Summary
granting employer summary judgment when plaintiff did not produce evidence that issued safety equipment was inadequate
Summary of this case from Grant v. Entm't Cruises, Inc.Opinion
Civil Action No. 02-3599(JWB).
September 30, 2004
CAPPIELLO HOFMAN KATZ, By: Elizabeth Blair Starkey, Esquire, Newark, New Jersey, (Attorneys for Plaintiff).
BETANCOURT, VAN HEMMEN, GRECO KENYON, By: Jeanne-Marie Van Hemmen, Esquire, Red Bank, New Jersey, (Attorneys for Defendants).
OPINION
This matter comes before the Court on defendants' motion for summary judgment. Defendants (collectively "Transoceanic" or "defendants") are Tycom Inc., Transoceanic Cable Ship Co., Inc., Cable Ship GLOBAL LINK L.P., and the M/V GLOBAL LINK, in rem. Transoceanic operates a fleet of ships which lay and maintain fiberoptic cable on the ocean floor. The GLOBAL LINK is one of the vessels operated by Transoceanic. Plaintiff, Orlando Reveron, is a member of the Merchant Marine who was working aboard the GLOBAL LINK when the injury which is the subject of this litigation occurred. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1333 and 46 U.S.C. § 688.
FACTS
Plaintiff began working for the Merchant Marine in 1991. Pl. Certification in Opp'n to Def. Mot. for Summ. J. ("Pl. Certification"). From 1981 to 1985, plaintiff served in the United States Coast Guard where he completed courses in engineering, firefighting and safety. Pl. Certification ¶ 3. After joining the Merchant Marine, plaintiff attended a four month training program at the Seafarers International School and learned about firefighting, boilers, basic first aid and vessel safety procedures including fire prevention. Id. at ¶ 2.
Plaintiff was employed as an oiler/mechanic utility ("OMU") aboard the defendants' vessel, the GLOBAL LINK, from October 2000 through December 17, 2000. Id. at ¶ 9; Def. Statement of Material Facts (Def. Facts") at 2. On December 11, 2000, plaintiff was ordered by First Assistant Engineer Gary Tyranski to manufacture five brackets out of a sheet of metal. Pl. Statement of Material Facts ("Pl. Facts") at 1; Def. Facts at 2. Upon his arrival at the machine shop, plaintiff checked the area and his person to ensure that there were no fire hazards. Pl. Facts at 2; Def. Facts at 2. Plaintiff was wearing all of the protective gear that was provided in the machine shop including welders' gloves, jacket and helmet. Id. Plaintiff was also wearing company-issued cotton coveralls. Id.
Plaintiff was ordered to use a plasma cutter to cut the metal because it made a cleaner cut. Pl. Facts at 2. While working on the third bracket, plaintiff felt heat on his leg and observed a "green glow" through his goggles. Id.; Def. Facts at 2. After lifting the visor of his helmet, plaintiff saw that his right pant leg was on fire. Id. Plaintiff tried to extinguish the flames with his gloves, and when this proved to be unsuccessful, he began to run around. Pl. Facts at 3; Def. Facts at 2. Soon thereafter, plaintiff used the hose from the sink behind his workstation and extinguished the flames. Id.
Plaintiff drove to the Johns Hopkins clinic in Baltimore, Maryland for medical treatment. Def Facts at 2. There, plaintiff was diagnosed with a second degree burn on the lower part of his right leg. Id. Plaintiff was declared not fit for duty for one day and he returned to work on December 13th, 2000. Id. at 2-3. On the afternoon of December 15th, plaintiff returned to the clinic after experiencing swelling and pain in his leg. Id. at 3. The clinic declared plaintiff not fit for duty and referred him to the emergency room. Id. On the evening of December 17th, plaintiff reported to the Lincoln Hospital Emergency Room in New York. Id. He was admitted to the hospital and was treated for an infection that developed at the site of the burn on his right leg. Id. Plaintiff remained at the hospital for three days. Id.
