MEMORANDUM & ORDER
Plaintiffs Rabbi William Kloner and his wife, Elizabeth Kloner, commenced this
I. Background
Plaintiffs seek damages for injuries they sustained as a result of Rabbi Kloner’s fall from a staircase during a United States Coast Guard (“USCG”) retirement ceremony. (PI. Mem. in Opp’n to Def. Mot. (“PL Mem.”) 5, Docket Entry No. 33.) The USCG retirement ceremony took place on June 24, 2010, in the music hall of the Snug Harbor Cultural Center and Botanical Garden (“Snug Harbor”), a privately owned space in Staten Island. (Compl. ¶ 14.)
a. Arrangements leading up to the USCG ceremony
On February 18, 2010, the USCG and Snug Harbor entered into a rental agreement that permitted the USCG to use the music hall during its upcoming New York Change of Command and Retirement Ceremony.
Commander Carissa April, the head of planning and primary point of contact for the USCG event, made “four or five visits” to the Snug Harbor Music Hall while planning and preparing for the retirement ceremony. (Statement of Carissa April (“April Statement”) 1, annexed to Decl. of Steven S. Honigman (“Honigman Decl.”) as Ex. E, Docket Entry No. 37.)
The main staircase was configured as a stand-alone unit without hand rails, and it ascended over an orchestra pit and onto the theater stage. (Def. 56.1 ¶ 12.) The stair structure consisted of two three-riser staircases to the left and right sides of a platform, leading to a platform landing. (Sector New York Admin. Investig. (“USCG Investigation”) 4, annexed to Compl. as Ex. F.)
As depicted in photographs later taken by a USCG investigating officer, and as noted by Commander April and by Plaintiffs’ expert in the expert’s report, two other sets of enclosed staircases, behind doors, also led from the floor to the left and right sides of the stage. (See USCG Investigation 2; April Statement 1 (“How [the clergy] would get to the stage was not discussed, but they could (and in hindsight should) have used the side staircase access to the back/offstage wings .... ”); Architect’s Report on the Rabbi William Kloner’s Fall (“PI. Expert Report”) 6, annexed to Honigman Decl. as Ex. B, Docket Entry No. 35.) Both Matos and the USCG’s four-person Color Guard used the side stairs leading backstage at points throughout the ceremony. (Dep. of Ydania Matos (“Matos Dep.”) 53:21-24; 56:14-21, annexed to Hon-igman Dep. as Ex. A, Docket Entry No. 35; April Statement 1.) Snug Harbor officials had assured the USCG that the main stage staircase was “safe to use” and that it had “always been used without incident” despite the absence of protective guardrails. (Def. 56.1 ¶¶ 13-14.)
b. Operational risk management procedures
Since at least 1999, the USCG has adhered to a standardized set of instructions known as Operational Risk Management (“ORM”) procedures. (See Commandant Instruction 3500.3 (“ORM Procedures”), annexed to Honigman Decl. as Ex. F.) The procedures comprise a policy of continuously assessing and managing risks, which policy applies to “every command level and every person” during “[a]ll Coast Guard missions and daily activities, both on- and off-duty.” (Id. at CG 51.)
c. The June 24, 2010 incident
At the time of the UCSG retirement ceremony, Rabbi Kloner was an 82-year-old retired Rear Admiral of the New York Naval Militia. (Def. 56.1 ¶ 8; PI. Statement of Undisputed Facts Pursuant to Local R. 56.1 (“PI. 56.1”) ¶ 8, Docket Entry No. 34.) The Rabbi also “provided] Jewish Worship Service” pursuant to a civilian contract with USCG, for which he was paid an annual salary of $9,999.96.
