United States District Court, D. New Jersey
September 19, 2005.
IN RE: COMPLAINT OF WEEKS MARINE, INC., AS OWNER OF THE WEEKS 263 LOADLINE DECK BARGE, WEEKS 272 CARFLOAT AND WEEKS 254 GANTRY CRANE, FOR EXONERATION FROM OR LIMITATION OF LIABILITY.
The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge
Presently before the Court are Weeks Marine Inc.'s ("Weeks
Marine") Motion to Dismiss the strict liability claim asserted by
claimant South Jersey Port Corporation ("SJPC"); SJPC's
Cross-Motion for Summary Judgment; and W.H. Streit's ("Streit")
Motion for Summary Judgment. Claimants Hill International, Inc.
("Hill") and Hudson Engineers, Inc. ("Hudson"), and Third Party
Defendant Streit have joined in Weeks Marine's Motion. The Court
has jurisdiction over this matter pursuant to 28 U.S.C. § 1333.
For the reasons set forth below, Weeks Marine's Motion is
granted; SJPC's Cross-Motion for Summary Judgment is denied; and
Streit's Motion for Summary Judgment is granted in part and
denied in part, without prejudice.
I. BACKGROUND AND PROCEDURAL HISTORY
Weeks Marine was awarded the contract for the construction of
the Battleship New Jersey Memorial Pier ("Memorial Pier"), which
is located adjacent to the Beckett Street Terminal along the
Delaware River in Camden, New Jersey. Claim of SJPC at ¶¶ 15, 18.
Beckett Street Terminal is owned by SJPC. Id. at ¶ 4. The
construction of Memorial Pier included a substantial amount of
pile driving, for which Weeks Marine was responsible. It
conducted the pile driving operations from April 27, 2001 through
July 9, 2001 and from August 4, 2001 through August 23, 2001.
Id. at ¶ 21.
On the morning of August 22, 2001, SJPC observed a depression
beneath a crane at one of the four berths of the Beckett Street
Terminal. Id. at ¶ 35. Efforts were made to move the crane
without success, and at approximately 4:20 p.m., a 125 foot
fissure appeared, a loud crack was heard, and the crane collapsed
over the sea wall. Id. Following the collapse, two of the
Beckett Street Terminal berths were no longer serviceable and
could no longer be used to dock vessels, or to load or unload
cargo. Id. at ¶¶ 36-37. SJPC asserts that the collapse resulted
from Weeks Marine's pile driving activities. On August 8, 2003, SJPC filed suit in New Jersey Superior Court
against (i) Weeks Marine; (ii) S.T. Hudson Engineers, Inc., the
engineers for the Memorial Pier Project; and (iii) Hill
International, Inc., the construction manager on the project, to
recover damages for the collapse of the two berths of the pier at
Beckett Street Marine Terminal. South Jersey Port Corporation v.
S.T. Hudson Engineers, Inc., Camden County Superior Court,
Docket No. L-004508-03. Subsequently, Weeks Marine filed the
instant Complaint for Exoneration from or Limitation of
Liability, pursuant to 46 U.S.C. § 181 et seq., and SJPC's suit
filed in New Jersey Superior Court was stayed by this Court's
Order dated February 6, 2004. In re Weeks Marine, Inc., No.
04-494 (D.N.J. Feb. 6, 2004) (order directing issuance of notice
and restraining suits). In the instant action, SJPC has filed a
claim for the damage sustained to its pier, and cross and counter
claims have been filed by and against Hudson, Hill, the Home Port
Alliance ("HPA"), which is the owner of Memorial Pier, and
Streit, the contractor hired by SJPC to make repairs to the
Beckett Street Marine Terminal in early 2001.
On June 23, 2004, Weeks Marine filed a Motion to Dismiss Count
I of SJPC's claim. Count I asserts that Weeks Marine should be
strictly liable for its pile driving activity. The Court held
oral argument on the Motion on July 16, 2004. Based on issues
raised at argument, the Court denied Weeks Marine's Motion to
Dismiss without prejudice, and ordered that if Weeks Marine
re-filed its Motion, counsel should brief: (1) at what stage in
the proceedings the Court is able to decide this motion and upon
what record; (2) whether the Court can make a determination if
pile-driving is abnormally dangerous in general, or whether the
Court must evaluate if the pile-driving in this case was an
abnormally dangerous activity; and (3) the application of the six
factors listed in the Restatement (Second) of Torts, § 520
(1977), as adopted by the New Jersey Supreme Court in Dep't of
Env't Prot v. Ventron Corp. 94 N.J. 473, 491-92 (1983), to the facts of this case. In re Weeks Marine,
Inc., No. 04-494 (D.N.J. July 16, 2004) (order denying Motion to
Dismiss). Weeks Marine refiled its Motion on December 29, 2004.
