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Plaintiff seeks wrongful death claim pursuant to the Jones Act Against City of New York – Duffy v. City of New York, 184 N.Y.S.2d 1006 (N.Y. Sup. Ct., 1958)


In this wrongful death claim, the issue is whether the decedent’s own negligence contributed to his death. The plaintiff is the widow of the decedent. The decent worked for Bronx Towing Co. as a deckhand. Bronx Towing had a contract with the City of New York pursuant to which Bronx Towing towed scows for the Department of Sanitation. The accident that resulted in the death of the plaintiff’s husband occurred when defendant Bronx Towing towed two scows from Flushing to a dock at East 91st Street. Upon arrival at the 91st Street dock, there was no city employee there to tie the scows to the dock, so Duffy did so. However, soon after the tugboat captain noticed that one of the scows that was supposed to be tied was drifting. Duffy attempted to jump about 4 feet to the second scow. When he landed on the scow, he slipped on debris that was on the deck and fell in the water. Duffy was crushed in between the two scows. He later died.

Plaintiff filed a claim against the City of New York and Bronx Towing. According to the contract between the City of New York and Bronx Towing, the City was required to supply scowmen to accompany each scow from place to place and who would be responsible for tying the scows. Plaintiff argued that had scowmen been present, then a scowman would have tied the scow, and the accident that resulted in her husband’s death would not have occurred. Specifically, the plaintiff claims that Bronx Towing was negligent for failing to provide the decedent with a safe place to work and for taking the scows in tows without scowmen. She claims that the City of New York was negligent for permitting the scows to leave without scowmen and for loading garbage in such a way that the deck became slippery.

Even though the defendants attempted to point the finger at each other, the court concluded that clearly fault lies with both parties. Bronx Towing failed to provide Duffy with a safe workplace, and the City of New York was supposed to supply scowmen. Failure to do so put Duffy in danger as he had to do work that the scowmen were supposed to do.

The City of New York attempted to relieve itself from some of the liability for Duffy’s death by arguing that Duffy’s own negligence contributed to the accident that led to his death. In other words, the City asserts that it was negligent for Duffy to have attempted to jump the long distance to the drifting scow. The City asserts that in doing so Duffy acted in an unreasonable, negligent manner, and that was at least in part, the reason that he fell and died. Thus, the City argues, any damage award should be reduced because of the decedent’s contribution to his own death.

In response to the City of New York’s contributory negligence argument, the court points out that the burden is on the defendant to prove that Duffy that was negligent. The test for contributory negligence is not what Duffy did or did not do, but what a reasonable person under the circumstances would have done. Duffy was a young, fit, ex-marine. At the time that he jumped, according to testimony from the tugboat captain, there was about 4 feet between the two scows. In addition, the scows were coming together. The court concluded that given the entirety of the circumstances, Duffy did not act negligently, but he acted reasonably. Thus, the damage award would not be reduced due to contributory negligence. The court awarded the plaintiff damages in the amount of $130,000, plus an additional $1,454.75 for funeral expenses.

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