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Fasold v. Delaware River & Bay Authority

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY


August 6, 2003

APRIL FASOLD, PLAINTIFF,
v.
DELAWARE RIVER & BAY AUTHORITY, DEFENDANT.

The opinion of the court was delivered by: Joseph H. Rodriguez United States District Judge

OPINION AND ORDER

This matter comes before the Court on Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by Defendants. For the reasons that follow, this motion will be granted and Plaintiff's claims will be dismissed.

BACKGROUND

Plaintiff April Fasold was a supervisor of the food service crew on a ferry, known as the M/V "Twin Capes," which runs from Lewes, Delaware to Cape May, New Jersey. On October 1, 1999, at approximately 9:40 a.m., Plaintiff entered the walk-in refrigerator and discovered that it had not been properly cleaned from the previous night. As supervisor, Plaintiff's job included keeping the walk-in refrigerator clean at all times. (Fasold Dep. at 72-73, Gadsby Dep. at 59-60.) Having found produce under the shelves and leakage from meat on the floor, Plaintiff began to clean at that point, even though the vessel had gotten underway and the food service crew members were serving on the line. (Fasold Dep. at 91.) While cleaning, Plaintiff came across a keg of beer on the floor of the refrigerator in the far right corner. (Id. at 95.) In order to finish cleaning, Plaintiff determined that the keg needed to be moved.

On previous occasions, Plaintiff has used a hand truck, or dolly, to move kegs of beer. Although the hand truck is supposed to be kept in the galley area, it is often moved by other crew members or left on land by the warehouse employees. On the day in question, Plaintiff could not find the hand truck and there is a dispute as to whether it was onboard. Plaintiff testified only that there was not one in the galley, but that she did not look any further.

Plaintiff also did not seek assistance from other members onboard. She testified that she looked in the galley area for someone, but that no one was there. She did not call anyone for help. Also, since her crew was assisting the public, she did not order any of them to come help her. Plaintiff's testimony was as follows:

Q: Did you consider using a dolly or a hand truck to move it?

A: Yes, but the dolly was not on the vessel.

Q: Did you go look for it?

A: No, I didn't. Well, I looked where it was supposed to be, but it wasn't there.

Q: Where was it supposed to be?

A: It was supposed to be in the - in the galley. And I didn't see it there. I couldn't find it. I had looked around to see if any of the AB's [able-bodied seamen] were around to maybe help me move the keg, and I didn't see any of them. And at that point in time, I didn't have time to go running and chase them down, so. . .

Q: Well, you weren't in any huge hurry to move this keg, were you?

A: I wanted to get the job done because our next round was going to be a lot busier than our first.

Q: Did you go looking for an AB to help you?

A: I went outside the galley. I looked around. I didn't see - usually, the guys are standing around. I didn't see any of them. I don't know if they were up in the wheelhouse having a meeting with Gadsby or what they were doing.

Q: Do you have any means of communicating with the wheelhouse from the galley on the second deck?

A: Oh, I have - we have a phone.

Q: Did you pick up the phone and call up to the wheelhouse and ask for someone to come down and help?

A: No.

Q: Did you ask any of the food service people to help you?

A: No. I had them all at their stations where they were supposed to be.

Q: When you were the supervisor, am I correct that you were responsible for the galley area, for the inventory, and the equipment in that galley?

A: Yes.

Q: When you came onboard, did you take note of the fact that there was no hand truck or dolly in the galley?

A: No.

Q: When did you first notice that there was no dolly in the galley?

A: When I went to move the keg of beer.

Q: Did you look elsewhere on the vessel other than in the galley for the dolly?

A: No.

Q: Sitting here today, do you know whether there was a dolly on the vessel?

A: Well, there's - not the - not to my knowledge.

(Plaintiff Dep. at 99-102.)

Plaintiff was warned by a former supervisor, after learning of Plaintiff's back problems, that she should seek assistance if she needs it. Specifically, William Shook testified, "Actually, I believe I remember something of that - that she had a back problem and that she could not lift things on some certain days. And they're the - would have been the same discussion of `You know your body better than I do, so tell me what you can and can't lift. And if you can't lift it, get some help.'" (Shook Dep. at 45).

