The opinion of the court was delivered by: JOSEPH E. IRENAS
Plaintiff fell while mounting a crane on a pontoon platform system chartered by the defendant, thereby sustaining serious and permanent injuries. He and his wife initially brought suit under the Jones Act and related maritime provisions, but later stipulated that he was in fact a longshoreman as the term is used in the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. 901 et seq. Plaintiff's amended complaint stated two causes of action, one for negligence under the LHWCA, the other for loss of consortium. Defendant now comes before this Court with a motion to dismiss under Fed. R. Civ. P. 12(b)(6), and in the alternative moves for summary judgment under Fed. R. Civ. P. 56.
Because genuine issues of material fact exist as to whether the platform on which the plaintiff was injured qualifies as a "vessel" under § 905(b) and whether the plaintiff was aware that oil had leaked onto one of the wheel hubs, defendant's motion for summary judgment is denied as to all claims.
Defendant W.H. Streit, Inc. is a construction company that specializes in marine construction. It contracted to perform repairs on several electrical transmission line towers crossing the Patuxent River, near Chalk Point, Maryland. Plaintiff Brian Koernschild was assigned to the Patuxent site in the winter of 1991.
Among the items loaded onto the flexifloat on which the plaintiff worked was a Bantam hydraulic crane, which was secured to the barge with metal cables. Plaintiff operated this crane on several occasions, mostly to move smaller boats from the barge to the water. At various times, plaintiff noticed that the crane appeared to be leaking oil or lubricant; he made entries to this effect in the crane's operating log. In addition, plaintiff brought the leaks to the attention of his supervisor, Michael Reed, who allegedly told him to continue using the crane.
On July 10, 1991, plaintiff attempted to board the crane by stepping into the hub of one of the tires. He slipped and fell, sustaining serious injuries to his back. Plaintiff filed a complaint against W.H. Streit in November, 1992. He alleged various causes of action under the Jones Act, 46 U.S.C. § 688 et seq., and general maritime law; his wife Roberta also filed a claim for loss of consortium.
In June of 1993, the parties entered into a Stipulation wherein they agreed that Brian Koernschild was not a "seaman" or "member of the crew" as defined by the Jones Act.
Plaintiff then withdraw all claims filed under the Jones Act, proceeding instead under the Longshore and Harbor Workers' Compensation Act. Plaintiffs filed an amended complaint on June 17, 1993. It alleged two causes of action: one for "negligence of the vessel" under § 905(b) of the LHWCA, and Roberta Koernschild's claim for loss of consortium.
On August 30, 1993, defendant filed a motion to dismiss, and, in the alternative, a motion for summary judgment. It contended that the flexifloat barge was not a "vessel" for purposes of the Act; even if it were, defendant claimed that plaintiff's knowledge of the risk of leaking lubricant precluded recovery under Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 68 L. Ed. 2d 1, 101 S. Ct. 1614 (1981). In addition, defendant claimed that Roberta Koernschild's action for loss of consortium was barred by Miles v. Apex Marine Corporation, 498 U.S. 19, 112 L. Ed. 2d 275, 111 S. Ct. 317 (1990).
I. The Appropriate Standard of Review
A. The Standard under Fed. R. Civ. P. 56(c)
Defendant has framed this motion as one to dismiss under Rule 12(b)(6), or, in the alternative, as one for summary judgment under Rule 56. When making a determination under Rule 12(b)(6), the court cannot consider matters outside of the pleadings. When, as here, both parties present extraneous material as part of their motion or opposition, this court has the discretion to accept the extraneous material and convert the motion into one for summary judgment. Fed. R. Civ. P. 12(b); Rose v. Bartle, 871 F.2d 331, 339-40 (3d Cir. 1989); Wiley v. Hughes Capital Corp., 746 F. Supp. 1264 (D.N.J. 1990); Elysian Federal Savings v. First Interregional Equity, 713 F. Supp. 737, 740 (D.N.J. 1989); 5 Charles Wright & Arthur Miller, Federal Practice and Procedure § 1366 at 678 (West 1969 & Supp. 1989).
Under Fed. R. Civ. P. Rule 56(c), "summary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
At the summary judgment stage, it is not the role of the judge to weigh the evidence or to evaluate its credibility, but simply to determine "whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving party such that a reasonable jury could return a verdict for that party. Id. Although the moving party bears the initial burden of informing the district court of the basis for its motion, there is no requirement in the Rule that the moving party support its motion with affidavits or other similar materials negating the opponent's claim. Celotex, 477 U.S. at 323.
The Supreme Court has stated that "a party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (citation omitted) (internal quotations omitted). The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986) (citations omitted).
The substantive law governing the dispute will determine which facts are material, and only disputes over those facts "that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Finally, summary judgment should be granted unless the dispute over a material fact is genuine, which the Court ...