quickly melt, which suggests that they had not been there long. The Court
therefore turns to the motion for leave to amend. *fn3"

The Cross-Motion to Amend

Rule 15(a) provides that leave to amend shall be freely given.
Nonetheless, the Court may deny leave if the amendment (1) has been
delayed unduly, (2) is sought for dilatory purposes or is made in bad
faith, (3) the opposing party would be prejudiced, or (4) would be futile.
Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962).
Here there is no issue of dilatory purpose and, in view of the lack of any
factual showing, of prejudice to the defendants. In consequence, the focus
must be on the extent of and reasons for the delay, whether the
application is made in bad faith, and whether the amendment would be
futile. The request is denied on the alternative grounds that the request
is an unduly delayed effort to bolster the case in a questionable manner
and in any event would be futile.

The proposed amendment would add as alleged causative factors in
the accident the allegedly rough sea conditions, the claim that the
railing did not permit a proper grip, the allegedly worn condition of the
carpeting, the metal stripping on the stair edges, and the rainy weather.
By the very nature of these circumstances, Mrs. Lee must have known both
of their existence and of their alleged contribution to the accident from
the moment she fell. Indeed, the existence of each save the bannister rail
point was mentioned in her deposition. Significantly, however, Mrs. Lee
did not then suggest that any played a causative role. This has two
implications for plaintiffs' motion for leave to amend.

First, plaintiffs cannot explain the untimeliness of the motion
-- which comes ten months after the consensual court-ordered cutoff date
of February 15, 1995 and more than two years after the accident - on the
basis of lack of knowledge of the facts. Indeed, plaintiffs have offered
no explanation of why the plaintiffs did not rely on these alleged factors
earlier. See, e.g., Zahra v. Town of Southold 48 F.3d 674, 686 (2d Cir.
1995) (delay of two and one half years after commencement of action
justified denial of leave to amend); John Hancock Mutual Life Insurance
Co. v. Amerford International Corp., 22 F.3d 458, 462 (2d Cir. 1994)
(delay of four months after deadline for amendments justified denial).

Second, the circumstances suggest that the request for leave to
amend reflects an evolutionary development in plaintiffs' case that falls
under the heading of bad faith. As Mrs. Lee's November 1993 statement and
her March 1995 deposition show, she then entertained no doubt as to the
cause of the accident. She stepped on ice cubes which caused her to twist
her ankle and fall on her left knee. Only when defendants moved for
summary judgment -- and demonstrated that plaintiffs were in serious
danger of losing the case because plaintiffs could not link the ice cubes
to a breach of duty by the owners or their agents -- did plaintiffs first
suggest that the weather, the handrail the carpeting or the metal
stripping played a role. This circumstance indicates that the failure to
advance these other factors earlier was the product of bad faith -- the
factors were not regarded as causative, did not really exist, or some
combination of both. See Vine v. Beneficial Finance Co., 374 F.2d 627,
636-37 (2d Cir.), cert. denied, 389 U.S. 970, 19 L. Ed. 2d 460, 88 S. Ct.
463 (1967) (affirming denial of leave to amend where facts known to
plaintiff from outset and plaintiff awaiting outcome of motion to dismiss
before seeking leave). Moreover, certain of these now allegedly causative
factors are subject to most serious question. Plaintiffs, for example,
have not responded to defendants' proof that the stairwell was an interior
one that was not subject to the elements or to the photographs
demonstrating the ease with which one could wrap one's hand around all
three hundred sixty degrees of the handrail.

These considerations alone would lead the Court to deny the
cross-motion for leave to amend. As noted, however, the Court concludes
also that the proposed amendment would be futile, as the factors upon
which plaintiffs now would rely would be insufficient to salvage their
case even if leave to amend were granted.

First, Mrs. Lee now claims that "the ship was rolling and
pitching to a degree that endangered passengers." (Lee Aff., Dec. 29,
1995, PP 2.A., 2.E.) While Mrs. Lee said at her deposition that the ship
was pitching and the seas "rough," she acknowledged also that when she
descended the stairs, she was "holding on a little bit, that she did not
really grab hold but for balance..." (Lee Dep. 66), and that she was
carrying a glass of wine in her right hand (id. 59-60) which she did not
even drop when she fell (id. 70). Her testimony about the wine glass and
the handrail is not entirely consistent with the account of a pitching
vessel and, in fact, tends to support the description of the sea contained
in the ship's log. Even assuming the accuracy of Mrs. Lee's contention as
to the sea condition, however, it contributes nothing to the sufficiency
of plaintiffs' case. The thrust of plaintiffs' position seems to be that
the ship owed its passengers a duty, borne of the allegedly adverse
weather conditions, to issue a special warning to passengers and to
supervise their movements about the ship. But the duty is one of
reasonable care in all the circumstances. It is undisputed that the
stairway in question had several warning signs at key locations advising
passengers to "Watch Your Step." No reasonable trier of fact could find
that the warning signs were inadequate to discharge the owners' duty given
the fact that even landlubbers are bound to recognize that a stairway on a
pitching ship presents obvious dangers. At least equally important, the
plaintiffs' have failed to provide any evidence whatever of a causal link
between the alleged instability of the ship and the injury. The fact
remains that Mrs. Lee has attributed her fall to her having stepped on ice
cubes. She never has contended that the pitching of the ship caused her,
in whole or in part, to lose her balance. *fn4"