The Standard Operating Procedures ("SOP") of the MV Twin Capes state, "All crew members are to work together to complete the task at hand and specific situations may require an individual to do a job that is normally not assigned to them." (SOP at 100.) Additionally, Captain Gadsby gave a standing order to the deck crew to assist the food service staff whenever possible. (Gadsby Dep. at 73.) This order was issued when Gadsby joined the crew in 1997 and was repeated at crew meetings, "every now and then." (Id.)

Plaintiff filed her Complaint on September 26, 2001 and her Amended Complaint on April 25, 2002. Count I is a claim for maintenance and cure. Count II is a claim for negligence, alleging that Defendant (a) failed to provide a reasonably safe place to work; (b) failed to properly stow and store the keg of beer; (c) failed to provide Plaintiff with a dolly to move the keg of beer which was improperly placed in the vessel's refrigeration unit; (d) failed to provide Plaintiff with a sufficient number of competent and able crew members; (e) failed to properly instruct Plaintiff; and (f) failed to promulgate or enforce safe working standards, rules and procedures. Count III is a claim of unseaworthiness, in that (a) "the keg of beer, considering its size and weight, was improperly placed in the vessel's refrigeration unit;" (b) "the vessel failed to possess proper and necessary appliances, gear and equipment, that would enable Plaintiff to safely move the improperly placed keg of beer;" and (c) "Defendant failed to possess a sufficient number of competent and able crew members to safely move the improperly located keg of beer."

Finally, Count IV is a claim for punitive damages. Plaintiff has agreed to withdraw this Count of the Amended Complaint.

Defendant has now filed a motion for summary judgment. First, Defendant argues that maintenance and cure have been provided to the extent required by law. Second, Defendant argues that it was not negligent in that there is nothing unsafe about storing a keg of beer in the refrigerator, she chose to move the keg herself, there is no evidence that a dolly was not on board, Plaintiff did not ask for help, and there were more crew members on board than is required by the Coast Guard. Third, Defendant contends that the claim for unseaworthiness should be dismissed for the same reasons as discussed above regarding negligence.

ANALYSIS

A. Standard of Review for Summary Judgment Motions

This Court will enter summary judgment only when "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 judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is "genuine" if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This burden may be satisfied by showing that the non-moving party has failed to "make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial." Id. at 322.

Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally's Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994). Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Andersen, 477 U.S. at 256-57. "A nonmoving party may not `rest upon mere allegations, general denials or . . . vague statements. . . .'" Trap Rock Indus., Inc. v. Local 825, Int'l Union of Operating Eng'rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991)).

Where a plaintiff would be required to submit expert testimony to establish an essential element of his case, the court may grant summary judgment if that testimony is "insufficient to support a jury verdict in favor of [plaintiff]." J&J Snack Food Corp. v. Earthgrains Co., 220 F. Supp. 2d 358, 368 (D.N.J. 2002). The Third Circuit has held that it was appropriate to grant summary judgment after excluding expert testimony as unreliable in a matter that would have required the assistance of an expert to establish the elements of the plaintiff's case. Oddi v. Ford Motor Co., 234 F.3d 136 (3d Cir. 2001).

B. Maintenance and Cure

"`Maintenance' is the living allowance for a seaman while he is ashore recovering from injury or illness. `Cure' is payment of medical expenses incurred in treating the seaman's injury or illness." Barnes v. Andover Co., L.P., 900 F.2d 630, 633 (3d Cir. 1990) (internal citations omitted). "[T]oday a shipowner is obliged to pay maintenance and cure regardless of any fault on its part; only willful misconduct on the part of the seaman will deprive him of its protections." Id. "The shipowner is obliged to pay maintenance and cure until the seaman has reached the point of maximum cure, that is until the seaman is cured or his condition is diagnosed as permanent and incurable." Id. at 633-34. "Because maintenance is intended to substitute for the food and lodging that a seaman enjoyed at sea, it is established that the seaman is only entitled to expenses actually incurred." Id. at 641.

Counsel for Plaintiff conceded at oral argument that he believed that all maintenance has been paid. He further represented that he would notify the Court within thirty days if the claim for maintenance and cure remained outstanding. At this point, the Court will dismiss the claims for maintenance and cure, but will retain jurisdiction for thirty days following entry of this Order.

