The opinion of the court was delivered by: DuBOIS, J.
This case arises out of the service of plaintiff, James G. Sloan, as a Qualified Member of the Engineer Department onboard the U.S.N.S. Mendonca, a ship owned by defendant, the United States of America. Plaintiff alleges that he suffered injuries caused by the negligence of defendant and the unseaworthiness of the vessel.
Presently before the Court is Defendant United States of America's Motion for Summary Judgment. For the reasons set forth below, defendant's motion is granted in part and denied in part. The Court grants defendant's motion with respect to plaintiff's Jones Act claims for assault and intentional infliction of emotional distress and plaintiff's unseaworthiness claim based on assault. The Court denies defendant's motion in all other respects.
At all times relevant to this case, the U.S.N.S. Mendonca ("Mendonca") was owned by defendant, the United States of America, through the Military Seaman Command; it was being operated by American Overseas Marine ("American Overseas"), a civilian contractor. (Def.'s Mot. 2; Pl.'s Resp. 1.) On June 10, 2006, plaintiff, James G. Sloan, began serving as a Qualified Member of the Engineer Department ("QMED") aboard the Mendonca. (Def.'s Mot. ¶ 1; Pl.'s Resp. 1; Master's Report of Alleged Harassment 1, Sept. 7, 2006, Ex. 1 to Pl.'s Resp.; Sloan Dep., July 29, 2008, 34:20--22.*fn1 ) Plaintiff worked as a watch stander in the engine room from 12:00am to 4:00am and from 12:00pm to 4:00pm. (Def.'s Mot. 2; Pl.'s Resp. 2; Sloan Dep. 34:20--35:4.) Plaintiff's watch partner was Third Engineer Trinity Adam Ippolito. (Sloan Dep. 35:5--7; Hopkins Dep., N.D., 30:4--7, Ex. 3 to Pl.'s Resp.; Ippolito Dep., N.D., 36:23--37:14, Ex. 4 to Pl.'s Resp.) Plaintiff's superiors included Captain Jay C. Burgess, Chief Engineer Roy Graham, and First Engineer Andrew Hopkins, who was plaintiff's immediate superior in the engine room. (Def.'s Mot. 2; Pl.'s Resp. 2--3; Sloan Dep. 51:10--11.)
In August 2006, on two occasions, plaintiff overheard First Engineer Hopkins use racial epithets with regard to other members of the ship's crew. (Def.'s Mot. 2; Pl.'s Resp. 3; Sloan Dep. 42:5--44:11; Ippolito Dep. 19:2--20:18.) Plaintiff is a light-skinned black male; according to the deposition testimony of plaintiff and First Engineer Hopkins, at the time that First Engineer Hopkins made the racial comments, he did not know that plaintiff was black. (Def.'s Mot. 2--4; Pl.'s Resp. 3; Sloan Dep. 42:5--16, 107:11--108:4; Hopkins Dep. 30:10--21.) In the first incident, First Engineer Hopkins was questioning QMED Justin Van Pelt as to why QMED Alexander Young, a black male, was not in the engine room. (Def.'s Mot. 3; Sloan Dep. 42:24--43:8.) First Engineer Hopkins told QMED Van Pelt to find QMED Young and "tell him to get his black ass down here." (Def.'s Mot. 3; Pl.'s Resp. 3; Sloan Dep. 43:11--17.) In the second incident, a few days after the first, First Engineer Hopkins referred to QMED Young as a "lazy nigger" and a "black mother fucker." (Def.'s Mot. 3; Pl.'s Resp. 3; Sloan Dep. 44:1--17; Ippolito Dep. 19:2--20:18.) After plaintiff overheard the second comment, he informed First Engineer Hopkins that he was black, and First Engineer Hopkins responded with a dirty look. (Def.'s Mot. 2--4; Pl.'s Resp. 3; Sloan Dep. 44:21--23.) Third Engineer Ippolito witnessed this exchange. (Pl.'s Resp. 4; Ippolito Dep. 72:19--23.) A few days later, plaintiff spoke with Captain Jay C. Burgess regarding the conduct of First Engineer Hopkins. (Pl.'s Resp. 12--13; Sloan Dep. 46:7--47:6, 114:10--20.) According to plaintiff, Captain Burgess discussed plaintiff's concerns with First Engineer Hopkins and Chief Engineer Roy Graham. (Pl.'s Resp. 5, 13; Sloan Dep. 114:21--115:9.)
