|UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2000
(Argued: March 15, 2001 Decided:
April 01, 2002)
Docket No. 00-7872
GERARD O'HARA and LISA O'HARA,
- v -
WEEKS MARINE, INC. and COLLAZO CONTRACTORS,
Before:LEVAL and SACK, Circuit Judges,
and RAGGI, District Judge.*
Appeal from two orders of the United States
District Court for the Eastern District of New York (I. Leo Glasser, Judge)
granting the defendants' motions for summary judgment on the plaintiffs'
claims under the Jones Act and the Longshore and Harbor Workers' Compensation
Act, and denying the plaintiffs leave to amend their complaint to add state
law claims. We hold that the district court correctly dismissed the Jones
Act claims against both defendants. We conclude, however, that the plaintiffs
proffered evidence sufficient to withstand Weeks Marine, Inc.'s motion
for summary judgment on their claims under the Longshore and Harbor Workers'
Compensation Act. We further hold that this evidence may suffice to state
a claim under New York State law. We therefore vacate in part and remand
for the district court's further consideration of these issues.
Affirmed in part, vacated in part, and remanded.
PAUL C. MATTHEWS, New York, NY, for
DAVID R. HORNIG, Nicoletti Hornig
Campise & Sweeney (Julia M. Moore, of counsel), New York, NY, forDefendant-Appellee
Weeks Marine, Inc.
WILLIAM M. KIMBALL (James P. O'Connor,
of counsel), New York, NY, for Defendant-Appellee Collazo Contractors,
SACK, Circuit Judge:
The plaintiffs, Gerard O'Hara, a dockworker,
and his wife Lisa,1
appeal from a judgment of the United States District Court for the Eastern
District of New York (I. Leo Glasser, Judge) granting the defendants'
motion for summary judgment and denying the plaintiff leave to amend his
complaint to allege additional causes of action under New York State law.
O'Hara brought suit under the Jones Act, 42
App. U.S.C. § 688 (Supp. 2001), and the Longshore and Harbor Workers'
Compensation Act, 33 U.S.C. § 901 et seq. ("LHWCA"), for injuries
he sustained while employed by Defendant Collazo Contractors, Inc. ("Collazo")
to help repair piers along the waterfront in Staten Island, New York. Defendant
Weeks Marine, Inc. ("Weeks"), the general contractor on the pier-reconstruction
project, deployed two barges to assist with the reconstruction, and engaged
O'Hara's employer Collazo as a subcontractor. O'Hara alleges that he sustained
personal injuries while working aboard one of these barges.
We affirm the dismissal of O'Hara's Jones
Act claims because we agree with the district court that he does not qualify
as a "seaman" within the meaning of the Act. We hold, however, that the
evidence suffices to create a triable issue of fact with respect to O'Hara's
LHWCA claim against Weeks, and also should be factored into the district
court's analysis of whether to permit O'Hara leave to replead to add state
law claims. We therefore vacate and remand in part for the court's further
consideration of these issues.
Central to our analysis is O'Hara's allegation,
which we must credit on appeal from the grant of summary judgment, that
he had been working under the direct supervision of a Weeks employee at
the time of his injury. We conclude that if the trier of fact ultimately
credits this allegation, it could render Weeks liable for O'Hara's injury
under the federal common-law duties of care articulated by the Supreme
Court in Scindia Steam Navigation Co. v. De Los Santos, 451 U.S.
156, 165-78 (1981), and, perhaps, under New York State law also.
On June 18, 1990, Weeks entered into a general
contract with the New York City Department of Transportation to repair
and reconstruct certain parts of the Staten Island Ferry Maintenance Facility.
On November 9, 1990, Weeks subcontracted with Collazo for the latter to
repair stone bulkheads on a wharf at the Facility's ferry terminal. In
April 1991, Collazo hired O'Hara, a member of the dockbuilder's union,
to work as a dockbuilder on this project.
Weeks deployed two barges to assist with the
project: a "materials barge" used to store supplies and equipment, and
a "crane barge," which held and transported the crane used at the construction
site. Neither was self- propelled; Weeks initially transported them to
the site with tugboats. Subsequently, workers on the pier, including O'Hara,
moved the barges short distances within the construction site using winches
and pulleys in order to place them where needed. On the date of O'Hara's
accident, both barges were moored to bulkheads on the pier; neither had
been moved for some two months.
O'Hara alleges that he was "assigned to" the
crane barge during the five months in which he worked on the pier-reconstruction
project. He testified that "[m]ore than half of [his] working time was
spent working on either the crane barge or the materials barge." Pl.'s
Aff. dated Dec. 14, 1995, ¶ 7. O'Hara's duties, ordinarily carried
out at the direction of his foreman, a Collazo employee, included transporting
and assembling construction supplies.