In response to this renewed motion, SJPC filed a Cross-Motion for
On July 9, 2004, Weeks Marine filed a Third Party Complaint
against Streit, asserting that if it is determined that Weeks'
pile driving activities caused damage to the Beckett Street
Marine Terminal, Streit is partially or wholly liable for such
damage based upon Streit's pile driving in the course of
performing repairs to the Beckett Street Terminal at the
direction of SJPC and under the supervision of Hudson. Weeks
Marine Third Party Complaint at ¶¶ 8-12. Streit filed a Motion
for Summary Judgment on June 16, 2005.
A. Applicable Standard
Weeks Marine's Motion is before the Court as a Motion to
Dismiss pursuant to Fed.R.Civ.P. 12(b)(6). SJPC and Streit
have filed Motions for Summary Judgment pursuant to
Fed.R.Civ.P. 56. Because SJPC filed an Answer on April 2, 2004, Weeks
Marine's Motion is in fact a Motion for Judgment on the Pleadings
pursuant to Fed.R.Civ.P. 12(c). See Fed.R.Civ.P.
12(h)(2). See also Doe v. Div. of Youth and Family Servs.,
148 F. Supp. 2d 462, 497 (D.N.J. 2001). The standard for
analyzing a Rule 12(c) motion is the same as the standard for a
motion to dismiss under Fed.R.Civ.P. 12(b)(6). Id.
(citations omitted). In evaluating a Rule 12(c) motion, the Court
is to "view the facts presented in the pleadings and the
inferences to be drawn therefrom in the light most favorable to
the nonmoving party." Soc'y Hill Civic Ass'n v. Harris,
632 F.2d 1045, 1054 (3d Cir. 1980). A claim should be dismissed only
if "no relief could be granted under any set of facts that could
be proved." Turbe v. Gov't of the Virgin Islands, 938 F.2d 427,
428 (3d Cir. 1991) (citing Unger v. Nat'l Residents Matching
Program, 928 F.2d 1392, 1394-95 (3d Cir. 1991)). If, however, on a motion made pursuant
to Rule 12(c), matters outside the pleadings are presented to and
not excluded by the court, the motion is to be treated as one for
summary judgment pursuant to Fed.R.Civ.P. 56.
Fed.R.Civ.P. 12(c). See also Citisteel USA, Inc. v. General Elec. Co.,
78 Fed. Appx. 832, 834-35 (3d Cir. 2003) (unpublished decision).
Upon consideration of matters outside the pleadings, summary
judgment is appropriate when there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). A genuine issue of material
fact is one that will permit a reasonable jury to return a
verdict for the nonmoving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). To show that a genuine issue of
material fact exists, the nonmoving party may not rest upon mere
allegations, but must present actual evidence in support thereof.
Id. at 249 (citing First Nat'l Bank of Arizona v. Cities Svc.
Co., 391 U.S. 253, 290 (1968)). In evaluating the evidence, the
Court must "view the inferences to be drawn from the underlying
facts in the light most favorable to the [nonmoving] party."
Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002) (quoting
Bartnicki v. Vopper, 200 F.3d 109, 114 (3d Cir. 1999)). As
discussed herein, the Court will consider matters outside the
pleadings, and will therefore conduct the analysis herein
pursuant to Fed.R.Civ.P. 56.
B. Existence of a Strict Liability Cause of Action
1. Admiralty Jurisdiction
District courts have exclusive jurisdiction over tort claims
arising out of pile driving activities in navigable waters
pursuant to 28 U.S.C. § 1333. Jerome B. Grubart, Inc. v. Great
Lake Dredge & Dock Co., 513 U.S. 527, 529 (1995). "With
admiralty jurisdiction comes the application of substantive admiralty law." East River S.S. Corp.
v. Transamerica Delaval, Inc., 476 U.S. 858, 864 (1986) (citing
Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249, 255
(1972)). "Absent a relevant statute, the general maritime law, as
developed by the judiciary, applies." Id. (citations omitted).