After plaintiff informed First Engineer Hopkins that he was black and spoke with Captain Burgess, he stopped receiving overtime; plaintiff testified that these events were causally related. (Def.'s Mot. 2--4; Pl.'s Resp. 3; Sloan Dep. 42:5--16.) The morning after plaintiff told First Engineer Hopkins that he was black, August 12 or 13, plaintiff went down to the engine room to work his regular overtime hours beginning at 8:00am; the ship's elevator was broken, so plaintiff had to walk down approximately 120 steps. (Def.'s Reply 8--9; Pl.'s Resp. 4; Sloan Dep. 45:1--7, 113:2--17; Ippolito Dep. 48:8--49:7; Master's Report of Alleged Harassment 3.) Once plaintiff arrived in the engine room, First Engineer Hopkins said that there were no overtime hours available for plaintiff or Third Engineer Ippolito. (Def.'s Reply 8--9; Pl.'s Resp. 4; Sloan Dep. 45:1--7.) The same pattern occurred for the next two or three days; plaintiff then stopped going down to the engine room to work overtime hours. (Def.'s Reply 8--9; Pl.'s Resp. 4--5; Sloan Dep. 45:7--23, 114:1--9; Ippolito Dep. 36:17--38:3.)
On August 17, 2006, after plaintiff informed First Engineer Hopkins that he was black, plaintiff was adding chemicals to the main engine air cleaner dosing tank, one of his usual duties. (Pl.'s Resp. 5; Sloan Dep. 55:23--57:3; Master's Report of Alleged Harassment 2.) He was experienced at this task, but on this day, he was splashed with the chemicals on his face and body and required medical attention. (Pl.'s Resp. 5; Sloan Dep. 66:7--24; Ippolito Dep. 51:13--17; Hopkins Dep. 53:10--54:7; Master's Report of Alleged Harassment 2.) Plaintiff testified that he was splashed because First Engineer Hopkins had changed the position of the tank's valves without telling plaintiff. (Pl.'s Resp. 5; Sloan Dep. 58:5--12, 60:5--24; Master's Report of Alleged Harassment 2.) At his deposition, First Engineer Hopkins denied the allegation that he had moved the valves. (Hopkins Dep. 54:8--14.)
Also in August 2006, Chief Engineer Graham decided to operate the ship with an unmanned engine room; this entailed taking the crew off watch and assigning them to day work. (Def.'s Mot. 4; Pl.'s Resp. 6; Sloan Dep. 50:10--51:11.) Plaintiff testified that, based on his experience working in engine rooms since 1963, Chief Engineer Graham's decision was dangerous and made him feel unsafe. (Pl.'s Resp. 6; Sloan Dep. 49:15--51:19, 90:6--14.) The decision to transition to an unmanned engine room was to go into effect on August 27, 2006. (Pl.'s Resp. 6; Sloan Dep. 51:12--17.)
Plaintiff suffered from high blood pressure, which he usually controlled with medication. (Def.'s Mot. 4; Pl.'s Resp. 2, 7; Sloan Dep. 108:19--109:5.) According to plaintiff, in August 2006, due to the work situation in the engine room and his deteriorating relationship with First Engineer Hopkins, plaintiff's blood pressure began to rise and was no longer adequately controlled by his medication. (Def.'s Mot. 4; Pl.'s Resp. 2, 7; Sloan Dep. 38:5--39:10, 116:6--17.) Shortly thereafter, plaintiff requested medical attention, but Captain Burgess told plaintiff that he would have to wait to see a doctor until the ship called in Fujairah, about a week later. (Def.'s Mot. 4--5; Pl.'s Resp. 2, 7; Sloan Dep. 39:3--40:20, 116:6--117:8, 128:2--14.) When plaintiff's health did not improve, he went back to Captain Burgess on August 26 and said that he wanted to get off of the ship. (Def.'s Mot. 5; Sloan Dep. 48:12--19, 118:1--119:14; Master's Report of Alleged Harassment 1.) Captain Burgess told plaintiff that he would have to pay his own way home, and plaintiff agreed to do so. (Def.'s Mot. 5; Sloan Dep. 48:19--24, 119:15--19; Ippolito Dep. 41:2--8.)