On the day of the ceremony, Rabbi Kloner wore his service Dress White “choker” uniform to Snug Harbor. (Def. 56.1 ¶ 10.) Commander April had never met the Rabbi and was not aware of his age or his retired military status. (April Statement 1.) The Rabbi was greeted by Matos, who escorted him to the wooden staircase in front of the stage, (Def. 56.1 ¶ 11), and accompanied him up the staircase and on to the stage, (id. ¶ 15). There, Matos showed Rabbi Kloner his seat and podium assignment for the ceremony. (Id. ¶ 16.) Rabbi Kloner then expressed a desire to descend the stage staircase to the ground floor in order to meet with acquaintances in the audience before the start of the ceremony. (Id. ¶ 17.) Matos escorted Rabbi Kloner down the stage staircase and left him on the ground floor while she attended to official duties at the VIP check-in table. (Id. ¶ 18.) Matos testified during her deposition that she had informed Rabbi Kloner that she would “come and get [him] when it’s time to start,” (Matos Dep. 24:13-18), and that he “acknowledged” her statement by nodding,
Shortly thereafter, the Master of Ceremony (“MC”) proceeded to the main stage to announce the “officer’s call,” requesting that all standing guests take their seats. (Id. ¶ 19.) Rabbi Kloner made his way to the stage staircase and began to ascend on his own, as Matos helped the just-arrived Monsignor to his seat on the stage. (Id. ¶26.) As the Rabbi approached the final step near the top of the staircase, he lost his balance and fell to his left, into the open-air orchestra pit. (Id. ¶ 28.) He fell six and a half feet to the bottom of the pit. (Id. ¶ 29.) Two USCG medical officers and Sector New York medical staff provided emergency medical services to the Rabbi
d. Rabbi Kloner’s medical condition
Rabbi Kloner suffered severe injury from his fall, including acute intracranial hemorrhaging and multiple rib fractures and lacerations. (Compl. ¶21.) He remained comatose and dependent on a respirator for several weeks after the accident and underwent a course of neurosurgical management and treatment for several months thereafter. (Id.) After undergoing treatment at multiple health and rehabilitation centers, Rabbi Kloner was transferred to the Cobble Hill Health Center. (Id.) There, he received speech-language, occupational and physical therapy until February 13, 2013, when he was transferred to his home. (Id.) After a year and a half of treatment at the Cobble Hill Health Center, Rabbi Kloner was still unable to initiate or carry on a conversation. (Id. ¶ 22.) At home, the Rabbi requires twenty-four-hour nursing care and cannot perform basic activities of daily life without aid from several caretakers. (Id. ¶ 25.)
Mrs. Kloner incurred medical and other expenses for Rabbi Kloner’s treatment, loss of employment opportunity while she cared for her husband, and loss of consortium. (Compl. ¶¶ 42-55.)
II. Discussion
a. Standard of review
Summary judgment is proper only when, construing the evidence in the light most favorable to the non-movant, “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Davis v. Shah,
b. Feres doctrine
Defendant argues that the Court lacks jurisdiction over Plaintiffs’ claim under the Feres doctrine, which carves out an exception to federal government liability under the FTCA. (Def. Mem. 21 (citing Feres v. United States,
The United States is, generally immune from suit. See United States v. Bormes, 568 U.S. —,
Prior to the development of the Feres doctrine, the Supreme Court held that the FTCA waived federal government immunity for suits brought by members of the armed forces “for injuries not incident to their service.” Brooks v. United States,
In Feres, the Court addressed that “wholly different case,” see Feres,
The Feres doctrine “is best understood as an attempt to preclude suits by service members against the government because, as military employees, they received government disability and death benefits— benefits that [the Supreme Court] observed were similar to (and if anything more generous than) most civilian workers’ compensation awards.” Taber v. Maine,
In Wake, the Second Circuit established a list of non-dispositive factors that courts should consider in examining whether a service member’s injuries occurred incident to military service. Wake,
In deciding whether the Feres doctrine barred the plaintiff in Wake from recovering for damages sustained as a result of her injury, the Second Circuit focused on the nature of the plaintiffs activity at the time of her injury, rather than her military affiliation. Id. at 61 (“It is clear that the nature of the activity, and not the official duty status of the serviceperson, may be determinative of whether or not an activity is ‘incident to service.’”); see also Taber,
Here, Defendant argues that like the plaintiff in Wake, Rabbi Kloner, despite his civilian status, was “acting in his military capacity at the time of the accident” primarily because he “was dressed in an official naval uniform and was providing religious services pursuant to his military duties and contract with USCG.” (Def. Mem. 22 (quoting Wake,
Unlike the plaintiff in Wake, and contrary to Defendant’s assertion, Rabbi Kloner was not injured “in the course of activity incident to [military] service.” See Feres,
As Defendant correctly notes, a lack of formal military status is not dispos-itive in a Feres inquiry. (Def. Mem. 21.) More significant is “the nature of the activity,” which “may be determinative of whether or not [the plaintiff was injured] incident to service.” Wake,
Moreover, the principles underpinning Feres do not compel the Court to bar recovery in this suit. First, an award in Plaintiffs’ favor would not implicate “delicate questions involving military discipline.” See Taber,
The rationales for Feres are inapplicable to this case. Rabbi Kloner’s accident had “nothing to do with” his military career and was “not caused by service except in the sense that all human-events depend on what has already transpired.” See Taber,
c. Plaintiffs’ negligence claim
Defendant argues that summary judgment is appropriate because the USCG did not owe a cognizable duty of care to Plaintiffs and that, even if it did owe such a duty, Rabbi Kloner “severed the nexus between the alleged breach of duty and his purported damages” when he chose to climb the staircase without Matos’ aid. (Def. Reply 2.) Plaintiffs contend that the USCG negligently failed to take a number of precautions that would have prevented Rabbi Kloner’s accident — in particular, installing temporary guardrails to the main staircase,- stationing a person at the stage to assist the elderly clergy in climbing the stairs, or using the alternate stairways to the right and left of the stage. (PI. Mem. 17-19.) Because a reasonable jury could find that the USCG breached an assumed duty to Rabbi Kloner, the Court denies Defendant’s motion for summary judgment.