It is not contested that the general maritime law does not
provide a strict liability cause of action for pile driving
activity, and therefore cannot serve as the basis for SJPC's
strict liability claim.*fn1 "[T]he `maritime law that
governs a traditional maritime tort . . . requires findings of
fault and causation as predicates to liability." In Great Lakes
Dredge & Dock Co. v. City of Chicago, 1996 WL 210081, at *5
(N.D. Ill. Apr. 26, 1996) (quoting Md. Dep't of Natural Res. v.
Kellum, 51 F.3d 1220, 1224 (4th Cir. 1995)). "`Liability for
collisions, allisions, and other types of marine casualties is
based upon a finding of fault that contributed to the damage
incurred. From earliest times, this rule has been consistently
applied.'" Kellum, 51 F.3d at 1224, (quoting Schoenbaum,
Admiralty and Maritime Law 444 (1987)).
SJPC does not contest that there is no strict liability cause
of action pursuant to federal maritime law, but instead argues
that New Jersey law provides a strict liability cause of action
for this activity, and this law should be permitted to supplement
(or, alternatively, should be incorporated into) federal maritime
law. The exercise of federal admiralty jurisdiction does not
necessarily displace the application of state law. Jerome B.
Grubart, Inc., 513 U.S. at 545. "Whether a state claim is
litigated in federal court or a state forum, `the extent to which
state law may be used to remedy maritime injuries is constrained
by a so-called `reverse-Erie' doctrine which requires that the substantive remedies afforded by the
States conform to governing federal maritime standards.'" In re
Complaint of Nautilus Motor Tanker Co., Ltd., 900 F. Supp. 697,
702 (internal quotations omitted). State law is preempted by
federal maritime law where a state remedy contravenes an
essential purpose expressed by an act of Congress, works material
prejudice to the characteristic features of the general maritime
law, or interferes with the proper harmony and uniformity of that
law in its international and interstate relations. American
Dredging Co. v. Miller, 510 U.S. 443, 447 (1994); Southern Pac.
Co. v. Jensen, 244 U.S. 205, 216 (1917).
For this Court to reach SJPC's argument that the federal
maritime law requiring proof of fault and causation should not
preempt its state strict liability claim, SJPC must first
demonstrate that New Jersey would recognize such a claim. SJPC
admits that no New Jersey court has held a defendant strictly
liable for pile driving activity (nor does any New Jersey court
appear to have confronted the question). However, SJPC argues
that the Supreme Court of New Jersey would recognize such a
claim. If the Court finds that the Supreme Court of New Jersey
would fail to so hold, SJPC may not maintain a strict liability
claim because there would be neither a federal nor a state law
basis for asserting such a claim.*fn2 2. Abnormally Dangerous Activity
SJPC argues that the Supreme Court of New Jersey would find
that the vibrations caused by pile driving constitute an
abnormally dangerous activity because the nature of the activity
is similar to blasting from rocket testing, which the Court held
to be an ultra-hazardous activity in Berg v. Reaction Motors
Div., Thiokel Chemical Corp., 37 N.J. 396 (1962). Following
Berg, however, the Supreme Court of New Jersey adopted the
analysis of the Restatement (Second) of the Law of Torts (1977)
("Restatement") to determine whether a defendant should be
strictly liable for an "abnormally dangerous" activity.
Ventron., 94 N.J. at 488 ("Since Berg, the Restatement . . .
has replaced the "ultrahazardous" standard with one predicated
on whether the activity is "abnormally dangerous"). The doctrine
imposes liability upon those who introduce an extraordinary risk
of harm into the community, despite any social utility that the
activity may provide. T& E Indus., Inc. v. Safety Light Corp.,
123 N.J. 371, 3868-7 (1991).
Section 520 of the Restatement requires consideration of six
factors in determining whether an activity is abnormally
(a) the existence of a high degree of risk of some
harm to the person, land or chattels of others;
(b) the likelihood that the harm that results from it
will be great;
(c) the inability to eliminate the risk by the
exercise of reasonable care;
(d) the extent to which the activity is not a matter
of common usage;
(e) the inappropriateness of the activity to the
place where it is carried; and
(f) the extent to which its value to the community is
outweighed by its dangerous attributes.
Restatement (Second) of Torts § 520 (1977).