The allegedly worn condition of the carpeting and the metal
stripping on the step edges stand the plaintiffs in no better stead. There
is no suggestion that the carpeting was torn or ragged, that Mrs. Lee
caught her foot on the carpeting, or that the carpeting or metal stripping
otherwise contributed to the fall.

Finally, the reference to the rainy conditions and the bannister
railing, in view of the evidence supplied by the owners, would be
insufficient to raise a genuine issue for trial for reasons already


For the foregoing reasons, defendants' motion for summary
judgment dismissing the complaint is granted. Plaintiffs' cross-motion for
leave to amend the complaint is denied on the grounds that it was unduly
delayed, that it is not brought in good faith, and that the proposed
amendment would be futile. Plaintiffs' direct claim against the third
party defendant, for which there is no independent basis of federal
jurisdiction, *fn5" is dismissed for lack of subject matter jurisdiction.


Dated: February 21, 1996

Lewis A. Kaplan

United States District Judge

Opinion Footnotes

fn1 The action was removed. This Court denied plaintiffs' motion
to remand. Lee v. Regal Cruises, Ltd., 1995 U.S. Dist. LEXIS 38, 1995
A.M.C. 782, 1995 WL 4297 (S.D.N.Y. 1995).

fn2 In a maritime case, of course, the owner may be liable also
on the basis of unseaworthiness or for negligently creating a dangerous
condition that causes an accident. See, e.g., Oxley v. City of New York.
923 F.2d 22, 24 (2d Cir. 1991) (unseaworthiness); Monteleone, 838 F.2d at
65 (negligence).

fn3 The third party defendant also opposes defendants' motion
for summary judgment, claiming that the ship's doctor was negligent in
treating Mrs. Lee at the time of the accident, that his negligence
contributed to the overall poor result, and that the owners are
responsible for that negligence. The ship's doctor, however, is regarded
as an independent contractor. The ship's owner is not vicariously liable
for his alleged negligence. Cummiskey v. Chandris, S.A., 895 F.2d 107, 108
(2d Cir. 1990); Malmed v. Cunard Line Limited, 1995 U.S. Dist. LEXIS
12256, 1995 WL 505915 (S.D.N.Y. 1995); see also Johnson v. Commodore
Cruise Lines, Ltd., 897 F. Supp. 740, 745 (S.D.N.Y. 1995).

fn4 The contention, rather, is that the instability of the ship
gave rise to a duty to inspect the stairway more frequently and to
supervise the passengers' movements. With due respect, neither suffices to
defeat defendants' motion. As far as inspection is concerned, there is no
basis in this record for concluding that inspections even every five
minutes would have given the owners or their agents knowledge of the ice
on which Mrs. Lee slipped. Nor is it even remotely clear why reasonable
care would have required supervision of passengers as plaintiffs suggest.

fn5 A plaintiff may assert a direct claim against a third party
defendant only if there is an independent basis of federal jurisdiction.
Owen Equip. Co. v. Kroger, 437 U.S. 365, 57 L. Ed. 2d 274, 98 S. Ct. 2396
(1978). As the plaintiffs and the third party defendants all are citizens
of New York, and as there is no other independent basis of federal
jurisdiction over that claim, there was no subject matter jurisdiction
over the direct claim to begin with. Given that the basis of federal
jurisdiction with respect to plaintiffs' claims against the defendants is
diversity of citizenship, 28 U.S.C. ? 1367(b) prohibits the exercise of
supplemental jurisdiction over plaintiffs' direct claim against the third
party defendant. Even if there were supplemental jurisdiction, the Court
would decline to exercise it in view of the dismissal of plaintiffs'
action against the defendants.

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Cruise Ship Injury Case
This case was brought by a passenger who
was injured aboard a cruise ship when she
slipped on ice while descending a
staircase. The injuries sustained by the
passenger included a fracture of the left