Plaintiff filed the instant action on July 26, 2002 to recover damages for negligence pursuant to the Jones Act, 46 U.S.C. app. § 688, and for unseaworthiness of the GLOBAL LINK under general maritime law. Compl. ¶¶ 14-16; Pl. Opp'n Br. at 2. The Complaint also contained a second cause of action, for maintenance, cure and wages. Compl. ¶¶ 18-21. The parties have settled the maintenance and cure claims and have stipulated to the dismissal of plaintiff's second cause of action. Plaintiff's negligence and unseaworthiness claims are the subject of defendants' instant motion for summary judgment.
A Stipulation of Dismissal as to that second cause of action was entered herein on April 26, 2004.
After oral argument on February 23, 2004, this Court reserved decision on the present motion. While the motion was sub judice, the parties proceeded to court-annexed arbitration (pursuant to L. Civ. R. 201.1) on or about April 30, 2004. With the agreement of all, this Court delayed consideration of the merits of the present motion, pending that arbitration. (See Bissell, J., letter, March 8, 2004). After the arbitrator's decision, several defendants, on May 28, 2004, filed a demand for a trial de novo; accordingly, this action was not resolved by arbitration and the Court will now address the summary judgment motion.
DISCUSSION
I. Standard for Summary Judgment
Federal Rule of Civil Procedure 56(c) provides that summary judgment should be granted "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." Fed.R.Civ.P. 56(c); see also Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir. 1987) (en banc), cert. dismissed, 483 U.S. 1052 (1987). In deciding a motion for summary judgment, a court must view the facts in the light most favorable to the nonmoving party and must resolve any reasonable doubt as to the existence of a genuine issue of fact against the moving party. Continental Ins. Co. v. Bodie, 692 F.2d 436, 438 (3d Cir. 1982). The moving party has the burden of establishing that there are no genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986).
The Supreme Court has stated that, in applying the criteria for granting summary judgment:
the judge must ask . . . not whether . . . the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented. The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party]. The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the [non-movant] is entitled to a verdict.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). A fact is "material" only if it will affect the outcome of a lawsuit under the applicable law, and a dispute over a material fact is "genuine" if the evidence is such that a reasonable fact-finder could return a verdict for the nonmoving party. Id. Unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party, there exists no trial issue. Id. at 249. "If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." Id. (citing Dombrowski v. Eastland, 387 U.S. 82, 87 (1967) (per curiam); First Nat'l Bank of Az. v. Cities Service Co., 391 U.S. 253, 290 (1968) (internal citations omitted)).
II. Plaintiff's Jones Act Claim
Any seaman who suffers injury in the course of employment due to the negligence of his employer, the vessel owner or crew members can bring a claim under the Jones Act. Lewis v. Lewis Clark Marine, Inc., 531 U.S. 438, 441 (2001). The Jones Act provides that "any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury." 46 U.S.C. app. § 688(a). The elements of a Jones Act negligence claim are: duty, breach of duty, notice and causation. A seaman can recover under the Jones Act if it can be determined that his employer's negligence is the cause, either in whole or in part, of his injury. Brogan v. United New York Sandy Hook Pilots' Ass'n, Inc., 213 F.Supp.2d 432, 435 (D.N.J. 2002) (citing Ribitzki v. Canmar Reading Bates, Ltd., 111 F.3d 658, 662 (9th Cir. 1997).
On the surface, it appears that the Jones Act negligence standard contains the same elements as a routine negligence claim. However, the standard of proof for causation is relaxed in negligence claims brought under the Jones Act. "Causation 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) (quoting Rogers v. Mo. Pacific R.R. Co., 352 U.S. 500, 506 (1957) (internal citations omitted)). As in Brogan, there is no dispute in the instant case that plaintiff was employed by defendants at the time the events at issue occurred. Thus, the Court can proceed to its analysis of plaintiff's Jones Act negligence claim.