All of the factors are to be considered, and no single factor in
§ 520 alone is necessarily sufficient for the conclusion that an
activity is abnormally dangerous. Restatement § 520, comment h. It is not necessary that each factor be present if
the other factors weigh heavily for or against a finding that an
activity is abnormally dangerous. Restatement § 520, comment
f. Ordinarily, a court must find that several factors apply in
order to impose strict liability. Id. Weeks Marine argues that
the Court can perform the Restatement analysis, and determine
whether SJPC has stated a strict liability claim as a matter of
law, on a Motion to Dismiss. In support, Weeks Marine cites to
Fletcher v. Conoco Pipe Line Co., 129 F. Supp. 2d 1255
(W.D. Mo. 2001), in which the court dismissed plaintiffs' strict
liability claim at the motion to dismiss stage as a result of
plaintiffs' failure to meet their "burden of coming forward with
facts sufficient to support a theory of strict liability" based
upon an analysis of Restatement § 520.
Weeks Marine also cites to In re Chicago Flood Litig.,
680 N.E.2d 265, 279-281 (Ill. 1997), and In re Chicago Flood
Litig., No. 93C1214, 1993 WL 239041 (N.D. Ill. June 28, 1993),
the only federal case to perform the Restatement § 520 analysis
with respect to pile driving.*fn3 In those cases, both the
federal and state court found that pile driving was not
abnormally dangerous. The Supreme Court of Illinois upheld the
appellate court's determination that the complaints failed to
sufficiently allege facts to meet the first three factors of
Restatement § 520, because the "complaints pled their
conclusion pile driving is inherently or intrinsically dangerous without pleading sufficient facts showing why." In
re Chicago Flood Litig., 680 N.E.2d at 280.
SJPC's claim certainly would not withstand dismissal pursuant
to Rule 12(c) based upon the holdings of those courts. SJPC's
claim asserts that Weeks Marine was responsible for and conducted
all of the pile driving for Memorial Pier. SJPC Claim ¶ 19. The
claim further describes the types of vibratory and impact hammers
used by Weeks Marine to drive the piles. Id. at ¶¶ 20, 22-32.
SJPC asserts that the collapse of the piers and resulting damages
and losses were caused by "Weeks' negligence" and actions taken
with respect to the construction of the Memorial Pier; the
insufficiency and unseaworthiness" of the Weeks Marine vessels;
and by the "fault, neglect and incompetence" of the operators,
master and crew of the Weeks Marine vessels. Id. at ¶ 40. The
claim concludes in its first count that the "pile driving
activity conducted by Weeks Marine constitutes an ultra-hazardous
activity which introduces an unusual danger into the community."
Id. at ¶ 46. SJPC makes no allegations with respect to any of
the Restatement factors.
The Court is not persuaded, however, by the reasoning in
Fletcher, nor that of the Illinois Supreme Court In re Chicago
Flood, that a motion to dismiss is appropriate in this setting
based upon SJPC's failure to plead sufficient facts. Pursuant to
Fed.R.Civ.P. 8(a), SJPC is only required to plead "a short
and plain statement of the claim." Moreover, even if the Court
were to require that allegations regarding the Restatement
factors be plead in the claim, presumably SJPC would amend to so
The Restatement itself is instructive on this point. Whether
an "activity is an abnormally dangerous one is to be determined
by the court, upon consideration of all the factors listed in
this Section, and the weight given to each that it merits upon
the facts in evidence." Restatement § 520, comment l. The Restatement explicitly considers a
weighing of facts in evidence, instead of making a decision
based upon the pleadings alone. Moreover, the Court notes the
difficulty of performing the Restatement § 520 analysis
pursuant to Rule 12(c) because it would be required to accept the
parties' arguments as to each of the factors as truth, without
any idea as to whether the arguments are grounded in fact. The
Court thus finds that the Restatement § 520 analysis is more
appropriately undertaken upon a more complete record, and will
therefore consider matters outside the pleadings pursuant to
Fed.R.Civ.P. 56.*fn4 Indeed, SJPC has moved for summary
judgment on its claim.
In addition, the Court conducts the Restatement analysis with
respect to Weeks Marine's pile driving activity alleged in SJPC's
claim, rather than pile driving activity generally. "Under the
Restatament analysis, whether an activity is abnormally
dangerous is to be determined on a case-by-case basis, taking all
relevant circumstances into consideration." Ventron,
94 N.J. at 491. See also T&E Indus., 123 N.J. at 386-87 (holding that
Appellate Division erred in determining that the processing of
radium and disposal of its waste product was per se abnormally
dangerous); Amland Prop. Corp. v. Aluminum Co. Of Am.,
711 F. Supp. 784 (D.N.J. 1989) (Barry, J.).
(a) Existence of a high degree of risk of some harm to the
person, land or chattels of others
SJPC argues that Weeks Marine's pile driving posed a risk of
injury or death to persons operating the pile driver, and
further, that pile driving activities and the vibrations they
cause present a risk of damage to nearby buildings or structures.