To establish a prima facie case of negligence under New York law,
i. Duty
The parties agree that the USCG did not owe Plaintiffs a duty of reasonable care arising from the USCG’s use of the Snug Harbor facility or creation of a dangerous condition. (PI, Mem. 12; Def. Reply 2.) Plaintiffs instead assert that the USCG assumed a duty of reasonable care to Rabbi Kloner when it (1) assigned Matos to escort him to the stage via the main stairway, and (2) instituted the ORM policy, which required the USCG to detect hazards, assess risks, and institute risk controls at events like the retirement ceremony. (PI. Mem. 13.) Defendant argues that it did not assume a duty of care toward Rabbi Kloner. (Def. Reply 8.)
A defendant owes an assumed duty of care when his or her conduct places the plaintiff “in a more vulnerable position than he would have been in had [the defendant] never taken any action at all.” Tavarez v. Lelakis,
An assumed duty arises “only where (1) the failure to exercise due care increases the risk of harm to the plaintiff or (2) the harm is suffered because of the plaintiffs reliance on the undertaking.” Tavarez,
Thus, where there is evidence that a defendant’s continued conduct either placed a plaintiff in a more vulnerable position or caused the plaintiff to detrimentally rely on the defendant, courts have found the question of duty to involve triable issues of fact. See, e.g., Kievman v. Philip,
Where there is no evidence that a defendant’s actions either placed the plaintiff in a more vulnerable position or caused the plaintiff to detrimentally rely on the defendant, courts have held as a matter of law that the defendant did not assume a duty of care. See, e.g., Tavarez,
1. Assumption of duty — Matos
Plaintiffs argue that Matos “assumed a duty of reasonable care for the safety of Rabbi Kloner when she greeted him and undertook to show him to the seat as ‘the one in charge’ to go with him up to the stage.” (Pl. Mem. 13 (quoting PL 56.1 ¶ 68).) To support their argument, Plaintiffs rely on Cohen v. Heritage Motor Tours, Inc., in which a tour participant was injured when the tour guide directed her to cross the stepping stones of a brook. Cohen,
Defendant argues that Cohen is inappo-site because “Matos did not direct Rabbi Kloner to walk up the stage staircase by himself, nor did [] Matos inform Rabbi Kloner that the safest route to the stage was the stage staircase.” (Def. Reply 7.) Defendant cites two cases to support this argument. (Id. at 7-8 (first citing Giuffra v. Vantage Travel Serv., Inc., No. 13-CV-6880,
In the absence of perfectly analogous circumstances, the Court agrees that the cited cases are instructive because they involve third-party tour operators or guides on properties they neither own nor occupy regularly but with which they are more familiar than their patrons. In such instances, “where the [third party] assumes a duty to the plaintiff, such as
Here, although the material facts are undisputed, the Court cannot decide as a matter of law whether Defendant assumed a duty of care to Plaintiffs when Matos greeted Rabbi Kloner and directed him up the main staircase to the stage. (Def. 56.1 ¶ 11,15.)
Defendant argues that Matos did not “direct Rabbi Kloner to walk up the stage staircase by himself, nor did [she] inform Rabbi Kloner that the safest route to the stage was the stage staircase.” (Def. Reply 7.) Neither, however, did the defendant in Cohen inform the plaintiff that the stepping stone path over the river was the safest route available. Cohen, 618 N.Y.S.2d. at 389. Nevertheless, the tour guide in Cohen “allegedly directed the participants to proceed in a particular manner,” which sufficed to create a triable issue of fact as to his employer’s duty. Id. (“If [the guide] directed the tour participants to follow her across the stones, she assumed a duty to exercise reasonable care since it is claimed that tour participants relied on her to guide them.”). A reasonable jury could conclude that, like the plaintiff in Cohen who had relied on her tour guide until the tour group reached the stepping stone path and who was told nothing of an alternate path once there, id. at 388, Rabbi Kloner was “directed ... to proceed in a particular manner” to the stage, id., and that in being so directed, the Rabbi was “placed ... in a more vulnerable position,” Maraia,
2. Assumption of duty — ORM manual
Plaintiffs argue that the USCG also assumed a duty of care when it instituted the ORM manual and process. (PI. Mem. 13.) Because Matos’ conduct creates , a genuine issue of fact as to Defendant’s duty, the Court declines to reach the parties’ arguments regarding the ORM manual and process.