On or about September 16, 1991, a bundle of
"stay-in-place forms" -- steel partitions used for poured concrete -- fell
into the water when a sling on the crane that had been transporting them
broke. The next day, according to Weeks's statement of undisputed material
facts, O'Hara helped divers recover and clean these forms.
O'Hara testified that because of the substantial
weight of the forms, the crane would ordinarily have been used to lift
them, but on the day he was injured, September 17, 1991, "[t]he crane was
Pl.'s Aff. dated Jan. 27, 1999, ¶ 6. Leo Nobiger, a Weeks employee
supervising the construction, therefore "told [O'Hara] to move [the stay-
in-place forms] by hand." Id. O'Hara alleges that while performing
this job without assistance, he strained himself severely and sustained
"a hernia with serious complications." Id.
On September 14, 1994, O'Hara filed suit against
Weeks and Collazo under the Jones Act and the LHWCA.3
On June 12, 1996, the United States District Court for the Eastern District
of New York (I. Leo Glasser, Judge) granted Weeks's motion for summary
judgment on O'Hara's Jones Act claim because it concluded that the barges
did not constitute "vessels in navigation" and O'Hara did not qualify as
a "seaman" under the Jones Act. O'Hara v. Weeks Marine, Inc., 928
F. Supp. 257, 261 (E.D.N.Y. 1996) ("O'Hara I"). Weeks and Collazo
subsequently moved for summary judgment on the LHWCA claims. O'Hara submitted
a memorandum in opposition to that motion in which he raised for the first
time the possibility that Weeks might be liable under New York labor law.
The district court construed this passing reference to state law as a motion
seeking leave to amend the complaint. On October 25, 1999, the court granted
summary judgment to Weeks on O'Hara's LHWCA claim and denied O'Hara leave
to amend his complaint. O'Hara v. Weeks Marine, Inc., No. 94-CV-4322,
1999 WL 1129620, 1999 U.S. Dist. LEXIS 18551 (E.D.N.Y. Oct. 25, 1999) ("O'Hara
I. Standard of Review
We review de novo the district court's
grant of summary judgment, construing the evidence in the light most favorable
to the nonmoving party.
Tenenbaum v. Williams, 193 F.3d 581, 593
(2d Cir. 1999), cert. denied, 529 U.S. 1098 (2000). A district court
must grant summary judgment if "there is no genuine issue as to any material
fact and . . . the moving party is entitled to a judgment as a matter of
law." Fed. R. Civ. P. 56(c);
accord Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A fact is "material"
if it "might affect the outcome of the suit under the governing law." Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact
is "genuine" where "the evidence is such that a reasonable jury could return
a verdict for the nonmoving party." Id.
II. Overview of the Statutory Scheme
A. The Jones Act
The Jones Act confers a cause of action on
"[a]ny seaman" who suffers a "personal injury in the course of his employment."
46 U.S.C. § 688(a) (Supp. 2001). Congress enacted the Act in 1920
in order to remove then- existing barriers to the right of seamen to recover
damages for injuries caused by their employers' negligence. Chandris,
Inc. v. Latsis, 515 U.S. 347, 354 (1995); see also McDermott
Int'l, Inc. v. Wilander, 498 U.S. 337, 341-42 (1991) (chronicling congressional
attempts to create a negligence action for seamen, culminating in the Jones
Act). The Jones Act provides "heightened legal protections [to] seamen
. . . because of their exposure to the 'perils of the sea.'" Chandris,
515 U.S. at 354 (citations omitted). While land-based employees -- including
land-based maritime workers -- typically can recover from their employers
for work-related injuries only through scheduled no-fault compensation
schemes, the Jones Act gives seamen an express right of action in tort
because of their status as "'wards of the admiralty'" who "'are by the
peculiarity of their lives liable to sudden sickness from change of climate,
exposure to perils, and exhausting labour.'" Id. at 354-55 (quoting
v. Gordon, 11 F. Cas. 480, 485, 483 (C.C. Me. 1823) (No. 6,047) (Story,
B. The LHWCA
The LHWCA "establishes a comprehensive federal
workers' compensation program that provides longshoremen and their families
with medical, disability, and survivor benefits for work-related injuries
and death." Howlett v. Birkdale Shipping Co., 512 U.S. 92, 96 (1994);
Gravatt v. City of N.Y., 226 F.3d 108, 115 (2d Cir. 2000). "[E]mployee[s]"
eligible for LHWCA benefits include "any person engaged in maritime employment,
including any longshoreman or other person engaged in longshoring operations,
and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker
. . . ." 33 U.S.C. § 902(3). But the LHWCA expressly excludes, inter
alia, "a master or member of a crew of any vessel." Id. §
902(3)(G). Under the LHWCA, an "employer" is one "whose employees are employed
in maritime employment, in whole or in part, upon the navigable waters
of the United States." Id. § 902(4).