Plaintiff asserts that his certification and deposition testimony raise significant allegations of negligence on the part of defendants. These allegations are based on his personal experience and knowledge of custom and practice in the industry. Plaintiff alleges that defendants deviated from the generally accepted custom and practice of the industry and failed to (1) assign a fire watch to plaintiff's welding and cutting assignment, (2) provide protective gear such as chaps, aprons and fire retardant coveralls and (3) provide training, instruction and supervision to plaintiff on using the plasma cutter. Pl. Opp'n at 7-11. Plaintiff maintains that these allegations of failure to conform to industry standard create a genuine issue of material fact as to defendants' negligence.
Plaintiff's Testimony Relating to Industry Standards and Custom
In support of its motion for summary judgment, defendants contend that no genuine issue of material fact exists because plaintiff's own opinion testimony is not enough to satisfy his burden. Moreover, defendants aver that plaintiff's proposed opinion testimony is not admissible as a matter of law. Def. ReBr. at 3. Federal Rule of Evidence 701 provides the framework for opinion testimony offered by lay witnesses. It states:
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
The Court will analyze in turn the impact of plaintiff's testimony on each of his allegations of defendants' negligence.
A. Fire Watch
Plaintiff certifies that it is the customary and usual practice on vessels to assign a fire watch to a welding job. Pl. Certification ¶ 7. Plaintiff asserts that he asked for a fire watch for each welding assignment he was given, including the one which is the basis for the instant action. Id. ¶ 12. According to plaintiff "on the merchant ships on which [he] was employed, the fire watch usually is an unlicensed member of the engine department. [The member's] job is to stand by with a fire extinguisher in case sparks generated in the welding or metal cutting ignite a fire. Based on my experience and training, the assignment of a fire watch is customary safety practice followed in the maritime industry when welding or cutting takes place aboard a vessel." Id. at ¶ 7. Furthermore plaintiff declares that "it was customary for the ship's engineer, when there was welding to be done, to assign a fire watch." Id. at ¶ 12. Plaintiff recalls four welding jobs that he performed during his tour on the GLOBAL LINK between October and December 2000. The record reflects that a fire watch was assigned to the plaintiff for the entirety of two of the jobs and for some portions of the other two jobs. Id. at ¶ 14. At his deposition however, plaintiff stated the following with respect to fire watches, "[s]ometimes they would give me a fire watch, sometimes they wouldn't. Depending on where I was welding outside of the engine room, they would give me a fire watch, but if it was in the machine shop, they wouldn't give me the fire watch. They would say don't worry about it, just . . . you know, take care of yourself." Pl. Dep. Tr. at 40, lines 8-15.
Defendants aver that plaintiff is unable to demonstrate that his proposed testimony regarding the need for a fire watch is rationally based on his perception. The first requirement of Rule 701, that a lay opinion be rationally based on the witness' perception, requires that the witness have firsthand knowledge of the factual predicates that form the basis for the opinion.Gov't of the Virgin Islands v. Knight, 989 F.2d 619, 629 (3d Cir. 1993) (citing to Fed.R.Evid. 701(a) advisory committee's note). Defendant argues that plaintiff's opinion about the industry standard is not rationally based on his perception but rather is based on speculation, hearsay and inferences he has drawn from his view of shipboard operations. Def. Reply Br. at 4.
Plaintiff claims to have gained his knowledge about fire watches from the fire fighting training he received while in the United States Coast Guard and from the assignments he received onboard defendants' and other ships. Plaintiff testified that he has welded or engaged in hot work approximately eighteen times while working for defendant: six times while onboard the CHARLIE BROWN and twelve times while onboard the GLOBAL LINK. Pl. Dep. Tr., pp. 40 47. Plaintiff also claims that he observed engineers welding on other ships and would ask them questions.Id. at pp. 46 112-113. Defendants argue that when asked to amplify these observations, plaintiff was not able to identify a particular ship or a particular engineer from whom he had gained knowledge about welding or other hot work procedures. Plaintiff merely responded that on "[e]very ship I've been on, all the engineers weld. I've seen them from time to time, and I would ask questions." Id. at p. 113, lines 5-13.
