18-3126
Brown v. Reinauer Tran sportation Cos., L.P.

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 ELECTRON IC 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 Unite d States Court of Appeals for th e Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
4 th day of October, two thousand nineteen.

Present: GUIDO CALABRESI, ROSEMARY S. POOLER, MICHAEL H. PARK, Circuit Judges

.

_____________________________________________________

LUCIUS BROWN,

Plaintiff-Counter-D efendant-Appellant

,

v. 18-3126-cv

REINAUER TRANSPORTATIO N COMPANIES, L.P.,
REINAUER TRANSPORTATIO N COMPANIES, LLC, REINAUER MARITIME COMPANY LLC, REINAUER MANAGEMENT COMPANY, INC.,

Defendants-Counter-Claimants-Appellees

.

_____________________________________________________

Appearing for Appellant: Paul T. Hofma nn, Hofmann & Schweitzer, New York, N.Y.

Appearing for Appellee: Gino A. Zonghetti, Kaufman Dolowich Voluck, LLP, Hackensack,
N.J.

Appeal from the United States District Court fo r the Eastern District of New York (Hall, J. ).2 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said Dist rict Court be and it hereby is AFFIRMED

.

Lucius Brown appeals from the Septem ber 26, 2018 judgment of the United States
District Court for the Eastern District of New York (Hall, J. ) granting summary judgment to the defendants--Reinauer Transportation Companies, L.P., Reinauer Transportation Companies, LLC, Reinauer Maritime Company LLC, and Reinau er Management Compa ny, Inc. (collectively “Reinauer”)--on his claims for da mages, maintenance, and cure unde r the Jones Act, 46 U.S.C. § 30104, and unseaworthiness under general maritime law. We assume the partie s’ familiarity with the underlying facts, procedural history, a nd specification of issues for review.

This Court reviews an award of summary judgment de novo, with all ambiguities and
inferences drawn in favor of the nonmovant. See Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 247-48 (1986).

On appeal, Brown primarily contests the di strict court’s conclusi on that Brown was not able to explain the cause of his fall, and was unable to present a nything other than speculation as to the existence of a dangerous condition. The di strict court found that at his deposition, Brown “merely speculated the cause of his fall.” Specia l App’x at 4. It found that even under the relaxed evidentiary standard afforded by the Jones Act, Brown failed to sufficiently state a claim. The
district court found that Brown’s affidavit was insu fficient to establish circ umstantial evidence as to the cause of his fall, because his affidavit “dir ectly contradict[ed] his prior testimony that he did not ‘see,’ ‘know,’ or ‘feel’ what caused him to slip, and that ‘to this day’ he is ‘not sure’ of what caused him to slip.” Special App’x at 5. Th e district court found that because the affidavit contradicted his prior te stimony, it was not admissible. “Against this backdrop,” the district court concluded, “the only admissible evidence offered by [Brown] concerning the cause of his fall is his deposition testimony.” Special App’x at 6. Gi ven that his deposition testimony established that Brown had no personal knowledge as to the cau se of his fall, “there is no evidence that Defendants’ conduct played any part, even the slightest , in producing [Plain tiff’s] injury.” Special App’x at 6-7 (internal quota tion marks and cita tion omitted).