Deposition of Martin Corcoran at 73:18-74:14, attached as Exh. H to SJPC Motion for Summary
Judgment; Declaration of Leonard E. Van Houten, P.E. at ¶ 11,
attached as Exh. F to SJPC Motion for Summary Judgment.
To constitute an abnormally dangerous activity, New Jersey
requires the risk of harm to be "extraordinary." T& E Indus.,
123 N.J. at 386-87 ("Despite the social utility of the activity,
[the abnormally dangerous activity] doctrine imposes liability on
those who, for their own benefit, introduce an extraordinary risk
of harm into the community."). The Court does not find that SJPC
has demonstrated that the risk of harm imposed on the community
by Weeks Marine is "extraordinary," in contrast, for example, to
the danger posed by oil spills or the transporting of hazardous
Indeed, Corcoran, a Weeks Marine employee with significant pile
driving experience, testified that he was not aware of a single
instance where a building was damaged by Weeks Marine's pile
driving, or in any instance within his realm of knowledge. SJPC
Exh. H at 74:167-5:18. The main risk of pile driving identified
by Corcoran was that those engaged in the activity "lose fingers
and arms." Id. at 71:19-20. Van Houten, a professional engineer
serving as an expert for SJPC, compared the potential for
collateral damage from pile driving "albeit in varying degrees,
to the effects of earthquakes, heavy wheeled traffic, blasting,
mining and certain heavy industrial operations involving drop
hammers and eccentric rotating machinery." Van Houten Declaration
at ¶ 12, Exh. F to SJPC's Motion for Summary Judgment. Although
the Court may find that certain of these activities create an
extraordinary risk of harm, Van Houten fails to discuss whether
the pile driving activities conducted by Weeks Marine were more
akin to "heavy wheeled traffic," which the Court would not find
constitutes an extraordinary risk of harm, or to some of the
other activities listed, which the Court may find constitute an extraordinary risk of harm. SJPC therefore fails to demonstrate
that this factor supports a finding that New Jersey would
consider pile driving abnormally dangerous.
(b) Likelihood that the harm that results from the activity
will be great
SJPC argues that Weeks Marine's pile driving resulted in the
complete loss of Beckett Street Marine Terminal, which required
extensive demolition and reconstruction costing millions of
dollars. On that basis alone, SJPC asserts that the likelihood
that harm would result from Weeks Marine's pile driving activity
was great. The Court finds that such a conclusory allegation
falls short of satisfying the inquiry required to prove
Restatement factor (b).
To prove Restatement factor (b), SJPC must show that the
method of pile driving used by Weeks Marine was likely to produce
significant harm, not simply that SJPC suffered significant harm
as an alleged result of Weeks Marine's pile driving activities.
See, e.g., Biniek v. Exxon Mobil Corp.,
358 N.J. Super. 587, 602 (Law Div. 2002) (analyzing factor (b) with respect to
whether there is a significant likelihood of harm from "gasoline
storage or transportation," rather than the alleged harm suffered
by plaintiff). SJPC did not submit evidence with respect to the
likelihood of harm from Weeks Marine's pile driving activity.
Rather, SJPC merely asserts that because damage to the Beckett
Street Marine Terminal occurred during the time Weeks Marine was
engaged in pile driving activity, such harm was necessarily the
likely result of that activity. That allegation, without more,
cannot satisfy the inquiry required to prove Restatement factor
(c) Inability to eliminate the risk by the exercise of
Courts analyzing Restatement § 520 have held that although no
one factor is determinative, factor (c) is at the heart of an
abnormally dangerous determination. See, e.g., Anderson v. Farmland Indus., Inc., 136 F. Supp.2d 1192, 1199
(D. Kan. 2001); Fletcher v. Conoco Pipe Line Co.,
129 F. Supp. 2d 1255 (W.D. Mo. 2001); Toledo v. Van Waters & Rogers, Inc.,
92 F. Supp.2d 44, 56 (D.R.I. 2000); Chaveriat, 1994 WL 583598,
at *5. "`If an activity can be performed safely with ordinary
care, negligence serves both as an adequate remedy for injury and
a sufficient deterrent to carelessness' and the imposition of
strict liability is unnecessary." Fletcher,
129 F. Supp. 2d at 1261 (quoting Chaveriat, at *5).
SJPC argues that because the factors influencing the danger
posed by vibrations cannot be controlled by the pile driver, it
is impossible to eliminate the risk posed by pile driving.