The LHWCA entitles employees to no-fault compensation
payments for work- related injuries. As with most other workers' compensation
schemes, this entitlement displaces the employee's common-law right to
bring an action in tort against his or her employer. The LHWCA limits employer
liability to the provision of scheduled no-fault compensation payments.
§§ 904, 905(a). An injured LHWCA employee may, however, sue a
third party -- typically the owner or charterer of the vessel on which
he or she sustained the injury -- for negligence. Id. § 933(a);
Gravatt, 226 F.3d at 115.
The LHWCA and the Jones Act complement one
another. The Jones Act allows seamen to recover for negligence against
their employers; the LHWCA authorizes maritime workers other than
seamen to recover for negligence, but only against parties other than
their employers. See Chandris, 515 U.S. at 355-56 (describing
these two acts as "mutually exclusive compensation regimes"). Indeed, while
the Jones Act does not define "seaman," its definition begins where the
definition of the term "employee" in the LHWCA ends. Cf.Southwest Marine,
Inc. v. Gizoni, 502 U.S. 81, 86-87 (1991) (comparing the two statutes).
It is therefore "'odd but true that the key requirement for Jones Act coverage
now appears in another statute.'" Chandris, 515 U.S. at 356 (quoting
498 U.S. at 347).
III. O'Hara's Jones Act Claims
A. Procedural Posture
O'Hara brought claims in the district court
under the Jones Act against both Collazo and Weeks. At oral argument before
us, however, O'Hara's counsel represented that his client intended to appeal
the dismissal of his Jones Act claim against Collazo only.
The district court dismissed O'Hara's Jones
Act claims against both Collazo and Weeks because it concluded (1) that
the barge on which O'Hara sustained his injury was not a "vessel in navigation"
under the test set forth in Chandris, 515 U.S. at 368; and (2) that
O'Hara did not qualify as a "seaman" within the meaning of the Jones Act.
I, 928 F. Supp. at 259-61. O'Hara contests these conclusions on appeal.
Collazo argues that we should affirm the district court's order on the
ground that O'Hara neither alleged nor produced evidence to show that Collazo
Because the district court dismissed both
of O'Hara's Jones Act claims upon Weeks's motion for summary judgment,
in which Collazo declined to join, O'Hara I, 928 F. Supp. at 258
n.1, the district court had no occasion to consider the issue of Collazo's
negligence in connection with the Jones Act claims. Nor did the parties
litigate this issue in connection with O'Hara's LHWCA claims, because O'Hara
conceded that he could not bring an LHWCA action for negligence against
Collazo, his employer. O'Hara II, 1999 WL 1129620, at *1 n.1, 1999
U.S. Dist. LEXIS 18551, at *4 n.1.
We need not and do not reach the issue Collazo
urges upon us -- its lack of negligence. Neither must we decide whether
the district court correctly concluded that the Weeks barges were not "vessels
in navigation." Because we agree with the court that O'Hara does not qualify
as a "seaman" under the Jones Act, we affirm on that ground.
B. O'Hara's Status as a "Seaman"
Only seamen are "entitled to sue for damages
under the Jones Act." Harbor Tug & Barge Co. v. Papai, 520 U.S.
548, 553 (1997). To prove "seaman status," an employee must establish his
or her (1) "'employment-related connection,'" (2) "'to a vessel in navigation.'"
v. Yonkers Constructing Co., 82 F.3d 30, 32 (2d Cir. 1996) (quoting
Wilander, 498 U.S. at 354-55). The district court concluded that
O'Hara failed to establish either element. O'Hara I, 928 F. Supp.
An "employment-related connection" to a vessel
exists if two conditions are satisfied: First, the "worker's duties must
contribute to the function of the vessel or to the accomplishment of its
mission"; second, the worker's connection to the vessel must be "substantial
in both its duration and its nature." Tonnesen, 82 F.3d at 32 n.2
(citing Chandris, 515 U.S. at 368).
The former inquiry focuses on "the plaintiff's
employment at the time of the injury." Fisher v. Nichols, 81 F.3d
319, 322 (2d Cir. 1996). The putative seaman need not "aid in navigation
or contribute to the transportation of the vessel, but a seaman must be
doing the ship's work." Wilander, 498 U.S. at 355. This standard
is liberal. The Supreme Court has said that "[a]ll who work at sea in the
service of a ship are eligible for seaman status." Chandris,
515 U.S. at 368 (emphasis in original; internal quotation marks and citation
The second inquiry focuses on "whether the
plaintiff derives his livelihood from sea-based activities." Fisher,
81 F.3d at 322. The Court has described this inquiry as "status based":
"Land-based maritime workers do not become seamen because they happen to
be working on board a vessel when they are injured, and seamen do not lose
Jones Act protection when the course of their service to a vessel takes
them ashore." Chandris, 515 U.S. at 361. The Jones Act does not
protect workers with "only a transitory or sporadic connection to a vessel
in navigation." Id. at 368.
