Susana v. NY Waterway Tours, LLC

Background

Marianela Susana sued NY Waterway, Port Imperial Ferry Corporation, and BillyBey Ferry Company LLC for negligence after she tripped and fell while disembarking the M/V BROOKLYN near Wall Street on September 20, 2016. She alleged that a dangerous condition on the ferry caused her fall. After discovery ended, the defendants moved for summary judgment, which asks whether the evidence requires a trial, and also sought sanctions for costs connected to cancelled or missed independent medical examinations.

The parties disputed what caused the fall. Susana’s counsel argued that she tripped over open black rubber brackets attached to an air-conditioning system. During her deposition, however, Susana ultimately testified that she believed she tripped over the metal threshold, or “coaming,” beneath a doorway between the ferry’s inside and outside decks. The ferry captain’s accident report and an emergency medical report also identified the doorway threshold or a piece of metal at the bottom of the door. Susana’s daughter did not see the fall, so the court declined to rely on her statement about its cause.

Summary-judgment ruling

The court determined that the evidence permitted only one reasonable conclusion: Susana tripped over the doorway threshold, not the air-conditioning brackets. Under New York negligence law, Susana had to provide evidence of a dangerous or defective condition and show that the defendants caused or had notice of it.

The court concluded that Susana offered no evidence showing that the threshold was dangerous or defective apart from the fact that she fell. The threshold was marked with yellow photoluminescent tape, and the court found that it was open and obvious. The defendants’ expert also concluded that the threshold complied with applicable United States Coast Guard regulations, was consistent with thresholds on similar vessels, and was safe for its intended use. Because Susana did not provide evidence from which a reasonable jury could find a dangerous or defective condition, the court granted the defendants’ motion for summary judgment.

The court also held that federal maritime law did not govern the negligence claim because the incident did not have a sufficient potential effect on maritime commerce. It therefore applied New York law through the court’s diversity jurisdiction.

Sanctions ruling

The defendants sought $2,036.36 for two failed medical examinations, including doctors’ fees, a deposit, medical-record shipping costs, and a translator’s fee. The court denied sanctions under Federal Rule of Civil Procedure 37 because that rule required a violation of a clearly stated court order requiring specified discovery. The court found that the relevant scheduling and discovery-extension orders did not compel Susana to attend an examination. Although one order warned that failures could lead to sanctions, Susana appeared for the examination scheduled under that order, and the examination was stopped because the examining doctor suspected she might have a deep-vein thrombosis.

The court then considered its inherent power to impose sanctions for bad-faith conduct. It declined to award costs related to the first examination because the evidence presented conflicting accounts about why that examination broke down, and any bad faith shown by the defendants’ account primarily involved Susana’s daughter. The court did find that Susana deliberately failed to attend the second examination without bringing her concerns about the doctor to defense counsel or the court. It therefore granted the sanctions motion in part and awarded $660: a $300 no-show fee and a $360 translator fee. The court denied the request for the remaining costs, denied the daughter’s contempt motion without prejudice as moot, and directed the clerk to close the case.