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FOULK v. DONJON MARINE CO.

April 8, 1997

LAYNE B. FOULK and MARJORIE E. FOULK, husband and wife, Plaintiffs,
v.
DONJON MARINE COMPANY, INC., Defendant and Third-Party Plaintiff, v. BREAKWATERS INTERNATIONAL, INC., Third-Party Defendant.



The opinion of the court was delivered by: IRENAS

 IRENAS, District Judge:

 Following a commercial diving accident in which plaintiff Layne Foulk became injured, plaintiffs instituted this action sounding in negligence and the general maritime law. The original complaint named as defendants Breakwaters International, Inc. ("Breakwaters") and Donjon Marine Company, Inc. ("Donjon"), respectively, Mr. Foulk's employer and the owner of the barge from which Mr. Foulk was working at the time of the accident. Plaintiffs thereafter amended their complaint to name only Donjon as a defendant. Donjon responded by naming Breakwaters as a third-party defendant and later amended its third-party complaint to add a claim against Breakwaters and in favor of plaintiffs.

 The parties now cross-move for partial summary judgment on the issue of Mr. Foulk's seaman status. Because this Court finds that Mr. Foulk is, as a matter of law, not a Jones Act seaman, it will grant Breakwaters' motion for partial summary judgment and deny Donjon's motion for partial summary judgment on the seaman status issue.

 I. BACKGROUND

 The Borough of Avalon, New Jersey hired Breakwaters to install an artificial reef off its coast to prevent beach erosion. On May 13, 1993, Breakwaters contracted with Donjon to provide material barges, tugs, a floating crane barge, a barge crew, and a dive crew for the project. On June 30, 1993, since Donjon's divers were non-union and Breakwaters needed to fulfill a union labor project requirement, the parties reversed the original arrangement such that Breakwaters rather than Donjon would supply the commercial dive crew. See Creter Dep. at 48-49; Witte Dep. at 62.

 On the first day of construction, Breakwaters successfully installed three pieces of the artificial reef according to plan. To connect these to each other and to a pre-existing jetty, the barge crew re-rigged the crane with a "clamshell bucket," filled it with several tons of stone, and lowered it into the water near the jetty. Mr. Foulk swam over to the bucket and began to guide the stone drop when he found himself being pushed through the water towards the jetty. Before he could take evasive action, the clamshell bucket pinned Mr. Foulk against the jetty and severely injured him. Soon after, the Coast Guard arrived and rushed Mr. Foulk to a local hospital where doctors treated him for a crushed right arm, rib fractures, a collapsed lung, and an injured right shoulder.

 On January 6, 1995, while on disability, Mr. Foulk and his wife instituted this action against Donjon and Breakwaters sounding in negligence and the general maritime law. On February 14, 1995, plaintiffs amended their complaint to name only Donjon as a defendant. On March 10, 1995, Donjon answered the amended complaint and named Breakwaters as a third- party defendant. Magistrate Judge Joel B. Rosen, by order dated June 1, 1995, amended Donjon's answer and third-party complaint to add a claim against Breakwaters in favor of plaintiffs. The parties now cross-move for partial summary judgment with respect to plaintiff's seaman status.

 II. DISCUSSION

 A. Standard for Summary Judgment

 Under Federal Rule of Civil Procedure 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). A non-moving party may not rest upon mere allegations, general denials, or vague statements in opposition to a summary judgment motion. If the non-moving party's evidence is merely colorable, or is not significantly probative, summary judgment may be granted. See Bixler v. Central Pa. Teamsters Health & Welfare Fund, 12 F.3d 1292 (3d Cir. 1993); Trap Rock Indus., Inc. v. Local 825, Int'l Union of Operating Eng'rs, 982 F.2d 884, 890-91 (3d Cir. 1992).

 It is not the role of the judge at the summary judgment stage to weigh the evidence or to evaluate its credibility, but 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). The Court must draw all inferences in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, the Court must accept the non-movant's version as true. See Pastore v. Bell Tel. Co., 24 F.3d 508, 512 (3d Cir. 1994).

 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. A genuine issue of material fact for trial does not exist "unless the party opposing the motion can adduce evidence which, when considered in light of that party's burden of proof at trial. could be the basis for a jury finding in ...


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