However, the record supports, and the Court finds, that pile
driving can be carried on safely by the exercise of due care on
the part of Weeks Marine. SJPC's claim includes a negligence
count in addition to a strict liability count. SJPC Exh. A at ¶¶
48-51. Although SJPC may plead in the alternative, SJPC's
Affidavit of Merit submitted by Francis Xavier McGeady pursuant
to N.J.S.A. 2A:53A-27, strongly supports the conclusion that the
risk presented here can be eliminated through the exercise of due
care. In McGeady's professional opinion,
there exists a reasonably probability that the care,
skill or knowledge exercised or exhibited in the
practice, work, or performance of Weeks Marine, Inc.
that is the subject of the complaint, fell outside
occupational practice requirements of construction
engineers by failing to carefully and thoroughly
monitor the condition of the Beckett Street Terminal
prior to and during the construction of the Memorial
Pier, and by failing to use monitoring procedures and
techniques made available by the engineering
community for this venture.
Francis Xavier McGeady Affidavit of Merit, attached as Exh. 2 to
Weeks Marine's Motion to Dismiss at ¶ 17. McGeady's opinion
suggests that the harm in this case could have been avoided by
the use of due care and thus weighs against a finding that no
exercise of reasonable care on the part of Weeks Marine could
have eliminated the risk. SJPC's position is similarly belied by
Plaintiff's expert, Van Houten, who also couches his conclusion
in terms of due care. In the same paragraph that Van Houten refers to
vibrations and shock waves not being controllable by the operator
in the field, he opines that "[s]pecial precautions in
engineering, design, planning, and monitoring of construction are
warranted but not always effective." See Van Houten Declaration ¶
13, Exh. F to SJPC's Motion for Summary Judgment.
In addition, SJPC's argument that Weeks Marine's pile driving
produces uncontrollable vibrations, and therefore is similar to
the blasting held to be ultrahazardous in Berg*fn5 has
been rejected by other courts. In In re Chicago Flood Litig.,
the Supreme Court of Illinois specifically rejected plaintiffs'
contention that the presence of uncontrollable vibrations means
that an activity cannot be performed safely through the exercise
of ordinary care.
In our opinion, the common factor, vibrations, is not
sufficient to place the case under consideration in
the same category as blasting cases. Machines, motors
and instrumentalities which cause vibrations are in
such common use in present-day activities and the
probability of damage from their use is so variable
that the mere fact that all of them cause vibrations
is not a reasonable basis for common classification
for liability. There are many cases involving damage
by vibrations set in motion by instrumentalities
other than explosives, e.g., pile drivers, drills,
pavement breakers, etc. The overwhelming majority
require allegation and proof of negligence.
680 N.E.2d 280 (citing Trull v. Carolina-Virginia Well Co.,
264 N.C. 687
(1965)) (internal citations omitted). The Court agrees,
and finds that to the contrary, SJPC's own professionals have
suggested that the exercise of care by Weeks Marine could have
prevented the harm that befell SJPC.
(d) Extent to which the activity is not a matter of common
"An activity is a matter of common usage if it is customarily
carried on by the great mass of mankind or by many people in the
community. It does not cease to be so because it is carried on for a purpose peculiar to the individual who engages in it."
Restatement of Torts § 520, comment i. See also Amland,
711 F. Supp. at 807. "The usual dangers resulting from an
activity that is one of common usage are not regarded as
abnormal, even though a serious risk of harm cannot be eliminated
by all reasonable care." Restatement of Torts § 520, comment
i. While courts have held that the number of people engaged in
a given activity typically represents the "deciding
characteristic" of whether a particular usage is common, In re
Chicago Flood Litig., 680 N.E.2d at 281, the scope of the
applicable "community" of users to which Restatement comment
i refers has not been uniformly interpreted. Many courts have
interpreted "community" broadly and held that only those
activities widely engaged in constitute matters of common
usage.*fn6 Other courts have interpreted the scope more
narrowly to encompass a smaller, focused "community."*fn7
This Court recognizes that pile driving is a common activity
along the shores of the Delaware River,*fn8 but concludes
the appropriate analysis is not whether it is a commonplace activity in marine construction, but rather, whether it is a
common activity among average citizens. See Restatement of
Torts § 520, comment i (contrasting the use of an average
automobile with the use of a tank or other motor vehicle of
extraordinary size and weight and noting that only the former is
commonly used in the community; and noting that blasting, the use
of explosives, and activity on oil lands are all necessary and
proper means of conducting the relevant activities, but are not
commonly carried out by a large percentage of the population).