Whether an employee qualifies as a seaman
"is a mixed question of law and fact." Papai, 520 U.S. at 554. Summary
judgment is appropriate "where the facts and the law will reasonably support
only one conclusion."
Wilander, 498 U.S. at 356; see alsoChandris,
515 U.S. at 371 (noting that summary judgment should be granted "where
undisputed facts reveal that a maritime worker has a clearly inadequate
temporal connection to vessels in navigation").
We conclude that O'Hara fails the second part
of the test for determining whether he had an "employment-related connection"
to a vessel: the extent to which he "derive[d] his livelihood from sea-based
activities." Fisher, 81 F.3d at 322. O'Hara's connection
to the vessel qua vessel was insufficiently "substantial in terms
of both its duration and its nature,"
Chandris, 515 U.S. at 368,
to support the conclusion that he qualifies as a seaman.
To be sure, O'Hara spent more than half his
working hours during a five- month period aboard the barges, but he spent
all of that time performing tasks related to repair of the Staten Island
pier, while the barges were secured to the pier. O'Hara belonged to the
dockbuilders union. He held no Coast Guard license or other "seaman's papers."
He never spent the night aboard a barge. Neither did he ever operate a
barge or otherwise assist in its navigation. See Papai, 520
U.S. at 555 ("[T]he inquiry into the nature of the employee's connection
to the vessel must concentrate on whether the employee's duties take him
to sea."); Chandris, 515 U.S. at 359-60 (clarifying that seaman
status is a function of the worker's "relationship as such to the vessel
and its operation in navigable waters") (internal quotation marks and citation
omitted). Finally, no evidence suggests that O'Hara had an employment-related
connection to another vessel.
Even assuming the barges were "vessels in
navigation," O'Hara thus produced no evidence from which a reasonable jury
could conclude that he "derives his livelihood from sea-based activities."
81 F.3d at 322. At most, the evidence establishes that O'Hara had a "transitory
or sporadic" connection to the Weeks barges, the relevant "vessels in navigation,"
in their capacity as vessels in navigation. Such a minimal connection
does not suffice to confer seaman status on him.
Chandris, 515 U.S.
at 368. Because O'Hara does not qualify as a "seaman" within the meaning
of the Jones Act, we affirm the dismissal of his Jones Act claims.
IV.O'Hara's Claims Under the LHWCA
A. The Scindia Duties.
O'Hara brought his LHWCA claim against Weeks
under 33 U.S.C. § 905, which provides in pertinent part:
In the event of injury to a person
covered under this chapter caused by the negligence of a vessel, then such
person . . . may bring an action against such vessel as a third party .
. . . If such person was employed by the vessel to provide stevedoring
services, no such action shall be permitted if the injury was caused by
the negligence of persons engaged in providing stevedoring services to
Id. § 905(b).
The LHWCA does not define negligence for the
purpose of actions against third-party vessel owners under § 905(b).
But in Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156
(1981), the Supreme Court articulated federal common-law standards to guide
judicial determinations of liability under this subsection. See id.
at 165-78. These so-called "Scindia duties," recently summarized
in Gravatt, 226 F.3d at 120-21, establish duties of care owed by
vessel owners to stevedores and their employees, and to other contractors
and non-longshoring harbor workers.
1. The Turnover Duty. "First, before
turning over the ship or any portion of it to the stevedore [or other contractor
employing non-longshoring harbor workers], the vessel owner must exercise
'ordinary care under the circumstances to have the ship and its equipment
in such condition that an expert and experienced stevedore will be able
by the exercise of reasonable care to carry on its cargo operations with
reasonable safety.'" Id. at 120- 21 (quoting Scindia, 451
U.S. at 167). This "turnover duty" also imposes on vessel owners (and others
falling within the statutory definition of "vessel") a duty to warn stevedores
or other contractors of hazards which the "vessels" know or should know
and which are unknown or would not be obvious to the stevedore. Howlett,
512 U.S. at 98-99.
2. The Active Control Duty. "Second,
once stevedoring operations [or other operations by a contractor] have
begun, the vessel [owner and others falling within the statutory definition
of "vessel"] will be liable 'if it actively involves itself in [those]
operations and negligently injures a longshoreman [or other harbor worker],'"
or if the owner acts negligently with respect to hazards "'in areas, or
from equipment, under the active control of the vessel during the stevedoring
[or contractor's] operation.'"
