AMENDED1 MEMORANDUM & ORDER Plaintiff Roger Nasser broke his ankle falling down a set of stairs on a ferry in the New York harbor. He brings claims against the ferry operator, defendant Port Imperial Ferry Corp., for negligent failure to maintain and inspect the stairs, and for the negligent design and construction of the ship’s stairwell. Port Imperial moves for summary judgment on all claims. As explained below, Defendant’s motion is granted in part and denied in part. I. Background The incident in question occurred on the Alexander Hamilton, a ferry built in 1989 that transports passengers between Governors Island and Whitehall Terminal in lower Manhattan. See 28 U.S.C. §112(c) (“The Eastern District comprises…the waters within the counties of Bronx and New York,” “concurrently with the Southern District”). As Plaintiff descended the port-side stairs to disembark, his foot missed the second step, causing him to fall. Plaintiff testified at deposition that he fell because the second step was “too narrow” and “the distance between the steps” was “not the same ratio.” Def’s Ex. 1 (O’Connor) at 114:17-22; 116:14, ECF No. 23-5 (“Nasser Dep.”). He also testified that he could not break his fall because the handrail was “kind of high.” Id. 113:9-22. In addition to his own testimony, Plaintiff has adduced evidence that the top two steps were of unequal dimensions, and that the height of the handrail was four inches higher than the U.S. Coast Guard’s regulations permit. Plaintiff’s expert witness, Dr. James Pugh, examined the stairway in question and attested that “the top riser [i.e., the topmost step] varies considerably in height from 8 inches on the right side (in the direction of descent) to 6 inches on the left side,” while the second-highest step “has an 8-inch riser height and 9-inch tread width.” Pl.’s Ex. A (Goldfarb) 4, ECF No. 23-25 (“Pugh Decl.”); see also Def’s Ex. 2 (Colletti) Fig. 3, ECF No. 23-15 (“Colletti Report”) (top riser varied from 7-¾ inches to 5-¾ inches). Dr. Pugh further attested that differences of this magnitude between steps increase the risk of falling because “the brain becomes ergonomically accustomed and programmed” to expect consistent step dimensions. Pugh Decl. 6. In response, Defendant argues that the Coast Guard certified the ferry for operation despite these conditions, and that inspectors have re-certified the ferry every year since 1990 without raising any concerns about the stairwell. Defendant also attests that no passengers have complained about defects on these stairs before. See Declaration of Alan Warren 15, ECF No. 23-11 (“Warren Decl.”). II. Analysis “Where a tort falls within admiralty jurisdiction, the general maritime law applies, even if the plaintiff’s complaint pleaded diversity of citizenship as the sole basis for subject matter jurisdiction.” Friedman v. Cunard Line Ltd., 996 F. Supp. 303, 305 (S.D.N.Y. 1998). “Where maritime law is silent, state law supplements the maritime law.” Guarascio v. Drake Assocs., Inc., 582 F. Supp. 2d 459, 462 n.1 (S.D.N.Y. 2008). To establish a claim for negligence, plaintiffs must establish a legal duty, a breach of that duty, causation, and damages. See, e.g., In re Treanor, 144 F. Supp. 3d 381, 385 (E.D.N.Y. 2015) (maritime case). Because Defendant does not dispute the causation or damages elements at this stage, the only question is whether Defendant breached a duty to passengers by failing to properly construct and maintain the stairwell. In their submissions, the parties focus primarily on whether the stairwell violated Coast Guard regulations. As discussed below, this raises a question of whether Defendant was per se negligent. Because the parties emphasized this issue, the Court addresses negligence per se before turning to common-law negligence. A. Negligence Per Se “[W]hen a defendant has violated a safety regulation causing an injury, courts will find the defendant per se negligent, the theory being that the legislature or agency has already determined what precautions need to be taken.” In re City of New York, 522 F.3d 279, 286 (2d Cir. 2008). “The failure to follow any Coast Guard regulation which is the cause of an injury establishes negligence per se.” Dougherty v. Santa Fe Marine Inc., 698 F.2d 232, 235 (5th Cir. 1983). The parties dispute whether the vessel violated Coast Guard regulations. They agree that Subchapter K of these regulations applies to the ferry. See 46 C.F.R. §114.110 (subchapter applies to “each vessel of less than 100 gross tons that carries more than 150 passengers” and that “carries at least one passenger for hire”); Warren Decl. 9 (the Alexander Hamilton weighs ninety-five gross tons and is certified to carry up to 399 passengers). Covered vessels must comply either with Subchapter K or the rules applicable when Subchapter K was enacted. See 46 C.F.R. §116.115(a) (“[A]n existing vessel must comply with the construction and arrangement regulations that were applicable to the vessel on March 10, 1996, or, as an alternative, the vessel may comply with the regulations in this part.”). Defendant does not dispute that the relevant steps violate Subchapter K. The question is whether the steps comply with Subchapter T, which the parties agree applied to the vessel prior to Subchapter K’s enactment. Subchapter T, in turn, incorporates Section 72.05 of Subchapter H of the Coast Guard’s regulations. See id. §177.10-5 (“Vessels contracted for on or after July 1, 1961, which carry more than 150 passengers shall meet the requirements of Subpart 72.05 of Subchapter H (Passenger Vessels) of this chapter”). And Plaintiff’s expert testified that the steps here violate Subchapter H. Section 72.05 of Subchapter H provides that: “there shall be no variation in the width of…stairs, the depth of the tread, or the height of the risers in any flight” unless necessary, 46 C.F.R. §72.05(n); “the sum of the riser height and tread depth shall be at least 17 inches and not more than 18 inches,” id. §72.05(o); and handrails must be “fitted at a vertical height above the tread at its nosing of between 33 and 36 inches,” id. §72.05(k). The record contains evidence that the riser height on the first step varied by two inches, the combined tread-and-riser dimensions on its shallower side was two-inches shy of requirements, and the height of the handrail exceeded the regulatory maximum by four inches. Pugh Decl.