Defendants maintain that the fact that plaintiff took a firefighting course and was assigned fire watch duty on occasion while in the Merchant Marine does not rationally support his opinion that fire watches are mandatory under all circumstances of shipboard welding and that the failure to assign one amounts to a breach of an industry standard. Def. Reply Br. at 5. Defendants emphasize that plaintiff's opinion that it was the industry custom and practice to always post a fire watch is not rationally supported by his own testimony. Defendants argue that at most, plaintiff's testimony establishes that fire watches are warranted under some circumstances. Id.
Plaintiff suggests that defendants breached their duty of care by failing to follow the custom in the industry however his argument contains nothing more than vague allegations. Plaintiff's testimony cannot serve as a sufficient foundation because as defendants argue, it is inadmissible lay opinion. It hinges on the operation and the daily custom in the industry. Plaintiff's testimony does not advance the objective of Rule 701 in that it does not put the trier of fact in possession of an accurate reproduction of the event. See Asplundh Mfg. Div. v. Benton Harbor Eng'g, 57 F.3d 1190, 1196 (3d Cir. 1995). Plaintiff does not advance an accurate account of the standard and custom in the industry as it pertains to welding safety and his deposition testimony and certification are evidence of such.
In opposition to this summary judgment motion, plaintiff relies on White v. U.S., 400 F.2d 74 (4th Cir. 1968), for the suggestion that the failure to assign a fire watch to a seaman involved in a welding operation is evidence of negligence. Pl. Opp'n at 7. However, White is distinguishable from the instant case because in White, the plaintiff introduced evidence that: (1) the fire may have resulted from oil in the bilge becoming ignited, (2) the defendant assumed the duty of providing a fire watch and there may have been an insufficient fire watch or one lacking proper equipment and (3) plaintiff's pants may have been oil soaked because he was not afforded the opportunity to change between completing tasks on the vessel. White, at 76. Conversely, in the case at bar, plaintiff has proffered no evidence other than his own testimony of the custom in the industry regarding a need for a fire watch. In upholding the district court's grant of summary judgment, the Supreme Court inFirst Nat'l Bank of Az v. Cities Service Co., 391 U.S. 253, 290 (1968) stated "[i]n the face of the defendant's properly supported motion for summary judgment, the plaintiff could not rest on his allegations of a conspiracy to get to a jury without "any significant probative evidence tending to support the complaint." Here, as in Cities Service, the plaintiff relies on vague allegations and fails to offer any probative evidence to support those allegations.
Defendants also argue that plaintiff's opinion regarding the industry custom and practice for posting fire watches violates Federal Rule of Evidence 701(c), which excludes lay opinion testimony that is based on scientific or other specialized knowledge. Def. Reply Br. at 6. The American National Standard Institute ("ANSI") and the American Welding Society have developed standards for safety in welding. Fire watches are not warranted in all circumstances and the document Safety in Welding, Cutting and Allied Processes ("SWCP") contains regulations which address those circumstances under which fire watches are necessary. Safety in Welding, Cutting, and Allied Processes; ANSI Z49.1 § E6 (1999). Another document issued by those entities is the Standard for Fire Prevention During Welding Cutting and Other Hot Work ("SFPW"). Gary Tyranski, the chief engineer onboard the GLOBAL LINK, was in charge of its engine department on the day of plaintiff's accident. Decl. Of Gary Tyranski ¶ 1. Mr. Tyranski stated in his declaration that the standards contained in the SWCP and the SFPW were taught to him during his course work in welding and cutting processes and he has relied on those standards for guidance in welding and other hot work procedures. Id. ¶ 16.