Gravatt, 226 F.3d at 121 (quoting
451 U.S. at 167) (emphases omitted).
3. The Duty to Intervene. Third, "[w]ith
respect to obvious dangers in areas under the principal control of the
stevedore, the vessel owner [and others falling within the statutory definition
of "vessel"] must intervene if it acquires actual knowledge that (1) a
condition of the vessel or its equipment poses an unreasonable risk of
harm and (2) the stevedore [or other contractor] is not exercising reasonable
care to protect its employees from that risk." Id. (citing Scindia,
451 U.S. at 175-76).
B. Weeks's Potential Liability.
The district court found no evidence that
Weeks breached its Scindia duties. O'Hara II, 1999 WL 1129620,
at *2, 1999 U.S. Dist. LEXIS 18551, at *8-*9. Specifically, the court concluded
failed to proffer any evidence attributable
to a defective condition on the barge, nor any neglect on the part of defendant
Weeks Marine that contributed to O'Hara's injury. Nor ha[s] [O'Hara] offered
any evidence as to Weeks'[s] knowledge -- actual or constructive -- of
a dangerous condition that would impose a duty to act.
Id., 1999 WL 1129620, at *2, 1999 U.S.
Dist. LEXIS 18551, at *9. We disagree. Despite the record's scant evidence
respecting Weeks's conduct, we hold that a reasonable jury could find,
based upon it, that Weeks breached its "duty to intervene" or its "active
control" duty. A vessel owner's
Scindia duty to intervene arises
upon actual knowledge of (1) a risk created by a dangerous condition; and
(2) a high probability that the stevedoring entity or other contractor
-- here, Collazo -- will not exercise reasonable care under the circumstances
to protect its employees from that risk. Gravatt, 226 F.3d at 121
(citing Scindia, 451 U.S. at 175- 76).
On September 16, 1991, the day before O'Hara
sustained his injury, the sling on Weeks's crane, which normally would
have been used to lift the stay-in-place forms into position, broke. O'Hara
testified that Leo Nobiger, an employee of Weeks supervising the project,
ordered him to help divers recover these forms. According to O'Hara, Nobiger
told him to lift the forms "by hand" and without "mechanical assistance,"
because the Weeks crane was "not available." Pl.'s Aff. dated Jan. 7, 1999,
¶ 2; Pl.'s Aff. dated Jan. 27, 1999, ¶ 6. O'Hara further testified
that at the time of his injury, no other Collazo employees were available
to assist him and that Nobiger alone "chose the method" by which O'Hara
would lift the forms. Id. ¶ 5.
A reasonable jury could conclude that manually
lifting steel forms -- a task that, according to O'Hara's affidavit testimony,
is ordinarily performed by a crane - and doing so alone, constitutes an
unreasonably dangerous activity. The district court doubted that "lift[ing]
'very heavy' steel forms" constitutes a "dangerous condition sufficient
to trigger liability under Scindia," but concluded that in any event
this condition "presented an obvious danger, of which O'Hara should have
been aware." O'Hara II, 1999 WL 1129620, at *2, 1999 U.S. Dist.
LEXIS, at *9. Assumption of risk is not, however, a defense in an LHCWA
action; the statute establishes a comparative rather than a contributory
negligence scheme. Evans v. Transportacion Mar. Mexicana SS "Campeche",
639 F.2d 848, 852 (2d Cir. 1981) ("Congress specifically incorporated the
admiralty concept of comparative negligence in place of the traditional
terrene doctrines of contributory negligence and assumption of the risk
. . . ."); see also id. at 857 n.10 (rejecting the doctrines of
contributory negligence and assumption of risk as incompatible with the
LHWCA's legislative history). The extent, if any, of O'Hara's comparative
negligence remains for the trier of fact to determine. See Moore
v. M.P. Howlett, Inc., 704 F.2d 39, 42 (2d Cir. 1983) (noting that
a "shipowner is not relieved of liability as a matter of law simply because
it relied . . . on the stevedore's judgment to proceed with the work in
spite of [a dangerous] condition") (internal citations omitted).
A reasonable jury could further conclude that
Nobiger, as Weeks's agent, knew or should have known of the risk to O'Hara.
Nobiger allegedly told O'Hara to lift the steel forms "by hand" and "without
mechanical assistance." If the trier of fact were to credit these allegations,
it could infer that Nobiger knew that lifting the forms without the mechanical
assistance ordinarily provided by the Weeks crane posed an unreasonable
risk. And if, as O'Hara alleges, no other Collazo employees were available
to help, the trier of fact could infer that Nobiger knew or should have
known that Collazo, O'Hara's employer, could not exercise due care under
the circumstances to protect O'Hara from this risk. See Scindia,
451 U.S. at 175. Viewed in the light most favorable to O'Hara, then, the
evidence suffices to raise a genuine issue of material fact as to whether
Weeks, through the actions of its employee Nobiger, breached its duty to
For substantially the same reasons, O'Hara's
testimony suffices to withstand summary judgment on the issue of whether
Weeks breached its "active control" duty. Viewed in the light most favorable
to O'Hara, the evidence could support a finding that Nobiger, who had been
actively supervising the barge's salvaging operation for Weeks, knew of
the risks posed by that operation, but negligently ordered O'Hara to lift
the stay- in-place forms nonetheless.
