ORDER
Plaintiff was injured in a slip and fall aboard the M.S. RIVER EXPLORER on November 9, 2001. The complaint alleges that the defendant owned, operated, maintain and controlled the RIVER EXPLORER and that plaintiff; a passenger, was injured in consequence of unspecified negligence. He brings this action under the admiralty jurisdiction for negligence and breach of the contract of passage. The matter now is before the Court on plaintiff's motion for partial summary judgment of liability and for other relief and defendant's motion for summary judgment dismissing the complaint which, as limited by its counsel's letter of September 16, 2004, is on the grounds that (a) the action is barred by a limitation of suit provision allegedly contained in plaintiff's passenger ticket contract and, in any case, (b) defendant lacked notice of the allegedly dangerous condition.
It is important to note at the outset that although the vessel appears to have been owned by an entity known as RCI River Cruise Ship Operators II AG, it now is agreed that defendant is estopped to deny that it is the owner of the vessel.1
A. Defendant's Motion
1. The Alleged Ticket Limitation
Defendant here relies upon two terms allegedly contained in the ticket contract, one requiring notice of an injury within six months and the other requiring the institution of suit within one year. The basis for its motion is an affidavit of Harry S. Melikian, which plaintiff contends should be excluded as a sanction for defendant's alleged discovery abuse. It is unnecessary to decide that question, however, as Mr. Melikian's affidavit would not avail the defendant on this point even if it were properly before the Court.
Plaintiff contends that defendant waived these defenses by failing to plead them as affirmative defenses. Defendant counters that the complaint specifically alleged that plaintiff "brought the within lawsuit within the limitation of suit provision contained in the passenger ticket contract," that it denied that allegation in its answer, and that no more was required.2
In fact, defendant's memorandum misstates the complaint, which alleges only that "[w]ithin the time limitations set forth in the Passage Contract ... , defendant was duly notified of plaintiffs' [sic] injuries and intention to make claim for damages." Cpt. ¶ 11. Thus, even assuming that a plaintiff's allegation of compliance with contractual conditions could overcome a defendant's failure to plead the defense affirmatively, plaintiff never alleged timely institution of this action. Defendant's failure to plead that the action was not timely commenced therefore waived any such defense. See, e.g.. Chimblo v. Commissioner, 177 F.3d 119, 125 (2d Cir. 1999).
This leaves defendant's contention that plaintiff failed to give timely notice of his alleged injuries as allegedly required by the ticket. In this case, there is a genuine issue of material fact as to what documents were given to plaintiff and as to their contents. It therefore is impossible to determine on motion what if any notice was required, let alone whether the legal standards determining the sufficiency of limitations in passenger tickets were satisfied.
2. Lack of Notice of Dangerous Condition
"Passengers injured aboard a vessel have a cause of action in admiralty if the injury is caused by negligence imputed to the owner or operator of the vessel. Monteleone v. Bahama Cruise, 838 F.2d 63 (2d Cir.1988); Rainey v. Paquet Cruises, Inc., 709 F.2d 169 (2d Cir.1983). The standard of conduct is `one of reasonable care under the circumstances.' Monteleone, 838 F.2d at 64-65 (citing Rainey, 709 F.2d at 172); accord, Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 631-32, 79 S.Ct. 406, 410-11, 3 L.Ed.2d 550 (1959). It must reflect `[t]he extent to which the circumstances surrounding maritime travel are different from those encountered in daily life and involve more danger to the passenger ...' Rainey, 709 F.2d at 172. At the same time, '[t]here is no sound reason to require that a carrier exercise a high degree of care for those trifling dangers which a passenger meets "in the same way and to the same extent as he meets them daily in his home or in his office or on the street, and from which he easily and completely habitually protects himself."' Id. at 171 (quoting Livingston v. Atlantic Coast Line R. Co., 28 F.2d 563, 566 (4th Cir.1928))
"Against this background, the principles governing `slip and fall' cases arising at sea in circumstances that involve no special risks associated with the maritime location of the accident are similar to those that govern in cases arising ashore. The owner is liable for accidents caused by defects of which the owner has actual or constructive knowledge. Monteleone, 838 F.2d at 65-66." Lee v. Regal Cruises, Ltd., 916 F. Supp. 300, 302-03 (S.D.N.Y. 1996), of 'd, 116 F.3d 465 (2d Cir. 1997) (table).
In this case, there is abundant evidence that plaintiff crossed a waterlogged mat located just inside an exterior door, picked up moisture on his shoes, and then slipped and fell when he stepped off the mat onto a highly polished, hard floor surface. There is, likewise, abundant evidence that it had been raining for some time, that passengers had been entering the interior of the ship through the door adjacent to the mat for some time, that the mat had been extremely wet for some time, and that ship personnel were in the vicinity. There is ample evidence to go to the jury on the issue whether the owner had constructive notice of a dangerous condition that was a proximate cause of the accident.
B. Plaintiff's Motion for Partial Summary Judgment
Plaintiff seeks partial summary judgment determining that (a) there was a dangerous condition of which defendant had at least constructive notice and that the condition was a proximate cause of the accident, (b) defendant is estopped to deny ownership of the vessel, and (c) defendant cloaked the alleged owner of the vessel with apparent authority and therefore is liable for its negligence as a matter of law.
1. Negligence
The undisputed evidence demonstrates that the weather was rainy, that water was being tracked onto the mat, and that plaintiff fell as a proximate consequence of getting his shoes wet by walking across the mat and then slipping when he stepped onto the polished, hard floor. Plaintiff is entitled to partial summary judgment to that extent. There is no competent evidence, however, concerning the extent of his injuries. Nor can it be said that the evidence of constructive knowledge of the dangerous condition is so overwhelming that it existed as a matter of law.
2. Agency and Estoppel to Deny Ownership In view of defendant's concession, these issues no longer are in the case.
C. Conclusion
Plaintiff's motion for partial summary judgment [docket item 37] is granted to the extent that the Court determines that (1) plaintiff was injured in consequence of a fall caused, at least in part, by his stepping onto a hard, polished floor while wearing shoes that had become wet from crossing a floor mat situated inside an exterior door that had become wet as a result of the entry of other passengers from outside during a rain storm, and (2) defendant is estopped to deny that, at the time of the accident, it was the owner of the vessel. It is denied in all other respects.3 Insofar as the motion seeks sanctions for discovery misconduct, the denial is without prejudice to an application at trial to preclude the testimony of Mr. Melikian.
Defendant's motions for summary judgment dismissing the complaint [docket item 27] and to strike portions of the affidavit of plaintiffs counsel [docket item 43] are denied.4
The Court will hold a final pretrial conference on November 19, 2004 at 2 p.m. in Courtroom 12D. Trial counsel shall appear with full authority to settle the case or with clients having such authority.
SO ORDERED.
1. Letter of Frank DeAngelis, Sept. 16, 2004.
2. Def. Reply Mem. 8.
3. The Court will deal with the application for sanctions either at the final pretrial conference or otherwise.
4. Plaintiffs counsel would be well advised, when appearing in federal court, not to submit argumentative affidavits which purport to summarize facts of which she lacks personal knowledge or argue the law. As the Court has not relied upon any factual assertions of that sort, the motion to strike is academic.