Section 5.4 is the portion of the SFPW which directly addresses the circumstances under which fire watches are necessary. Standard for Fire Prevention During Welding Cutting and Other Hot Work; NFPA 51B, § 5.4 (2003). Onboard the GLOBAL LINK, fire watches were assigned for hot work conducted outside the machine shop and were not assigned for hot work conducted inside the machine shop. Mr. Tyranski has declared that this practice was more conservative than the requirements of the SFPW.Id. at 4-5.
Section 5.4.1 states that "a fire watch shall be required by the PAI [permit authorizing individual] when hot work is performed in a location where other than a minor fire might develop or where the following conditions exist: (1) [c]ombustible materials in building construction or contents are closer than 11 m (35 ft) to the point of operation, (2)[c]ombustible materials are more than 11 m (35 ft) away from the point of operation but are easily ignited by sparks, (3) [w]all or floor openings within an 11 m (35 ft) radius expose combustible materials in adjacent areas, including concealed spaces in walls or floors, (4) [c]ombustible materials are adjacent to the opposite side of partitions, walls, ceilings, or roofs and are likely to be ignited."
Defendants argue that the industry standard regarding the posting of a fire watch is a technical matter requiring specialized knowledge. Def. Reply Br. at 7. To that extent, defendants aver that anyone tendering an opinion on the necessity to post a fire watch during welding or hot work in the marine environment would have to be familiar with these technical regulations. Id. Thus, defendants aver that because plaintiff's proposed lay opinion testimony about the industry standard focuses on the technical interpretation of the welding standards, his testimony is inadmissible. Id.
The evidence in the record indicates that it was not the custom of the Merchant Marine to use a fire watch in the situation in which plaintiff was injured. Plaintiff's testimony, even if it was admissible, does not refute this point. As plaintiff admitted in his deposition, "depending on where I was welding outside of the engine room, they would give me a fire watch, but if it was in the machine shop, they wouldn't give me the fire watch." Pl. Dep. Tr. at 40, lines 8-15. Plaintiff's testimony is consistent with the information found in the SFPW and the declaration of Mr. Tyranski regarding the use of fire watches. Plaintiff has failed to proffer sufficient evidence to demonstrate that a genuine issue of material fact exists. See Anderson, at 249. This Court finds that plaintiff's testimony is not admissible lay opinion testimony under Rule 701 however even if the Court were to consider plaintiff's testimony, it advances no disputed facts with respect to a fire watch from which a trial issue remains.
B. Adequate Protective Clothing
Plaintiff also suggests that protective clothing, such as aprons and chaps, should have been provided to him prior to his welding assignment. Pl. Certification ¶ 32. In his certification to the Court, plaintiff asserts that protective clothing that gives full body and leg protection should have been provided.Id. at 35. Plaintiff offers that on other vessels on which he has served, the welders are provided with an apron which covers the welder's legs. Id. However, at his deposition, plaintiff acknowledged that he had been provided with a welders helmet, gloves, a face shield, goggles, and a jacket, all of the required personal protective equipment. Pl. Dep. Tr. pp. 229-230. Plaintiff asserts that aprons and chaps are inexpensive and readily obtainable and to support this thesis, plaintiff attached price quotes from an online Welding Depot catalog to his opposition brief. Pl. Opp'n at 8-9 Ex. 3-4.
The information cited by plaintiff is inapposite. Plaintiff fails to produce any evidence that defendants did not provide plaintiff with the proper personal protective equipment and his vague allegations to the contrary are not sufficient to withstand defendants' motion for summary judgment. See Anderson, at 248. It is undisputed that defendants provided plaintiff with the safety equipment that he understood to be necessary for the task. The fact that plaintiff alleges that he has observed "other welders on other vessels" with protective leg gear does not amount to sufficient evidence to determine the standard in the industry. Plaintiff's proffered evidence with respect to the protective gear is "merely colorable" and "not significantly probative" and therefore cannot defeat defendants' motion for summary judgment. See Anderson, at 249.
