The opinion of the court was delivered by: Conti, District Judge.
In this memorandum opinion, the court considers the motion for summary judgment (Doc. No. 28) filed by defendant Matt Canestrale Contracting, Inc. ("MCCI" or "defendant"). Plaintiff Diane Martin ("Diane Martin" or "plaintiff") is the widow of Blaine Martin ("Blaine Martin" and together with Diane Martin, the "Martins"), an employee of MCCI who was found dead on a barge in the care of MCCI. In her complaint (Doc. No. 1), Diane Martin brought four claims against defendant: (1) unseaworthiness (count I), (2) Jones Act negligence (count II), (3) vessel negligence pursuant to 33 U.S.C. § 905(b) (count III), and (4) negligence/maritime tort (count IV). In defendant‟s pending motion, defendant seeks summary judgment with respect to all four of plaintiff‟s claims. After considering the joint statements of material facts and the submissions of the parties, the court will grant defendant‟s summary judgment motion with respect to count I and count II and deny defendant‟s motion with respect to count III and count IV for the reasons set forth herein.
This lawsuit originated from an apparent slip and fall that occurred on January 17, 2007. (See Def.‟s App‟x to Mot. for Summ. J. (Doc. No. 31), Ex. M (Washington County, Pennsylvania, Coroner‟s Report).) MCCI owned and operated motor vessels and barges on the Monongahela River. (Concise Stmt. of Material Facts (Doc. No. 41.), ¶ 11.) MCCI operated from a facility known as the Burrell Yard. (Id.) The Burrell Yard was located in Donora, Pennsylvania. (Id.)
MCCI employed deckhands, who worked on motor vessels. (Id. at 40). The employees who worked on the docks were referred to as "laborers." (Id.) The ticket collector was considered a laborer. (Id. at 41.) Blaine Martin held the position of ticket collector at MCCI. (Concise Stmt. of Material Facts, ¶ 36.) As a ticket collector, his job consisted of taking tickets from truck drivers and facilitating and assisting truck drivers in the loading of coal from the trucks into a hopper, which is a funnel shaped receptacle for conveying coal to a barge. (Id.; App‟x to Pl.‟s Resp. in Opp‟n to Mot. for Summ. J. (Doc. No. 36), Ex. 3 (Dallas Wingo Dep.) at 10-11.) The trucks would back into the loading area and dump the coal into the hopper. (Def.‟s App‟x to Mot. for Summ. J., Ex. I (Matt Canestrale Dep.) at 22-23.) If any coal spilled while it was being put into the hopper, which it often did, the ticket collector‟s responsibility was to shovel the coal into the hopper. (App‟x to Pl.‟s Resp. in Opp‟n to Mot. for Summ. J., Ex. 3 at 10-11; Ex. 5 at 13-14.) Ticket collecting and loading of coal onto the barges took place on the dock. (Def.‟s App‟x to Mot. for Summ. J., Ex. I at 22, 30, 40-43, 50-51.) Canestrale testified that the "ticket collector just puts the ticket in one container and the stock pile in the other. In return, when he gets so many, he takes them to the girl in the office, she marks them up where they go. She does the paperwork." (Id. at 43.) Blaine Martin was not permitted to work on any vessels because he did not take a drug test. (Id. at 76-77.)
Blaine Martin was not a master or member of any vessel that was owned or operated by MCCI, nor was he assigned permanently to a vessel owned or operated by MCCI. Blaine Martin did not have a valid merchant mariner‟s document at the time of his death, and Blaine Martin spent less than thirty percent of his time working for defendant in the service of a vessel owned or operated by MCCI. (Def.‟s App‟x to Mot. for Summ. J., Ex. J (Pl.‟s Resp. to Def.‟s First Reqs. for Admis.), ¶¶ 1-6.)
On January 17, 2007, Blaine Martin came home from work at approximately 4:50 p.m. (App‟x to Pl.‟s Resp. in Opp‟n to Mot. for Summ. J., Ex. 6 (Diane Martin Dep.) at 92, 105.). Upon coming home from work, Blaine Martin inquired when the Martins‟ daughter, Filomena, finished work that evening. (App‟x to Pl.‟s Resp. in Opp‟n to Mot. for Summ. J., Ex. 6 at 92.) Diane Martin explained that Filomena was supposed to get off work at 8:00 p.m. (Id.) Blaine Martin stated that he wanted to pick her up. (Id.)