See Scindia, 451 U.S.
at 167 (noting that a vessel owner may bear liability "if it actively involves
itself in the cargo operations and negligently injures a longshoreman");
also Lubrano v. Royal Neth. S.S. Co., 572 F.2d 364, 367 (2d
Cir. 1978) (observing that if evidence shows that "a ship's officer, after
being notified of [an] open and obvious danger," nonetheless had "men keep
working or join[ed] in the stevedore's decision to do so, then there would
be a jury question" as to § 905(b) liability).
Because issues within the province of the
trier of fact could subject Weeks to liability as a third-party vessel
owner pursuant to 33 U.S.C. § 905(b) and the relevant duties of care
articulated by the Supreme Court in Scindia, we conclude that the
district court's grant of summary judgment to Weeks on O'Hara's LHWCA claim
C. Weeks As A Dual-Capacity Defendant
Weeks argues that even assuming the existence
of these questions of fact, our decision in Gravatt entitles it
to immunity as a dual-capacity defendant. Weeks's assumption that it qualifies
as a dual-capacity defendant in the same manner as did the defendant in
however, is wrong. "Dual capacity" refers to a defendant's relationship
to the plaintiff, i.e., as the plaintiff's "employer," on the one
hand, and as the "vessel" alleged to have caused the plaintiff's injury,
on the other. In Gravatt, the defendant both owned the vessel and
directly employed the plaintiff.
See 226 F.3d at 111. Here, Weeks
owned the vessel but never formally employed the plaintiff. By contrast
to the situation in Gravatt, Weeks does not relate to the plaintiff
O'Hara in two distinct capacities -- as vessel owner and as employer --
for the purpose of analyzing its § 905(b) liability. Weeks's argument
that it enjoys immunity from liability under Gravatt is thus unavailing.5
V.The New York Labor Law Claims
O'Hara's complaint asserts claims under the
Jones Act and the LHWCA. In his memorandum in opposition to Weeks's motion
for summary judgment on the LHWCA claim, however, O'Hara argued that he
"may rely" on duties imposed on Weeks by New York labor law. The district
court construed this as "an informal motion to amend the complaint," Tr.
of Oral Argument at 5, but denied it, principally on the ground that the
claims would be barred by New York's three-year statute of limitations.6O'Hara
II, 1999 WL 1129620, at *3, 1999 U.S. Dist. LEXIS 18551, at *10-*11.
A. Standard of Review
We review the district court's decision to
deny O'Hara leave to amend his complaint for abuse of discretion. Pangburn
v. Culbertson, 200 F.3d 65, 70 (2d Cir. 1999). In general, a plaintiff
may amend his or her complaint to include otherwise time-barred claims
if "the claim or defense asserted in the amended pleading arose out of
the conduct, transaction, or occurrence set forth or attempted to be set
forth in the original pleading." Fed. R. Civ. P. 15(c)(2). Where the amendment
would involve a new cause of action, however, the district court may deny
leave unless "the original complaint gave the defendant fair notice of
the newly alleged claims."
Wilson v. Fairchild Republic Co., 143
F.3d 733, 738 (2d Cir. 1998).
B. New York Labor Law
O'Hara proposes new claims under N.Y. Lab.
Law §§ 200 and 241(6).7
Section 200 requires owners of construction sites8
"to provide reasonable and adequate protection . . . to the persons employed
therein or lawfully frequenting such places." N.Y. Lab. Law § 200(1);
v. Louis N. Picciano & Son, 54 N.Y.2d 311, 316-17, 445 N.Y.S.2d
127, 129, 429 N.E.2d 805, 807 (1981) ("Section 200 of the Labor Law merely
codified the common-law duty imposed upon an owner or general contractor
to provide construction site workmen with a safe place to work."). Owners
bear liability under § 200 only if they (1) exercise supervisory control
over the activity that causes the injury, see Lombardi v. Stout,
80 N.Y.2d 290, 295, 590 N.Y.S.2d 55, 57, 604 N.E.2d 117, 119 (1992); and
(2) have either actual or constructive notice of the hazard posed by that
activity, see Mantovi v. Nico Constr. Co., 217 A.D.2d 650,
651, 629 N.Y.S.2d 486, 487 (2d Dep't 1995).
Section 241(6) requires contractors and construction
site owners and their agents when constructing or demolishing buildings
"to provide reasonable and adequate protection and safety to persons employed
therein" and to ensure that construction sites comply with safety regulations
promulgated by the Commissioner of the New York State Department of Labor.
N.Y. Lab. Law § 241(6); Ross v. Curtis-Palmer Hydro-Elec. Co.,
81 N.Y.2d 494, 501-02, 618 N.E.2d 82, 86, 601 N.Y.S.2d 49, 53 (1993).
The district court denied O'Hara's motion
to amend in a summary fashion.9
We have some doubt about its analysis.
