United States District Court, E.D. Pennsylvania
March 15, 2004.
RICHARD CARPENTER V. MOBILE DREDGING & PUMPING CO., Defendant /Third-Party Plaintiff V. COUNTY OF MONMOUTH, Third-Party Defendant
The opinion of the court was delivered by: JOHN FULLAM, Senior District Judge
MEMORANDUM AND ORDER
Plaintiff sued his employer, Mobile Dredging & Pumping Co., for
damages sustained in an on-the-job accident. Mobile then filed a
third-party complaint against the County of Monmouth New Jersey, and
plaintiff cross-claimed against the County.
The defendant Mobile was hired by the County to deepen the waters
surrounding a marina owned by the County. Plaintiff was a member of the
crew of the dredge which was sent to the site on March 30, 1999, to begin
the project. At about 3:00 a.m. on March 31, 1999, plaintiff and a
coworker received a telephone call at the motel where they were staying,
reporting that the dredge appeared to be sinking. When they arrived, they
discovered that the dredge was indeed beginning to sink, and determined
that it would be necessary to pump water out of the dredge, which was partially submerged and leaning away from the
bulkhead of the dock.
Not far away in the marina, the County of Monmouth had placed a pile of
boat-racks. As plaintiff was proceeding on foot to obtain tools needed to
commence the pumping operation, a pile of boat-racks fell over, striking
plaintiff and causing severe injuries.
Plaintiff's claims against his employer, Mobile Dredging & Pumping
Co., were predicated upon the employer's non-delegable duty to provide a
safe place for plaintiff to work. His claims against Monmouth County were
based upon the alleged negligence of the County in having improperly
stacked the boat-racks. After an eight-day trial, the jury returned a
verdict in favor of the plaintiff and against the defendant Mobile
Dredging & Pumping Co., but exonerated the County of Monmouth.
Plaintiff has filed a motion for judgment as a matter of law against the
County, or for a new trial against that entity. The defendant Mobile has
filed a motion for judgment as a matter of law or for a new trial.
I. Claims Against the County of Monmouth
In answers to special interrogatories, the jury found that the pile of
boat-racks constituted a dangerous condition on the County's property,
and was a proximate cause of plaintiff's injuries; that the County
violated OSHA standards; and, that County employees were negligent in the manner in which they stacked
the boat-rack parts.
There was ample evidence to support the jury's findings. This would
have resulted in a verdict in favor of plaintiff and against the County
of Monmouth but for the fact that the jury further found that the
County's actions and inactions were not "palpably unreasonable." That
finding precluded imposition of liability upon the County, under the New
Jersey Tort Claims Act, N.J.S.A. § 59:4-2(b).
Plaintiff now contends that it was error to submit that issue to the
jury, because there was no evidence that the stacking of the boat-racks
involved a high-level issue of discretion on the part of the County
officials. This argument reflects a misapprehension of the pertinent
statutory provisions. Section 59:2-3(c) of the Statute provides:
"A public entity is not liable for the exercise of
discretion in determining whether to seek or
whether to provide the resources necessary for the
purchase of equipment, deconstruction or
maintenance of facilities, the hiring of personnel
and, in general, the provision of adequate
Thus, in New Jersey a municipality enjoys absolute immunity against
liability for the policy decisions of high officials. But § 59:4-2 of
the Statute provides as follows:
"A public entity is liable for injury caused by a
condition of its property if the plaintiff
establishes that the property was in a dangerous
condition at the time of the injury, that the
injury was proximately caused by the dangerous
condition, that the dangerous condition created a reasonably foreseeable risk of
the kind of injury which was incurred and
that . . . (b) a public entity had actual or
constructive notice of the dangerous
condition . . . a sufficient time prior to the
injury to have taken measures to protect against
the dangerous condition [but]
nothing in this section shall be construed to
impose liability upon a public entity for a
dangerous condition of its public property if the
action the entity took to protect against the
condition or the failure to take such action was
not palpably unreasonable."
N.J.S.A. § 59:4-2
Plaintiff is correct in asserting that, on the evidence at trial, the
County did not enjoy absolute immunity for policy-type decisions, but it
is nevertheless clear that its negligence could not warrant imposition of
liability unless the plaintiff established that its actions were
"palpably unreasonable." See Waldorf v. Shuta, 896 F.2d 723
(3rd Cir. 1990).
Plaintiff does not argue that the jury's finding on this subject was
not warranted by the evidence. Plaintiff's motion for judgment against
the County of Monmouth will therefore be denied.
II. The Post-Trial Motions of Mobile Dredging &
It is firmly established that a vessel-owner has a non-delegable duty
to provide its employees with a safe place to work even when they are
required to go on premises of a third party, and that this responsibility
requires inspections of the work area in order to discover any potential
dangers. See Shenker v. Baltimore & Ohio R.R., 374 U.S. 1
defendant's argument, as I understand it, is that these principles are
not applicable to the facts of the present case, since the defendant did
not specifically order plaintiff to work in the area where the boat-racks
were piled and therefore had no reason to inspect the premises to
ascertain whether there were any dangerous conditions present. There can
be no doubt, however, that it was necessary for plaintiff to be where he
was in order to attend to the sinking barge, and that his injuries were
incurred in the course of his employment by the defendant barge-owner.
Moreover, there was testimony from a former supervisor employed by the
defendant, one Frank Talmo, that he did indeed perform job safety
inspections each time he visited the field crew at the marina, and that
he was not aware of any unsafe conditions. It was for the jury to decide
whether or not the defendant should have discovered the danger posed by
the stacked boat-racks. I do not believe there is any basis for
disturbing the jury's findings.
Defendant makes the further argument that the Court's charge on
causation was inadequate. Defendant does not point to any erroneous
language in the charge, but may perhaps be referring to a discussion
between the Court and counsel, early in the trial, reflecting some
uncertainty over the difference between the standard for submitting a
Jones-Act case to the jury ("negligence, however slight") and the proper
contents of the jury charge itself. I have read and reread the Court's charge, and
find no basis for the argument now advanced. The jury interrogatories
dealt in terms of proximate cause, and that concept was correctly defined
for the jury in the course of the charge. Defendant's motion for a new
trial must therefore be denied.
Alternatively, defendant contends that, since the jury assigned 60% of
the negligence to the County of Monmouth and 10% to plaintiff, and only
30% to Mobile Dredging, Mobile Dredging should only be liable for 30% of
the verdict because, under New Jersey law, a joint tortfeasor whose
negligence is less than 60% of the total, may only be required to pay its
proportionate share of the verdict. N.J. Stat. § 2A:15-5.3 (2003).
Unfortunately for the defendant, however, the New Jersey statute has no
pertinence to this case, which is governed by the F.E.L.A.,
45 U.S.C. § 51 et seq. Under the federal statute, joint tortfeasors
are liable both individually and jointly; there is no apportionment based
upon relative fault. Norfolk & Western Railway Co. v. Freeman
Ayers, 123 S.Ct. 1210 (2003).
For all of the foregoing reasons, the respective post-trial motions of
all parties will be denied.
An Order follows. ORDER
AND NOW, this 15 day of March 2004, IT IS ORDERED:
1. Plaintiff's motion for judgment as a matter of law and/or for a new
trial against the defendant County of Monmouth is DENIED.
2. The post-trial motion of the defendant Mobile Dredging & Pumping
Co. is DENIED.
3. The Order entered on June 23, 2003, is modified to reflect that
judgment is entered on the jury verdict in favor of the plaintiff Richard
Carpenter and against the defendant Mobile Dredging & Pumping Co. in
the sum of $2,220,651.00.
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