C. Instruction and Supervision
Plaintiff also suggests that he was not properly instructed in the use of the plasma cutter and that he should have received detailed instruction before using the machine. Pl. Certification ¶ 37. Moreover, plaintiff asserts that had an engineer been assigned to supervise him during the job, he could have extinguished the flames before plaintiff suffered any burns.Id. There are no facts in evidence to support either of plaintiff's allegations under this negligence theory. Once again, plaintiff tenders vague allegations without proffering sufficient evidence to support them.
Plaintiff cites a Fifth Circuit decision to advance his theory that failure to provide adequate instruction and supervision has been held to constitute negligence on the part of the employer. See Davis v. Parkhill-Goodloe Co., 302 F.2d 489 (5th Cir. 1962). However, the record in Davis was replete with evidence and testimony from numerous witnesses that supported the plaintiff's thesis. See Davis, at 492. Here, the only evidence presented to the Court was plaintiff's blanket assertion that he "should have received detailed instruction before using the machine and been supervised during its use" and that "had an engineer been assigned . . . he would also have been present to extinguish the flames." Pl. Certification ¶ 37. Plaintiff offers no supporting evidentiary material but simply proffers his opinion about the accident. This is not sufficient evidence to withstand defendants' motion for summary judgment.
There are no disputed facts as to the details of the accident or the conduct of the plaintiff or defendants. As stated above, the only issue that plaintiff raises in defense to this motion is his belief that defendants were negligent by straying from the custom in the industry by not providing a fire watch, adequate protective gear or the proper supervision. As the Supreme Court stated in Anderson, "if the evidence is merely colorable or is not significantly probative, summary judgment may be granted."Anderson, at 249. Plaintiff has failed to supply this Court with substantial evidence to support his allegations and defendants have proven that there are no genuine issues of material fact. At the bottom line, we are left with little more than the occurrence of the incident itself; an insufficient basis to sustain plaintiff's claims. Therefore defendants' motion for summary judgment on plaintiff's Jones Act negligence claim must be granted.
III. Plaintiff's Claim that the GLOBAL LINK was Unseaworthy
Unseaworthiness is defined as the furnishing of a vessel that is not fit for the service intended. The scope of unseaworthiness is by no means limited and in Usner v. Juckenbach Overseas Corp., 400 U.S. 494, 499 (1971), the Supreme Court provided examples of a number of circumstances from which a vessel's condition of unseaworthiness might arise. The Court noted that for any of the following reasons a vessel might not be reasonably fit for her intended service: "[h]er gear might be defective, her appurtenances in disrepair, her crew unfit, [t]he number of men assigned to perform a shipboard task might be insufficient or [t]he method of loading her cargo or the manner of its stowage might be improper." Usner, at 499 (citing Mahnich v. Southern S.S. Co., 321 U.S. 96 (1944); Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946); Boudoin v. Lykes Bros. S.S. Co., 348 U.S. 336 (1955); Waldron v. Moore-McCormack Lines, 386 U.S. 724 (1967); A. G. Stevedores v. Ellerman Lines, 369 U.S. 355 (1962); and Gutierrez v. Waterman S.S. Corp., 373 U.S. 206 (1963) (internal citations omitted)).
Plaintiff's unseaworthiness claim is based upon the same grounds as his Jones Act negligence claim. Plaintiff alleges that the GLOBAL LINK was unseaworthy because seamanship and custom and practice in the industry and on the GLOBAL LINK mandate the assignment of a fire watch, the responsibility to provide adequate protective gear, and the duty to train, instruct and supervise employees. Pl. Opp'n at 10-11. For the reasons expressed in the Jones Act analysis supra, this Court finds that the plaintiff has not provided the Court with sufficient evidence to support any of his claims and instead attempts to rely on vague allegations. In Anderson, the Supreme Court noted that the proper inquiry when deciding a motion for summary judgment is "whether a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Anderson, at 252. "The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party]." Id. Plaintiff has not produced evidence that is sufficient to support his unseaworthiness claim. The evidence on the record does not present a genuine issue of material fact and therefore defendants' motion for summary judgment on this claim must be granted.