Although there are no allegations in SJPC's claim regarding the
relative numbers of people engaged in pile driving, the Court is
confident that few lay persons engage in pile driving activities.
Accordingly, this factor weighs in favor of SJPC.
(e) Inappropriateness of the activity to the place where it is
SJPC does not contest that pile driving in a riverbed to
construct waterfront facilities is the only means of installing
the required structural supports, and thus is an appropriate
activity to conduct in the river. See also Deposition of
Richard Long, Chief Operating Officer of Hudson, attached as Exh.
4 to Weeks Marine's Opposition to Streit's Motion for Summary
Judgment (testifying that pile driving is "the only way I know
that you build a pier or rehabilitate a pier"). In addition,
although the testimony of the engineer cited above does not
support a finding that pile driving is a matter of common usage
it does support a finding that Weeks Marine's pile driving was a
site-appropriate activity. (f) Extent to which its value to the community is outweighed
by its dangerous attributes
It is similarly undisputed that the construction of a permanent
mooring for the Battleship New Jersey, a floating museum and
venue for public events and memorials, is of significant value to
the region's efforts to revitalize the Camden waterfront. If
activities "can be carried on only in a particular place" and
they "are of sufficient value to the community, they may not be
regarded as abnormally dangerous where they are so located, since
the only place where the activity can be carried on must
necessarily be regarded as an appropriate one." Restatement §
520, comment j. Here, pile driving in the Delaware River was
the only manner in which this activity of value to the community
could be accomplished. Although SJPC argues that Weeks Marine's
pile driving was inappropriate because of its proximity to the
Beckett Street Marine Terminal, a structure built in 1930 that
was sensitive to the type of vibration produced by pile driving
activities, the Court does not find that this potential for
danger outweighs the above considerations and thus does not
require a finding that the pile driving activity was
abnormallydangerous. Furthermore, SJPC's position is belied by
the fact that it hired Streit to conduct precisely the same
activity pile driving to repair the Beckett Street Terminal.
W.H. Street Crossclaim at ¶¶ 4, 7-8.
The Court therefore finds that, on balance, consideration of
the evidence pursuant to the Restatement factors does not lead
to the conclusion that the Supreme Court of New Jersey would find
that Weeks Marine's pile driving activity was abnormally
dangerous, and that strict liability should therefore be imposed.
As such, SJPC does not have a state law claim for strict
liability with which to supplement the general maritime law;
there is no state law to preempt. SJPC's strict liability claim shall therefore be dismissed, and Weeks
Marine's Third Party claim for contribution or indemnity from
Streit based upon strict liability also shall be
C.W.H. Streit's Motion for Summary Judgment on the Negligence
In addition to joining Weeks Marine's Motion to Dismiss the
strict liability claim, and filing its own Motion for Summary
Judgment as to that claim, Streit also has moved for summary
judgment on the negligence claims on the grounds that there is no
expert testimony regarding negligence or causation as to the
activities of Streit, and that Streit cannot be responsible for
damage to the pier because it followed the specifications and
instructions of the owner and the owner's engineer. Factual
discovery in this matter was to be completed by September 1,
2004, and expert reports are scheduled to be served by October 3,
2005. In re Weeks Marine, Inc., No. 04-494 (D.N.J. Feb. 3,
2005) (second amended scheduling order). As Streit acknowledges
in its motion, the testimony of experts may be essential to
questions of liability and causation, and the Court finds that
the parties opposing Streit's motion should be entitled to
consult with their experts before ruling on this motion. The
Court finds that it is premature to grant summary judgment on the
negligence claims at this time, and denies Streit's Motion
For the reasons discussed herein, SJPC's strict liability claim
shall be dismissed, and Weeks Marine's third party claim against
Streit based upon strict liability shall also be dismissed.
SJPC's Cross-Motion for Summary Judgment shall be denied. An
appropriate order will follow.
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