We agree that a district court may deny leave
to amend the complaint if the amendment would be futile. See, e.g.,
v. Imcera Group, Inc., 47 F.3d 47, 55 (2d Cir. 1995). O'Hara's proposed
§ 241(6) claim may be futile because he fails to allege that Weeks
violated a specific provision of a New York safety code. New York case
law suggests that to state a cause of action under § 241(6), a plaintiff
must plead and prove violations of specific regulations. SeeRoss,
81 N.Y.2d at 502, 618 N.E.2d at 86, 601 N.Y.S.2d at 53-54 (1993) (holding
that plaintiff's "§ 241(6) claim must fail because of the inadequacy
of his allegations regarding the regulations defendants purportedly breached");
v. City of N.Y., 227 A.D.2d 429, 430, 642 N.Y.S.2d 690, 691 (2d Dep't
1996) (granting summary judgment to the defendant where the plaintiff did
not plead a breach of "any concrete specification of the Industrial Code").
If a § 241(6) claim must allege that the defendant violated a specific
rule or regulation, then the denial of O'Hara's proposed amendment would
be affirmable on this ground alone. But New York law is not altogether
clear in this regard because § 241(6) does not on its face require
that a plaintiff allege the violation of a specific rule or regulation.
With respect to O'Hara's proposed claim under
§ 200, the district court may have premised its dismissal on the same
view of the facts that led it to dismiss O'Hara's LHWCA claim at the summary
judgment stage, namely, that the plaintiff failed to offer evidence of
a dangerous or defective condition that would impose a duty to act on Weeks
See O'Hara II, 1999 WL 1129620,
at *2, 1999 U.S. Dist. LEXIS 18551, at *9. Applying Fed. R. Civ. P. 15(c),
the district court apparently concluded that because O'Hara failed to demonstrate
that Weeks had actual or constructive knowledge of a hazardous condition
sufficient to trigger a Scindia duty, O'Hara's proposed claim under
§ 200 could not "relate back" to the "conduct, transaction, or occurrence"
that allegedly gave rise to his LHWCA claim. See O'Hara II,
1999 WL 1129620, at *3, 1999 U.S. Dist. LEXIS 18551, at *10-*11 (denying
the plaintiff leave to amend his complaint to add state law claims "for
the same reasons set forth above," i.e., in connection with the LHWCA claim
against Weeks, and citing Mantovi for the proposition that §
200 liability requires that the owner have actual or constructive notice).
If the district court denied the plaintiff
leave to add a § 200 claim for this reason, it may well have erred
for the reasons explained in subsection IV.B.2., supra. In short,
a claim under N.Y. Lab. Law § 200, like a claim under 33 U.S.C. §
905(b) based on the negligence of a third-party vessel owner, may exist
where a defendant has actual or constructive notice of a hazard and fails
to protect workers from that hazard. See Scindia, 451 U.S.
at 167, 175-76; Mantovi, 217 A.D.2d at 651, 629 N.Y.S.2d at 487.
Rather than attempt to resolve these questions
ourselves in the first instance, we remand for the district court to reconsider,
in light of this opinion, whether O'Hara should be granted leave to add
claims under the New York Labor Law at this stage of the proceedings.
We note, finally, that the first allegation
that Weeks may have had actual or constructive notice of the dangerous
condition that injured O'Hara appears in his affidavit dated January 7,
1999, which he submitted more than five years after he filed his complaint
and in opposition to Weeks's
second motion for summary judgment.
"[C]onsiderations of undue delay . . . and prejudice to the opposing party
[are] touchstones of a district court's discretionary authority to deny
leave to amend." Barrows v. Forest Labs., Inc., 742 F.2d 54, 58
(2d Cir. 1984) (footnote omitted);
see also Ansam Assocs. v.
Cola Petroleum, Ltd., 760 F.2d 442, 446 (2d Cir. 1985) (observing that
amendments tend to be "especially prejudicial" when discovery has been
completed and a motion for summary judgment filed). But decisions to grant
or deny leave to amend remain within "the sound discretion of the trial
court," Krumme v. Westpoint Stevens, Inc., 143 F.3d 71, 87 (2d Cir.
1998). The district court may wish to consider this further upon remand.
For the foregoing reasons, we affirm the dismissal
of O'Hara's Jones Act claims and his LHWCA claim against Colazzo. We vacate
the court's grant of summary judgment to Weeks on O'Hara's claims under
the LHWCA and its denial of O'Hara's motion to amend his complaint to assert
state law claims against Weeks, and remand for further proceedings consistent
with this opinion.
The Honorable Reena Raggi of
the United States District Court for the Eastern District of New York,
sitting by designation.
For convenience, and because
the plaintiff Lisa O'Hara's claim for loss of consortium depends entirely
on the claims of her husband Gerard, we refer in the remainder of this
opinion only to the principal plaintiff Gerard O'Hara.