C. Negligence

In the Amended Complaint, Plaintiff alleges negligence based on six different theories:

d. Failing to provide a reasonably safe place to work;

e. Failing to properly stow and store the keg of beer which was placed in the vessel's refrigeration unit;

f. Failing to provide plaintiff with a dolly or other mechanical devices to safely move the keg of beer which was improperly placed in the vessel's refrigeration unit;

g. Failing to provide plaintiff with a sufficient number of competent and able crew members and superior officers possessing sufficient strength to properly and safely move the keg of beer which was improperly placed in the refrigeration unit;

h. Failing to properly instruct plaintiff;

i. Failing to promulgate or enforce safe working standards, rules and procedures.

(Amended Complaint at 19.)

The elements of a Jones Act negligence claim are duty, breach of duty, notice and causation. Brogan v. United N.Y. Sandy Hook Pilots' Ass'n, Inc., 213 F. Supp. 2d 432, 435 (D.N.J. 2002). Recovery is permitted under the Jones Act if the "employer's negligence is the cause, in whole or in part, of [the] injury." Id. (citing Ribitzki v. Canmar Reading & Bates, Ltd., 111 F.3d 658, 662 (9th Cir.1997)).

Under the Jones Act, employers owe a duty to provide the seaman with a safe place to work. Id. This Court has previously held that an employer breached its duty to provide a safe place to work in having an employee perform his tasks without ensuring that proper and safe equipment was available for his use, or in training him on the proper procedure if such equipment was not available. Id. at 436-37. However, employers are only required to guard against risks or dangers which were known, or by the exercise of due care, should have been known. Id.

The standard of proof for causation is relaxed in claims made under the Jones Act. Id. The Third Circuit has held that "[c]ausation is satisfied if `the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury . . .'" Wilburn v. Maritrans GP, Inc., 139 F.3d 350, 357 (3d Cir.1998) (citing Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 506 (1957)). This "featherweight causation standard" allows a claimant to survive summary judgment by presenting "even the slightest proof of causation." Ribitzki, 111 F.3d at 664.

In Rutherford v. Lake Michigan Contractors, Inc., 132 F. Supp. 2d 592 (W.D. Mich. 2000), the Western District of Michigan granted the defendant's motion for summary judgment, finding that the plaintiff failed to establish a breach of duty. Id. at 598. The plaintiff had injured himself while attempting to move steel cables and complained that the injury would not have occurred if the defendant had supplied lighter synthetic lines or if another crew member had been available to help him. Id. at 597. The court found that the plaintiff failed to present any evidence that the lighter cables would have made his back injury less likely to occur. Id. The court further concluded that, although another deckhand was present onboard, the plaintiff failed to ask for assistance. Id. Thus, the court concluded,

That Rutherford did not seek help suggests that he did not believe he needed it, or that even if he did, he did not notify anyone that he did. Under the circumstances, the court concludes that he has failed to establish a breach of duty by [the defendant] which would render it liable to Rutherford in negligence.

Id. at 598. Thus, the plaintiff's claims of negligence were dismissed. Id.

Defendant also relies on Lyons v. Ohio River Sand & Gravel Co., 683 F.2d 99 (4th Cir. 1982), which affirmed the district court's conclusion that the sole cause of the plaintiff's injuries was his failure to seek assistance in attempting to move a heavy object. There, the plaintiff had been ordered to secure a "shaker screen." Id. at 100. When the plaintiff arrived at the equipment barge, he discovered that he would need to move a much heavier "shaker plate," which had been placed on top of the shaker screen. Id. In attempting to move the heavier shaker plate, the plaintiff injured his back. Id. The court concluded that the plaintiff's claim that there was an inadequate crew was without merit because there was a full crew of six men onboard that day, the plaintiff admitted that he was not ordered to move the heavier shaker plate, and the plaintiff conceded that he failed to seek assistance when he encountered the heavier plate. Id. at 100-01. The plaintiff claimed that the rest of the crew was busy at that time, but that, as a general rule, crew members would assist each other in situations such as that one. Id. Moreover, the court found that there was no evidence that the captain was aware that the plaintiff would attempt to move the shaker plate by himself. Id. at 101. Therefore, the court concluded that the plaintiff failed to establish a prima facie case of negligence. Id.

Finally, in Lindemann v. Empress Casino Hammond Corp., 2000 A.M.C. 2306 (N.D. Ill. 1999), the district court granted the defendant's motion for summary judgment, finding that the plaintiff, a cocktail server, was given discretion as to how many glasses she could carry. Id. at 2310. The court concluded that the plaintiff could not make a showing of negligence, even under the relaxed requirements of the Jones Act, because she could not show that the defendant required her to carry a full tray of glasses. Id. at 2311.

Here, Plaintiff herself made the decision to move the keg without assistance. Similar to the plaintiff in Rutherford, Fasold either must have determined that she did not need help, or simply failed to notify anyone of her need. Further, Plaintiff has presented no evidence that she notified anyone, including the Captain, that she was contemplating moving a keg of beer on her own. Also, just as the cocktail waitress in Lindenmann was given discretion to determine how many glasses she could carry, the evidence here shows that Plaintiff was instructed to use her discretion when deciding whether to lift heavy objects without assistance. Additionally, the SOP required all crew members to work together to complete tasks and Plaintiff conceded that AB's had helped her lift heavy objects in the past when they were available.

Plaintiff correctly argues that, for the purposes of this motion, all inferences must be drawn in the light most favorable to her. Thus, the Court will infer that the hand truck was not onboard and that the remaining crew members were preoccupied with their own duties. This does not resolve the matter, however. Even if the allegations are true, Plaintiff cannot point to a specific order to move the keg at that moment without assistance. Although Plaintiff argues that there were exigent circumstances in that the floor was dirty and she was concerned that a food inspector would shut down the food services of the vessel, this type of personal decision is not sufficient to hold the shipowner liable for negligence. As in Lyons, there has been no evidence presented to lead the Court to conclude that Defendant knew or should have known that Plaintiff would injure herself when attempting to lift a heavy object without assistance. Therefore, Plaintiff's claim for negligence will be dismissed.

D. Unseaworthiness

Plaintiff also raises a claim of unseaworthiness based on three allegations:

a. The keg of beer, considering its size and weight, was improperly placed in the vessel's refrigeration unit;

b. The vessel failed to possess proper and necessary appliances, gear and equipment, that would enable Plaintiff to safely move the improperly placed keg of beer; and

c. The Defendant failed to possess a sufficient number of competent and able crew members to safely move the improperly placed keg of beer.

Amended Complaint, Count III, ¶ 22.

The Supreme Court has distinguished claims of Jones Act negligence from those of unseaworthiness. Usner v. Luckenbach Overseas Corp., 400 U.S. 494 (1971). "Liability based upon unseaworthiness is wholly distinct from liability based upon negligence. The reason . . . is that unseaworthiness is a condition, and how that condition came into being - whether by negligence or otherwise - is quite irrelevant to the owner's liability for personal injuries resulting from it." Id. at 498. The Supreme Court has further held that "the standard is not perfection, but reasonable fitness: not a ship that will weather every conceivable storm or withstand every imaginable peril at sea, but a vessel reasonably suited for her intended services." Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550 (1960).

The criteria for fitness is not limited to the condition of the physical parts of the ship, but includes other conditions which would rise to the level of unseaworthiness.

A vessel's condition of unseaworthiness might arise from any number of circumstances. Her gear might be defective, her appurtenances in disrepair, her crew unfit. The number of men assigned to perform a shipboard task might be insufficient. The method of loading her cargo or the manner of its stowage, might be improper. For any of these reasons, or others, a vessel might not be reasonably fit for her intended use.

Edynak v. Atlantic Shipping, Inc., 562 F.2d 215, 222 (3d. Cir. 1997) (quoting Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 499). Furthermore, "unseaworthiness may be either a temporary or permanent condition." Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550 (1960). In addition, "to be seaworthy, the `things about the ship, whether the hull, the decks, the machinery, the tools furnished, the stowage, or the cargo containers, must be reasonably fit for the purpose for which they are to be used.'" Edynak v. Atlantic Shipping, Inc., 562 F.2d 215, 222 (3d. Cir. 1997) (quoting Gutierrez v. Waterman Steamship Corp., 373 U.S. 206, 213 (1963)).

As a general rule in unseaworthiness claims, a seaman's own negligence will not defeat his right to recovery. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 94 n.11 (1946). Courts have provided exceptions, however, where the unseaworthy condition is "entirely [the seaman's] own fault," Valm v. Hercules Fish Prod., Inc., 701 F.2d 235, 236 (1st Cir. 1983), or where the injury results from the "negligent use of an otherwise seaworthy vessel." Peymann v. Perini Corp., 507 F.2d 1318, 1322 (1st Cir. 1974).

Plaintiff has not established that the vessel was unseaworthy. First, no evidence has been presented that would support a conclusion that the placement of the keg in the refrigeration rendered the vessel unseaworthy. Plaintiff concedes that kegs have been stored in the refrigeration unit previously. This is not a case in which the keg was improperly stowed, causing it to roll around the refrigeration unit or causing the vessel to be unbalanced. Rather, it appears that Plaintiff argues that it was improperly stowed because it was in her way when she was attempting to clean. This does not amount to improper stowage in the absence of a direct order to move the object without assistance. Cf. Oxford Paper Co. v. The Nidarholm, 282 U.S. 681, 683 (1931) (accepting as supported by evidence the conclusions of the district court and court of appeals that improper stowage of the deckload rendered the vessel topheavy and unseaworthy).

Additionally, the absence of the handtruck or the inadequate crew are not sufficient to render the vessel temporarily unseaworthy under the circumstances presented. Although Defendant concedes that a vessel can be unseaworthy even when fully manned if there are too few crew members assigned to a given task, Defendant argues that Plaintiff must establish that she was ordered to proceed without proper assistance in order to prevail on this theory. Dickens v. United States, 815 F. Supp. 913, 918 (E.D. Va. 1993) ("To prevail on this claim of temporary unseaworthiness, [the plaintiff] was required to show that he was ordered to perform the task without adequate assistance."). There, the court held that a seaman's claim of unseaworthiness must fail where the plaintiff began flaking the line before help arrived because the plaintiff could not establish that he was ordered to proceed with inadequate assistance. Id.

Here, similarly, there is no evidence that Plaintiff was ordered to move the keg without assistance while cleaning the refrigerator. Although Plaintiff argues that the refrigeration unit "had" to be cleaned at that time, she does not cite to a standing order or a specific order that it must be cleaned even in the absence of adequate assistance to move heavy objects stowed in the unit. Therefore, Plaintiff has not made a sufficient showing that the vessel was undermanned.

The Court finds that a similar analysis can apply to an inquiry of whether there was sufficient equipment onboard. While it may be true that the handtruck was not onboard at the time that Plaintiff needed it, it was Plaintiff's decision to proceed with the project without the necessary equipment. Therefore, with respect to the claim of unseaworthiness based on the absence of the handtruck, the Court concludes that Plaintiff's injury resulted from her own negligent use of an otherwise seaworthy vessel. Again, the Court is influenced by the fact that Plaintiff chose to move the keg of beer without assistance, in the absence of a direct order to do so. Further, the Court notes that Plaintiff has raised an unseaworthiness claim regarding the absence of a handtruck that arguably should have precluded her from cleaning the refrigeration unit as opposed to the absence of an appurtenance that was required for the maintenance of the vessel itself. In that the condition of the refrigeration unit did not render the vessel unseaworthy, Plaintiff's attempt to move the keg without the assistance of either another crew member or a handtruck amounted to her negligent use of an otherwise seaworthy vessel. Therefore, Plaintiff's claim of unseaworthiness will be dismissed.

Accordingly,

IT IS THIS HEREBY ORDERED this 6th day of August 2003 that Defendant's Motion to Dismiss [23] is GRANTED; and

IT IS FURTHER ORDERED that Defendant's Motion in Limine to exclude the testimony of Alexis Fasold and Ashley Marvel [27], Defendant's Motion in Limine to exclude introduction of the Safety Committee meeting minutes and any testimony about the meetings and/or handtruck modification [28], Defendant's Motion in Limine to exclude surveillance videos of Plaintiff and testimony and reports of Dr. Goldstein and Karen Coury or any other witness regarding surveillance videos [29], Defendant's Motion in Limine to preclude testimony and evidence regarding the revocation by the FDA of Defendant's license to serve food aboard the vessel [30], and Defendant's Motion in Limine to preclude testimony of Plaintiff's expert, Charles Gmelch [31] are DISMISSED AS MOOT; and

IT IS FURTHER ORDERED that the claim for Maintenance and Cure is hereby DISMISSED without prejudice to the right, upon motion and cause shown, within thirty (30) days, to reopen this claim if Plaintiff notifies the Court that the claim remains outstanding.

20030806

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