ii. Breach and proximate cause
Defendant argues that even if it assumed a duty of care toward Rabbi Kloner, it did not breach its duty because it was not permitted to install guardrails, it was not required to station a person at the staircase when it had provided Rabbi Kloner -with an escort, and it was not required to use alternate staircases because the main staircase was not inherently dangerous. (Def. Mem. 14.) Defendant further argues that Rabbi Kloner’s own
“[C]ourts have held that gratuitous conduct may give rise to liability only when the defendant’s affirmative action adversely affected the plaintiff and the defendant failed to act reasonably.” Gordon,
Thus, in New York, a breach is necessarily implied where a defendant is found to have assumed a duty of care. See Espinal v. Melville Snow Contractors, Inc.,
The same holds true for proximate cause, a prong of common-law negligence that is impliedly subsumed within the assumption-of-duty analysis.
On the evidence before the Court, a reasonable jury could find that the USCG assumed and breached a duty of care to Rabbi Kloner, which resulted in his injury. Accordingly, the Court denies Defendant’s motion.
d. Mrs. Kloner’s damages claim
Defendant argues that Mrs. Kloner’s claims for medical and other expenses fail as a matter of law because they are derivative of Rabbi Kloner’s inadequate claims. (Def. Mem. 23.) Derivative claims, such as those for loss of consortium, cannot exist “independent of the injured spouse’s right to maintain an action for injuries sustained.” Bertini v. Smith & Nephew, Inc.,
III. Conclusion
For the foregoing reasons, the Court denies Defendant’s motion for summary judgment.
SO ORDERED.
Notes
. The facts are undisputed unless otherwise noted. The Court will refer to Plaintiffs responses to Defendant’s 56.1 and Plaintiff's statement of additional facts as "PL 56.1”; to Defendant's 56.1 and Defendant's responses to PL 56.1 as "Def. 56.1”; and to Defendant’s further replies to Plaintiff's responses as "Def. Reply 56.1.”
. Plaintiffs' exhibits A-J, annexed to the Declaration of Steven S. Honigman, are grouped and docketed as Docket Entries No. 35-38. The Court cites to the docket entry for each exhibit referenced.
. Plaintiffs’ Exhibit F, the USCG Investigation, is paginated by hand and annexed to the Complaint as four documents. (See Docket Entry No. 1.) The Court refers to the handwritten page numbers on each page of Exhibit
. The ORM Procedures include several separately paginated attachments. The Court refers to pages by their Bates stamps, which begin with "CG.”
. The parties dispute the scope of Rabbi Kloner's duties under the operative contract between the parties in 2010, (PI. 56.1 ¶ 32; Def. Reply 56,1 ¶ 32.) Plaintiffs annexed a "representative” contract to the Complaint, (Compl. ¶ 14), which was effective from October 1, 2007 through September 30, 2008 and is vague about whether Rabbi Kloner was contractually obligated to provide services beyond "weekly services on Wednesdays.” (See Solicitation/Contract/Order for Commercial Items ("Commercial Contract”), annexed to Compl. as Ex. E, Docket Entry No. I.)
. Plaintiffs dispute Matos’ account, noting that, when she gave a statement to the Coast Guard Investigating Officer four days after Rabbi Kloner's fall, she did not report her instruction to Rabbi Kloner. (See Pi. 56.1 ¶ 25 (citing Matos Dep. at 24-25).)
. Under the FTCA, the liability of the United States to a plaintiff for negligence is determined “in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b); see also Vidro v. United States,
. Defendant’s argument regarding the assumption of risk conflates the doctrine of primary assumption of risk and the element of proximate cause. (See Def. Reply 9.) To the extent that Defendant argues that Rabbi Kloner assumed the risk of his fall because he voluntarily climbed the stairs without Matos, that argument is unavailing in New York except in limited cases involving an elevated risk of danger. See Cohen v. Heritage Motor Tours, Inc.,