The plain inference to be drawn
from the evidence before us is that the crane was unavailable because its
sling had broken the previous day. But O'Hara claims on appeal that the
need to lift the stay-in-place forms manually was "brought on by the fact
that there was no engineer available to operate the crane of the crane
barge." Appellant's Br. at 4. His citation to the record on appeal, however,
does not support this claim; nor can we locate evidence elsewhere in the
record to substantiate it.
Weeks and Collazo subsequently
filed cross-claims against each other, and Collazo initiated a third party
action against The Home Insurance Company. On May 5, 2000, the parties
stipulated to the dismissal of these claims.
In his memorandum of law in
opposition to the defendants' motion, O'Hara conceded that in light of
the district court's decision in O'Hara I, his claim against Collazo
under the LHWCA must be dismissed. In O'Hara II, the district court
therefore granted Collazo's motion for summary judgment on the plaintiff's
LHWCA claim against it without discussion. O'Hara II, 1999 WL 1129620,
at *1 n.1, 1999 U.S. Dist. LEXIS 18551, at *4 n.1.
Weeks may, however, qualify
as a dual-capacity defendant in a different respect, namely, as O'Hara's
"employer" under the borrowed- servant doctrine. Arguably, at the time
of O'Hara's accident, Weeks had borrowed O'Hara from Collazo to assist
it in salvaging the steel forms; and if Weeks thereby became O'Hara's "borrowing
employer," then it may be entitled to LHWCA immunity from O'Hara's negligence
suit. But we have yet to decide whether the borrowed-servant doctrine applies
in the context of the LHWCA. See Am. Stevedoring Ltd. v. Marinelli,
248 F.3d 54, 64 (2d Cir. 2001) (collecting cases from other circuits applying
the borrowed-servant doctrine to the LHWCA context). Neither party raised
this issue before the district court so far as we can tell; and O'Hara,
not Weeks, alluded to it on appeal, and then only by citing in his reply
brief Savard v. Marine Contracting, Inc., 471 F.2d 536 (2d Cir.
1972), a Jones Act case in which the plaintiff requested "that the jury
be charged that [he] was a loaned servant," id. at 540. Because
"it is a well-established general rule that an appellate court will not
consider an issue raised for the first time on appeal," Maska U.S.,
Inc. v. Kansa Gen. Ins. Co., 198 F.3d 74, 79-80 (2d Cir. 1999),
and that, even if raised in the district court, "[n]ormally, we will not
consider arguments raised for the first time [on appeal] in a reply brief
. . . ," Keefe v. Shalala, 71 F.3d 1060, 1066 n.2 (2d Cir. 1995)
(citation omitted), we do not address this issue.
O'Hara's failure to make a
formal motion is not dispositive.
See McLaughlin v. Anderson,
962 F.2d 187, 195 (2d Cir. 1992) (noting that where the plaintiff has made
its desire to amend clear, the lack of a formal motion does not require
the district court to deny leave to amend; the decision to grant or deny
leave remains within the court's discretion).
On appeal, O'Hara addresses
his arguments to §§ 200 and 240 of the Labor Law, rather than
§§ 200 and 241(6). We confine our analysis to the provisions
cited to the district court.
Barges and docks may be deemed
construction sites for the purposes of both sections. See, e.g.,
v. City of New York, 95 N.Y.2d 583, 590, 744 N.E.2d 114, 119, 721 N.Y.S.2d
579, 584 (2000) (sections 200 and 241(6) apply to the City as the owner
of municipal piers); Rigopoulos v. State, 236 A.D.2d 459, 460, 653
N.Y.S.2d 667, 699 (2d Dep't 1997) (applying the same as to a floating barge
used in bridge repair).
The district court opinion discusses
the issue as follows:
Although not pleaded in the Complaint,
plaintiffs argue in their memorandum of law that Weeks is liable for O'Hara's
injuries pursuant to N.Y. Lab. Law §§ 200 and 241(6). Because
the alleged injury occurred in September of 1991, any claim under these
sections is barred by the (3 year) statute of limitations. Plaintiffs'
request to amend their Complaint is denied for the same reasons set forth
above. See Mantovi v. Nico Const. Co., 217 A.D.2d 650, 629
N.Y.S.2d 486 (2nd Dept. 1995) (absent actual or constructive notice of
a defective condition, there can be no liability pursuant [to] Labor Law
§ 200 for failure to provide a safe place to work); Ross v. Curtis-Palmer
Hydro-Elec. Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49, 618 N.E.2d 82 (1993)
(finding of liability requires violation of the specific, safety rules
and regulations promulgated by the Commissioner of the Department of Labor).
O'Hara II, 1999 WL 1129620,
at *3, 1999 U.S. Dist. LEXIS 18551, at *10-*11 (footnote describing §§
200 and 241(6) omitted).