That evening, the Monongahela River experienced high water conditions. (Concise Stmt. of Material Facts, ¶ 42.) As a result of the high water conditions, Matt Canestrale ("Canestrale"), owner of MCCI, called Blaine Martin at his residence at 5:34 p.m. and asked him to go to Burrell Yard and check on the barges to make sure the barges were secure. (App‟x to Pl.‟s Resp. in Opp‟n to Mot. for Summ. J., Ex. 6 at 92-94.) Blaine Martin was given instructions to drive his car to the dock and observe the water level by looking to see how high the barges rose above the top of the dock. (Def.‟s App‟x to Mot. for Summ. J., Ex. I at 121-22.) Diane Martin testified that Blaine Martin told her before he left that he was not going to go onto any of the barges. (Def.‟s App‟x to Mot. for Summ. J., Ex. K (Diane Martin Dep.) at 106-07.) Plaintiff‟s expert, David L. Kroll ("Kroll"), a licensed marine engineer, explained that although Blaine Martin may have stated that he was not going to go onto the barges, the only way to "check" the status of the barges was to go physically onto one of the barges, Barge ACBL 2870, and visually inspect the lines that secured the barges. (App‟x to Pl.‟s Resp. in Opp‟n to Mot. for Summ. J., Ex. 1 (Kroll Aff.), ¶¶ 1, 3.) The Burrell Yard was within a three to four minute drive of the Martins‟ house. (App‟x to Pl.‟s Resp. in Opp‟n to Mot. for Summ. J., Ex. 6 at 91.)
At 6:30 p.m., Blaine Martin had not returned home from the Burrell Yard. (Id. at 94.) By 8:00 p.m., he was still not back; Diane Martin went to pick up Filomena at that time. (Id.) Neither Diane Martin nor Filomena could observe Blaine Martin‟s car as they drove past the Burrell Yard. (Id.) After arriving home, Diane Martin called Canestrale expressing concern about her husband‟s whereabouts. (Id. at 95-96; Concise Stmt. of Material Facts, ¶ 55.) After waking up the next morning, Diane Martin and Filomena drove past the Burrell Yard, and again they were not able to see Blaine Martin‟s car. (App‟x to Pl.‟s Resp. in Opp‟n to Mot. for Summ. J., Ex. 6 at 95-96.) When they got back home, Diane Martin called Canestale on January 18, 2007 at approximately 10:00 a.m. (Id.; Concise Stmt. of Material Facts, ¶ 55.) After receiving Diane Martin‟s phone call, Canestrale asked his workers to search for Blaine Martin. (Def.‟s App‟x to Mot. for Summ. J., Ex. I, 133 (Canestrale Dep.).) Blaine Martin was found face down on the gunnel, which is the upper railing of a barge‟s side, of a loaded coal barge tied off to the dock barge at the Burrell Yard. (Def.‟s App‟x to Mot. for Summ. J., Ex. L, 12 (Dilegge Dep.); Def.‟s App‟x to Mot. for Summ. J., Ex. M.) Canestrale called Diane Martin and told her that "We found him. He‟s dead. He had a heart attack." (App‟x to Pl.‟s Resp. in Opp‟n to Mot. for Summ. J., Ex. 6 at 96.) On January 19, 2007, the coroner of Washington County, Pennsylvania issued a report which stated that Blaine Martin‟s "DEATH WAS ATTRIBUTED TO BLUNT FORCE TRAUMA OF HEAD; BLUNT FORCE TRAUMA OF CHEST (ACCIDENTAL)." (Def.‟s App‟x to Mot. for Summ. J., Ex. M.)