On August 25 or August 26, 2006, Chief Engineer Graham asked plaintiff why he was no longer working overtime, and plaintiff responded that it was due to First Engineer Hopkins. (Def.'s Mot. 4; Sloan Dep. 90:18--91:4.) First Engineer Hopkins overheard plaintiff's remark and called him a "fucking liar." (Def.'s Mot. 4; Pl.'s Resp. 6; Sloan Dep. 90:18--93:7; Ippolito Dep. 43:3--44:3.) This was emotionally upsetting to plaintiff, who started arguing with First Engineer Hopkins. (Ippolito Dep. 43:3--44:5.) Plaintiff and Third Engineer Ippolito testified that First Engineer Hopkins jumped in plaintiff's face as if he was going to fight, causing Chief Engineer Graham to step in between plaintiff and First Engineer Hopkins. (Pl.'s Resp. 6; Sloan Dep. 90:18--93:7; Ippolito Dep. 43:3--44:5.) Defendant and First Engineer Hopkins neither confirm nor deny plaintiff's account that First Engineer Hopkins physically threatened him. The altercation between plaintiff and First Engineer Hopkins did not come to physical blows. (Def.'s Mot. 5; Sloan Dep. 93:8--16.) Plaintiff left the engine room, and First Engineer Hopkins commented that plaintiff should be fired. (Def.'s Mot. 4; Sloan Dep. 128:15--129:24; Ippolito Dep. 44:19--23; Master's Report of Alleged Harassment 4.) This comment was overheard by Third Engineer Ippolito and QMED Young. (Sloan Dep. 94:6--95:23, 128:15--129:24; Ippolito Dep. 44:19--23; Master's Report of Alleged Harassment 4.)
Immediately following this incident, plaintiff began to suffer from severe head pain and numbness, and his blood pressure was very high and not responding to his medication. (Pl.'s Resp. 6; Sloan Dep. 125:16--127:15, 150:1--12.) On August 27, 2006, at about 12:50pm, plaintiff suffered a stroke while he was in the engine room. (Def.'s Mot. 5; Pl.'s Resp. 8; General Dynamics, American Overseas Marine, Vessel Report of Injury or Illness to Crew, Ex. B to Def.'s Mot.) Third Engineer Ippolito was present in the engine room when plaintiff began complaining of chest, back, and shoulder pain; Third Engineer Ippolito thought that plaintiff was having a heart attack and called the medical officer. (Ippolito Dep. 51:18--52:24.) A doctor (navy reservist) onboard the ship also came to plaintiff's aid. (Ippolito Dep. 52:24--53:1.) The doctor insisted that plaintiff needed to receive medical treatment in the next twenty-four hours. (Pl.'s Resp. 8; Sloan Dep. 54:19--55:6, 99:3--100:19; Master's Report of Alleged Harassment 1.) Upon the doctor's advice, Captain Burgess turned the ship around and pulled into harbor; a boat took plaintiff from the ship to Fujairah on August 28, 2006. (Def.'s Mot. 5; Pl.'s Resp. 8; Sloan Dep. 100:20--101:4.)
Plaintiff's expert witness in neurology, Dr. Heidar K. Jahromi, concluded that plaintiff had suffered a stroke on August 27, 2006. (Report of Dr. Jahromi 2, Jan. 22, 2009, Ex. 5 to Pl.'s Resp.) Dr. Jahromi performed a physical examination of plaintiff and reviewed plaintiff's medical records and medical history. (Id. 1--2.) Dr. Jahromi also considered a letter from plaintiff's counsel that requested that he treat as true certain facts concerning the conditions onboard the Mendonca at the time of plaintiff's stroke. (Id. at 2; Letter from Stanley B. Gruber, Esq. to Dr. Heidar K. Jahromi 1--3 (Jan. 6, 2009), Ex. 7 to Pl.'s Resp.) Based on this information, it was his "professional opinion with reasonable amount of medical certainty that there is causal relation between what went on [onboard] the ship that day and [plaintiff's] stroke."*fn2 (Report of Dr. Jahromi at 2.)
