Murray v. City of New York
Murray v. City of New York
Opinion of the Court
SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court, entered on April 8, 2008, is AFFIRMED.
New York City Police Officer Thomas Murray appeals from an award of summary judgment in favor of defendants on his Jones Act, unseaworthiness, and general-maritime claims for injuries sustained when he slipped on the stern deck of a private tugboat, the Rachel Marie, that Murray boarded from New York City Police Department Launch 37 in the course of providing assistance to the tug. We review the district court’s grant of summary judgment de novo, see Havey v. Homebound Mortgage, Inc., 547 F.3d 158, 163 (2d Cir. 2008), and its evidentiary and discovery rulings for abuse of discretion, see Estate of Landers v. Leavitt, 545 F.3d 98, 113 (2d Cir. 2008); In re “Agent Orange” Product Liability Litig., 517 F.3d 76, 102 (2d Cir. 2008). In conducting our review, we assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.
1. Grant of Summary Judgment to the City of New York
Because the City of New York does not own the vessel on which Murray slipped, plaintiffs Jones Act and unseaworthiness claims against the City essentially reduce to one theory: that the City inadequately trained Murray to engage in rescue operations such as the one performed for the Rachel Marie. Murray argues on appeal that the district court erred in concluding that (1) his expert evidence supporting this theory would not have been admissible at trial, see Fed.R.Evid. 702; Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); and (2) he did not otherwise adduce sufficient evidence to overcome summary judgment.
Because the other evidence Murray introduced did not remedy this causational deficiency, the district court properly awarded summary judgment to the City defendants.
2. Grant of Summary Judgment to the Noil-City Defendants
Murray submits that three issues of disputed material fact precluded an award of summary judgment in favor of the non-City defendants: (1) whether the presence of tug lines and equipment caused Murray to slip; (2) whether the Rachel Mane’s stern deck was adequately lit; and (3) whether the Rachel Mane’s deck was wet due to water improperly pumped from the Rachel Marie itself and not just rain and seawater.
We are not persuaded. Murray testified that he believed the wet floor, “in combination with the lines and the equipment strewn about the stern of the boat,” caused him to slip. But “[a] party opposing summary judgment does not show the existence of a genuine issue of fact to be tried merely by making assertions that are eonelusory, or based on speculation.” Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir. 2008) (internal citation omitted). Murray plainly stated that he slipped — not tripped — and, absent further explanation of just how the lines and equipment “combin[ed]” to cause his injury, his quoted testimony is insufficiently detailed to present a genuine issue of material fact. See id.
Finally, in his Rule 56.1 statement, Murray admitted that the “fantail and deck of TUG RACHEL MARIE were wet due to weather and sea conditions.” Plaintiffs Local Civil Rule 56.1(b) Responsive Statement ¶8 (Aug. 80, 2007). That statement was consistent with the evidence presented on summary judgment, which confirmed that intermittent bursts of heavy rain and winds preceded Murray’s boarding. Nowhere in his Rule 56.1(b) statement or elsewhere before the district court did Murray assert that improper water pumping contributed to his injuries. We will not entertain a new theory on appeal from a grant of summary judgment. See Gurary v. Winehouse, 190 F.3d 37, 44 (2d Cir. 1999) (stating that party challenging summary-judgment grant “will not be heard” to advance argument on appeal based on theory not raised below); see also Belgrade v. Pena, 254 F.3d 384, 386 (2d Cir. 2001).
For these reasons, the judgment of the district court is AFFIRMED.
. To the extent the expert faulted the City for not training Murray to assess the Rachel Marie's "unsafe condition,” i.e., the "lack of lighting, equipment and lines cluttering the deck, and unstable condition due to water ingress,” the necessary causal link is severed by the fact that Murray never indicated that he failed to appreciate such risks. Indeed, he testified that, when conducting standard inspections of vessels, he routinely directed boats to calmer waters to board them more safely.
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