In 2003, the American Commercial Barge Line LLC sold Barge ACBL 2870 to scrap service company Monongahela Iron & Metal Company ("MIMCO"). (Def.‟s App‟x to Mot. for Summ. J., Ex. A (John W. Wray Aff.), ¶ 5.) MIMCO paid scrap value of $11,500.00 for Barge ACBL 2870. (Id. ¶ 6.) Barge ACBL 2870 was 195 feet long, thirty-five feet wide, and over twenty-one feet high. (App‟x to Pl.‟s Resp. in Opp‟n to Mot. for Summ. J., Ex. 2 (Csamer Aff.), ¶ 4.) MIMCO lacked sufficient space to store Barge ACBL 2870. (Def.‟s App‟x to Mot. for Summ. J., Ex. A, ¶ 8.) Because of the lack of space, MCCI agreed to store Barge ACBL 2870 at a storage facility in Bunola, Pennsylvania. (Id. ¶¶ 8-10.) In late 2003, Canestrale proposed exchanging with MIMCO barges containing approximately 300 tons of scrap metal for Barge ACBL 2870, which consisted of approximately 300 tons of scrap metal. (Id. ¶¶ 11-12.) After MCCI obtained Barge ACBL 2870, the barge was moved to the Burrell Yard. (Id. ¶ 13.) Canestrale intended to use Barge ACBL 2870 as a dock at the Burrell Yard. (Def.‟s App‟x to Mot. for Summ. J., Ex. E (Canestrale Aff.), ¶ 4.) As of November 10, 2008, however, Barge ACBL 2870 was still listed as "in service" with the United States Coast Guard. (App‟x to Pl.‟s Resp. in Opp‟n to Mot. for Summ. J., Ex. 9.)
In 2003, MCCI hired a welder to cut a hole in the deck and rake of Barge ACBL 2870 and weld a steel spudwell to the deck and rake of the barge. (Def.‟s App‟x to Mot. for Summ. J., Ex. D (Def.‟s Ans. to Pl.‟s Third Set of Interrogs.), No. 1; Def.‟s App‟x to Mot. for Summ. J., Ex. E, ¶¶ 6-7.) MCCI placed a forty-foot long, thirty-inch wide steel spud*fn1 through the spudwell. (Def.‟s App‟x to Mot. for Summ. J., Ex. E, ¶ 6.) The spud was filled with concrete and weighed approximately 45,000 pounds. (Def.‟s App‟x to Mot. for Summ. J., Ex. C (Expert Report of John P. Colletti), at 2.) The spud was buried approximately ten feet into the riverbed. (Def.‟s App‟x to Mot. for Summ. J., Ex. E, ¶ 6.) Barge ACBL 2870 has been in its present location since spudded down in 2003. (Id. ¶ 8.)
Since the installation of the spud, Barge ACBL 2870 has served as the dock barge; it rises and falls with the water level of the river, which Canestrale testified eliminated the need to adjust the lines of barges tied to the dock barge. (Def.‟s App‟x to Mot. for Summ. J., Ex. E, ¶ 7.) Barge ACBL 2870 exhibits some wear and damage including wasting of shell plating and has numerous leaks resulting in the collection of water in the compartments of the barge. (Def.‟s App‟x to Mot. for Summ. J., Ex. C at 3-5.) Because of the amount of water that has materialized in the compartments of Barge ACBL 2870, water would need to be pumped from the barge before it could be used for transportation. (Id. at 7-9; App‟x to Pl.‟s Resp. in Opp‟n to Mot. for Summ. J., Ex. 1 (David L. Kroll Aff.), ¶ 4(i).)
