The opinion of the court was delivered by: Walls, Senior District Judge
Defendants IMTT-Bayonne ("IMTT") and Jeffrey Jackson move for summary judgment on the negligence claims of plaintiff Bradley Flint. IMTT also moves to strike portions of the certification of plaintiff's expert, Donald T. Aull. Defendant Langer Transport Corp. ("Langer") moves for summary judgment on all cross-claims. Pursuant to Rule 78 of the Federal Rules of Civil Procedure, the motions are decided without oral argument. IMTT's motion for summary judgment is granted. IMTT's motion to strike is denied as moot. Jeffrey Jackson's motion for summary judgment is granted. Langer's motion is denied as moot.
The following facts, material to these motions, are undisputed by the parties. The factual background first forms around defendant Jeffrey Jackson. Jackson worked as a truck driver for defendant Langer. Langer, a motor carrier, transports liquid chemicals in tanker trailers for various customers, including Dow Chemical Company ("Dow"). (Df. Ex. F, Langer Dep.) When Dow needs a load to be transported, it sends a bid proposal to Langer. (Df. Ex. G, Katz Dep.) The bid proposal lists the type of product to be transported, the pick-up location of the load, and its destination. (Id.) If Langer accepts the bid, Langer designates the appropriate truck, aluminum or stainless steel, and assigns a driver to transport the load. (Id.) The load involved in this case resulted from a bid to transport 45,000 pounds of Dow's chemical Versene 100 XL ("Versene") from the IMTT facility in Bayonne, New Jersey, to Ecolab Ltd. ("Ecolab") in Mississauga, Ontario, Canada. (Df. Ex. I, Butler Dep.) Versene 100 XL is a chemical acid corrosive in the presence of aluminum; it must be transported in a stainless steel trailer.
On July 6, 2004, Langer issued a "Truckers Request Loading Form" to Jackson, in order for him to pick up tanker trailer #749 from the Langer facility. (Pl. Ex. H, Truckers Request Loading Form.) Tanker trailer #749 was an aluminum trailer. That day, Jackson attached his truck to the trailer and drove to the IMTT facility to pick up the load. Once there, plaintiff asserts that Jackson went through a series of checks by IMTT employees which failed to recognize that Jackson was driving an aluminum trailer, although loaded with the corrosive Versene. Finally, Jackson took a sample of the loaded Versene to the IMTT lab, signed the IMTT Tank Truck Loading Report, and left.
Jackson arrived at Ecolab in Canada on July 7, 2004. Ecolab required a test sample before it would unload the product into its storage facilities. (Pl. Ex. I, Jackson Dep.) The Ecolab technician tested the Versene in Jackson's trailer and determined that the product was contaminated. A second test resulted in the same conclusion. Ecolab rejected the load. (Id.) Jackson drove to a truck stop, inspected the trailer and noticed some dampness and discoloration on the back rib section. (Id.) He notified Langer of the situation, and was advised to cross the border and return to the United States. He received a fax from Langer with the necessary travel documents to permit him to cross the border. (Id.)
Plaintiff Bradley Flint now enters the scene. Jackson was informed by Langer that Flint, who had recently finished carrying a load for Langer in a stainless steel trailer, was located at the same truck stop as Jackson. (Id.) The original plan advanced by Langer was to transload the Versene from Jackson's trailer into Flint's trailer at a tanker trailer cleaning facility in Buffalo, New York. (Pl. Ex. N, Flint Dep.) In their respective trucks, Jackson and Flint crossed the Canadian border into the United States. Upon arrival at the Buffalo cleaning facility, Jackson and Flint were told that Flint's trailer could not be cleaned because Flint had been carrying a marine bio-chemical and the facility was not equipped to clean it. (Id.) Jackson and Flint continued to drive toward Langer in Jersey City, New Jersey, when a Langer dispatcher instructed them to "try and find a place" to transfer the load into Flint's unclean trailer "before we have a bigger problem." (Df. Ex. D, Flint Dep.; Pl. Ex. I, Jackson Dep.) Jackson and Flint stopped at the Flying J truck stop in Penbrook, New York.
It was dark and raining when Jackson and Flint arrived at that truck stop. (Pl. Ex. N, Flint Dep.) They decided to eat dinner and wait out the rain before beginning the transfer. (Df. Ex. D, Flint Dep.) After finishing dinner, Jackson and Flint parked their trucks next to each other and began the transfer process. This required them to connect a hose from the top of Flint's tanker to Jackson's tanker so that the load could be pumped from one to the other. The tankers have portals on the bottom near the ground as well, but the appropriate fittings to conduct the transfer that way were not available. (Df. Ex. D, Flint Dep.)
Flint climbed the ladder on his tanker to the top, wearing rubber gloves issued by Langer. (Id.) Jackson, who was standing on the ground beside the trailer, began to pass a hose to Flint by pushing it up the side of the tanker. As Flint was reaching for the hose, his hand slipped out of his glove and he fell from the top of the tanker. (Pl. Ex. N, Flint Dep.) Flint came into contact with Jackson's trailer and fell to the ground. Jackson unhooked his tanker from his truck and drove Flint to the hospital. The following day, July 8, 2004, at the direction of Langer, Jackson drove Flint's trailer to be washed out. (Pl. Ex. I, Jackson Dep.) Then, with the assistance of his father, Jackson brought both tankers to his house and transferred the load from his own tanker into Flint's. Jackson then drove the load back to Langer in Jersey City, New Jersey.
Summary judgment is appropriate where the moving party establishes that "there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). A factual dispute between the parties will not defeat a motion for summary judgment unless it is both genuine and material. See Scott v. Harris, 550 U.S. 372, 380 (2007); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A factual dispute is genuine if a reasonable jury could return a verdict for the non-movant and it is material if, under the substantive law, it would affect the outcome of the suit. See Anderson, 477 U.S. at 248. The moving party must show that the non-moving party has failed to "set forth," by affidavits or otherwise, "specific facts showing that there is a genuine issue for trial." See Beard v. Banks, 548 U.S. 521, 529 (2006) (citing Fed. R. Civ. P. 56(e)).
Once the moving party has carried its burden under Rule 56, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts" in question. Scott, 550 U.S. at 380 (citing Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). At the summary judgment stage, the court's function is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue of fact for trial. See Anderson, 477 U.S. at 249. In so doing, the court must construe the facts and inferences in the light most favorable to the non-moving party. Curley v. Klem, 298 F.3d 271, 277 (3d Cir. 2002). To survive a motion for summary judgment, a non-movant must present more than a mere "scintilla of evidence" in his favor. ...