Prior to the incident involving plaintiff, American Overseas Shipping Corporation had never "received any complaint concerning [First Engineer] Hopkins in matters involving racial prejudice, inappropriate conduct or work place violations." (Booth Affidavit ¶ 3, Oct. 14, 2008, Ex. C to Def.'s Mot.) First Engineer Hopkins's previous employers did not notify American Overseas Shipping Corporation of any complaints regarding racial prejudice or work place misconduct against First Engineer Hopkins. (Id. ¶ 4.)
On March 25, 2008, plaintiff filed a Complaint for damages pursuant to the Public Vessels Act, 46 U.S.C. §§ 31101--31113, and the Suits in Admiralty Act, 46 U.S.C. §§ 30901--30918. Plaintiff invoked this Court's admiralty and maritime jurisdiction. (Compl. ¶ 4.) Plaintiff alleged that he had sustained injuries "as a result of the carelessness and negligence of the Defendant and its agents, servants, crewmembers and officers and/or the unseaworthiness of its vessel, the U.S.N.S. Mendonca, and its crew and officers." (Id. ¶ 8.) The Complaint sought judgment against defendant in an amount in excess of $75,000 for, inter alia, physical and mental injuries, medical care, pain and suffering, and lost wages. (Id. ¶ 9.)
On November 25, 2008, defendant filed the instant Motion for Summary Judgment. In the motion, defendant seeks entry of judgment in its favor on all claims asserted by plaintiff.
A court should grant summary judgment if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is material when it "might affect the outcome of the suit under the governing law . . . ." Id. In considering a motion for summary judgment, the "facts must be viewed in the light most favorable to the party opposing summary judgment." Int'l Raw Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d 946, 949 (3d Cir. 1990) (citation omitted). The party opposing the motion, however, cannot "rely merely upon bare assertions, conclusory allegations or suspicions" to support its claim. Fireman's Ins. Co. of Newark, N.J. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982) (citations omitted).
Plaintiff's Complaint states that plaintiff "sustained the injuries which are the subject of this action as a result of the carelessness and negligence of the Defendant and its agents, servants, crewmembers and officers and/or the unseaworthiness of its vessel, the U.S.N.S. Mendonca, and its crew and officers." (Compl. ¶ 8.) In Plaintiff's Memorandum of Law in Opposition to the Motion for Summary Judgment of Defendant United States of America, plaintiff develops the general allegations of the Complaint and posits two theories of liability-negligence under the Jones Act and unseaworthiness. This Memorandum will examine each theory in turn.
The Jones Act, 46 U.S.C. § 30104(a), provides, in relevant part, that "[a] seaman injured in the course of employment . . . may elect to bring a civil action at law, with the right of trial by jury, against the employer. Laws of the United States regulating recovery for personal injury to . . . a railway employee apply to an action under this section." The reference to "[l]aws of the United States regulating recovery for personal injury to . . . a railway employee" incorporates the Federal Employers' Liability Act ("FELA"), 45 U.S.C. §§ 51--60, "[t]hus, cases interpreting the FELA provide guidance for the interpretation of the Jones Act." Perna v. Arco Marine, Inc., 2001 A.M.C. 1147, 1149 (3d Cir. 2001); accord Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 546--47 (1960); Barclay v. Keystone Shipping Co., 128 F. Supp. 2d 237, 243 (E.D. Pa. 2001).
The Jones Act imposes a duty upon the owner of a vessel "to furnish a reasonably safe place for a seaman . . . to perform his chores . . . , the breach of which results in liability for negligence . . . ." Earles v. Union Barge Line Corp., 486 F.2d 1097, 1104 (3d Cir. 1973). "Under the Jones Act, an employer is liable for injury suffered by a seaman through the negligence of the employer or a fellow employee." Wilburn v. Maritrans GP, Inc., 139 F.3d 350, 357 (3d Cir. 1998) (citations omitted). A relaxed standard ...