John P. Colletti ("Colletti"), a marine surveyor, submitted an expert report on behalf of MCCI regarding the condition of Barge ACBL 2870. Colletti received a degree in Marine Engineering from the State University of New York Maritime College and a degree in Marine Engineering from the United States Merchant Marine Academy. (Def.‟s App‟x to Mot. for Summ. J., Ex. C at 11.) In 1970, Colletti also attained a graduate degree in Marine Transportation from the State University of New York Maritime College. (Id.) Colletti has been a registered certified marine surveyor since 1971. (Id.) His services include failure analyses of hulls and machinery, fleeting and mooring analyses, and vessel structural and stability analyses. (Id at 12.) With respect to the condition of Barge ACBL 2870, Colletti found that the cargo space contained an estimated two feet of water at the forward end and an estimated five feet of water at the after end. (Id. at 3.) Colletti also found up to six feet of water in the wing compartments. (Id. at 5.) Externally, he found that the barge showed heavy wear and tear. The coaming had been cutaway and removed on the starboard side. (Id. at 4.) This alteration weakens the structure and increases the chances of buckling or catastrophic failure. (Def.‟s App‟x to Mot. for Summ. J., Ex. C at 4.) The port coaming has been cutaway and removed beginning at forty-seven feet aft of the headlog, which is the bow of the dock, and extending aft fourteen feet, weakening the structure. (Id. at 4.) The rounded port corner also contains vertical fractures five feet long beginning at the deck; the fractures open from one-fourth inch to three-fourths inch. (Id. at 5.) These fractures are potential leaks. (Id.) Colletti observed that Barge ACBL 2870 floats because of reserve buoyancy, which is "that portion of the enclosed and watertight hull above the waterline which allows the leaking vessel to continue to flood without resulting in sinking"; despite this observation, he stated it does not rise to the level of safe navigation. (Def.‟s App‟x to Reply Mem. in Supp. of Summ. J., Ex. A.)
In order to remove the barge from its present location, Colletti believes that a towboat, a work flat, a mud barge, a 150-ton crane equipped with a 150-ton load block and clamshell bucket and at least two small spuds, and at least five pumps will be needed. (Id. at 7.) He estimates that the removal of the barge from its present location would take at least three full days and would cost approximately $35,000.00. (Id. at 9.) According to Colletti, the internal and external condition of the barge reduced the barge to a "hulk," and it is an old ship unfit for service. (Id. at 5-6, 10.) Colletti stated that in its present condition, the barge "leaks everywhere so that all compartments and the spaces along each side (wing voids) are river-full of water." (Id. at 5.) He expressed the opinion that, if an attempt was made to remove the barge from its current location without making substantial repairs to the barge, there is a substantial likelihood that the barge would sink. (Id.) He also was of the opinion that the barge could not carry the designer‟s original load capacity, because the steel plating on the sides deteriorated and the coamings were partially removed. (Id.) In Colletti‟s opinion, repairs to make the barge seaworthy could cost in excess of $107,000.00. (Id. at 10.) Because of the expense of repairing the extensive damage and the costs associated with removing the spud, Colletti concluded that the barge is unsound and unfit for service other than as a beached dock. (Id.)
Plaintiff obtained an expert opinion from Richard P. Csamer ("Csamer"). Csamer received a bachelor of science degree in mechanical engineering from West Virginia University in 1952. (App‟x to Pl.‟s Resp. in Opp‟n to Mot. for Summ. J., Ex. 2, ¶ 1.) Before retiring in 1982, he was an employee of the United States Department of Energy in Coal and Gas Research as the Chief of the Engineering Design Section. (Id.) After retiring, he entered the field of safety and accident reconstruction involving commercial, industrial, vehicular, and personal accidents. (Id.) On October 15, 2005, Csamer inspected the Burrell Yard harbor and dock facility. (Id. ¶ 2.) He is of the opinion that Barge ACBL 2870 would have obstructed the view of anyone attempting to visualize the loaded barges from the shore. (Id. ¶ 6.) The other barges stored at the Burrell Yard were 175 feet long, twenty-six feet wide, and were less than twelve feet in height. (Id. ¶ 4.) This short height meant that other barges alongside Barge ACBL 2870 had approximately two feet of freeboard, which is the vertical distance from the top of the barge to the water surface. (Id.) He opined that Barge ACBL 2870 would have stood at least eight feet higher than the other barges on the night of January 17, 2007. (Id. ¶ 5). Even assuming that there was lighting at the Burrell Yard on the night of Blaine Martin‟s death, Csamer believes that Barge ACBL 2870 would have cast a shadow over the loaded barges and lines riverward of Barge ACBL 2870, making it necessary for Blaine Martin to access Barge ACBL 2870 in order to complete the task of checking on the other barges and checking the water level. (Id. ¶ 6, 7.) With respect to the current status of Barge ACBL 2870, Csamer believes that removing the spud and casting off the stern line would take a short time and would make the barge transportable. (Id. ¶ 9.)