Brown brought claims alleging negligence pur suant to the Jones Act, 46 U.S.C. § 30104, and unseaworthiness under general maritime law. The Jones Act provides that a “seaman injured in the course of employment . . . may elect to bring a civil action at law, with the right of trial by jury, against the employer.” 46 U.S.C. § 30104. Th e Jones Act places a “distinct duty on the [vessel’s] owner to provide a reasonably safe workplace.” Oxley v. City of New York , 923 F.2d 22, 25 (2d Cir. 1991). “The threshold requirement for establishment of a prima facie case in Jones Act . . . cases is a liberal concept commensu rate with the broad remedial purposes of [the Act].” Diebold v. Moore McCormack Bulk Transp. Lines, Inc ., 805 F.2d 55, 57 (2d Cir. 1986). To prove negligence under the Jones Act, a pl aintiff must establish that there was (1) a dangerous condition on the ship, (2) of which de fendant had notice and should have reasonably anticipated could cause injur y, that (3) proximately caused the plaintiff’s injuries. Id . at 58. Even with this lesser burden, “[i]t is well established that summary j udgment is warranted where there is an absence of evidence that could justify w ith reason the conclusion th at employer negligence played any part, even the slightest , in producing the injury.” Wills v. Amerada Hess Corp ., 379 F.3d 32, 50 (2d Cir. 2004) (internal quot ation marks and citation omitted).3 Brown also sued on the ground that the ba rge was unseaworthy. Under general maritime law, unseaworthiness is a claim “based on the vessel owner’s duty to ensure the vessel is reasonably fit to be at sea.” Lewis v. Lewis & Clark Marine, Inc ., 531 U.S. 438, 441 (2001). Strict liability attaches to a shipowner for in juries caused by the vesse l’s unseaworthy condition. Mitchell v. Trawler Racer, Inc ., 362 U.S. 539, 549 (1960). While a shipowner is not “obligated to furnish an accident-free ship,” the ship owner does have a dut y to “to furnish a vessel and appurtenances reasonably f it for their intended use.” Id . at 550; see also Oxley , 923 F.2d at 24. “Liability for unseaworthiness does not depe nd either on negligence, or on notice.” Martinez v.
United States , 705 F.2d 658, 660 (2d Cir. 1983) (citations omitted). To prevail on a claim of unseaworthiness, a plaintiff must establish that a vessel was insufficiently or defectively equipped, and that his or her in juries resulted from the unseawor thy condition of the vessel. Oxley , 923 F.2d at 26.

It is well settled that “a party may not create an issue of fact by s ubmitting an affidavit in opposition to a summary judgment motion that, by o mission or addition, contradicts the affiant’s previous deposition testimony.” Hayes v. N.Y.C. Dep’t of Corr. , 84 F.3d 614, 619 (2d Cir. 1996). “If a party who has been examined at length on de position could raise an is sue of fact simply by submitting an affidavit contradi cting his own prior testimony, th is would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” Id . (internal quotation marks and citation omitted). “Thus, factual issues created solely by an affidavit crafted to oppose a summary judgmen t motion are not genuine issues for trial.” Id . (internal quotation marks and citation omitted). There are two exceptions to this rule: when “an issue was not fully explored in the deposition, or the de ponents’ responses were ambiguous.” Giliani v. GNOC Corp ., 04–CV–2935 (ILG), 2006 WL 1120602, at *3 (E.D.N.Y. Apr. 26, 2006) (citing Palazzo
v. Corio , 232 F.3d 38, 43 (2d Cir. 2000)). Further, “where a party’s conflicting affidavit statements are corroborated by othe r evidence, the affidavit may be admissible, since the concern
that the affidavit is a ‘sham’ is alleviated.” Id

.

The district court correctly concluded that Brown’s affidav it contradicted his deposition testimony that he was unaw are of the cause of his fall. Brown’s affidavit th at he “believe[s] that the deck was merely wet where [h is] feet slipped, not ice covered, although it appears there was some ice on the deck near where [he] fell.” App’x at 549 ¶ 11. Brown also averred that:

Where I slipped it was very slippe ry, and not like a well-painted deck with a proper non-skid co ating. Possibly, there may have been some refrozen snow melt (a lso known as clear “black ice”) where my one foot slipped, but I don ’t believe so. In any event, my other foot also slipped next after th e first foot slipped, and that foot I believe was on the wet painted d eck with no ice or snow covering it. I slipped because the deck pain t under that foot also did not provide me with suffic ient friction to keep that foot from also slipping.

App’x at 557 ¶ 62. This is in direct conflict with Brown’s deposition testimony, where he offered no theory as to why he slipped. His testimony was given during extensiv e questioning regarding4 the snow storm, the snow clearing and the c ondition of the deck. Brow n testified during his deposition that he was in the area where he slipped for roughly an hour and he did not slip at all, and he did not see any ice that needed to be salted.

We have considered the remainder of Brow n’s arguments and find them to be without merit. Accordingly, the order of the district c ourt hereby is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk