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Fasold v. Delaware River & Bay Authority

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 ...


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