Plaintiff hired Kroll, a licensed marine engineer, to examine Barge ACBL 2870. Kroll resides in New Orleans, Louisiana. (App‟x to Pl.‟s Resp. in Opp‟n to Mot. for Summ. J., Ex. 1, ¶ 1.) He is a licensed Marine Engineer and a graduate of the United States Merchant Marine Academy. (Id.) He was employed by Kroll Marine Surveying for twenty-six years, and offered hull, cargo, and machinery inspections, risk assessment, and marine safety development. (Id.) In preparation of his report for this case, Kroll reviewed the following documents: the Carroll Township police report and photographs, the United States Coast Guard report, the OSHA investigative file and citations, OSHA photographs taken on January 22, 2007, photographs taken by plaintiff‟s attorney on October 15, 2008, photographs of Barge ACBL 2870 taken by defendant‟s attorney, the report of Colletti, the United States Coast Guard certificate of documentation, affidavits of John W. Wray and Canestrale, a letter from the American Commercial Barge Lines to United States Coast Guard dated May 7, 2004, photographs taken by Csamer on October 15, 2008, a diagram of the harbor by Richard Csamer, and excerpts from the deposition of Canestrale. (Id. ¶ 2.) In his expert opinion, the only way for Blaine Martin to "check" the barges was to go physically onto Barge ACBL 2870, which was the highest point of the loaded fleet. (Id. ¶ 3.)
Based upon Kroll‟s experience with barges, Kroll stated that "[b]arges that are sold as "scrap‟ may still be capable of navigation." (Id. ¶ 4a.) He stated the usual maximum life of barges is not limited to twenty to twenty-five years; this opinion was in part based upon MIMCO‟s registered fleet of 113 barges over thirty-one years old. (Id. ¶ 4b.)
With respect to the spud and the spudwell, Kroll explained that once a spud is lifted from the river bottom, a vessel can be navigated to another location. The navigation is possible because the spudwell is water tight and cannot let water into the interior of the barge. (Id. ¶ 4d.) Kroll stated that having spuds on a barge does not make the barge a permanently moored vessel. (Id. ¶ 4e.) Kroll noted that a thirty-five ton crane could be used to remove the spud from Barge ACBL 2870. (Id. ¶ 4k.) A crane of that size can be rented for an hourly rate of $300.00. (Id.) He stated that once the crane is in place, it should only take minutes to raise the spud. (Id.) With respect to the size of the spud, Kroll is of the opinion that the spud on Barge ACBL 2870 measuring forty feet by thirty inches is not out of the ordinary, nor is it unusual that the spud is buried ten feet deep into the river bottom. (Id. ¶ 4f.)
Kroll also gave an expert opinion on the condition of Barge ACBL 2870. Kroll explains that the cutting away of the coaming does not prevent the barge from being navigated to another location, and such damage is common on barges that have been in service for over twenty years. (Id. ¶ 4h.) In order to determine the ingress of water in the void compartments, the void compartments need to be pumped and checked, which is a common procedure in the river industry. (Id. ¶ 4i.) Typically, a barge is pumped when the void compartments have three inches to six inches of water in them. (Id.)
Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted if, drawing all inferences in favor of the nonmoving party, "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 a judgment as a matter of law." FED. R. CIV. P. 56(c).
The nonmoving party must point to specific affirmative evidence in the record, rather than rely upon conclusory or vague allegations or statements. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Concrete evidence must be provided for each element of each of the claims, and the evidence must be such that a reasonable fact-finder could find in that party‟s favor at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "A nonmoving party, like plaintiff, must "designate specific facts showing that there is a genuine issue for trial.‟" Orenge v. Veneman, No. 04-297, 2006 WL 2711651, at *6 (W.D. Pa. Sept. 20, 2006) (citing Celotex, 477 U.S. at 324).
A motion for summary judgment will not be defeated by the mere existence of some disputed facts, but will be defeated when there is a genuine issue of material fact. Anderson, 477 U.S. at 248. In determining whether the dispute is genuine, the court‟s function is not to weigh the evidence or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the nonmoving party. Id. at 249. The court may consider any evidence that would be admissible at trial in deciding the merits of a motion for summary judgment. Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir. 1993); Pollack v. City of Newark, 147 F. Supp. 35, 39 (D.N.J. 1956), aff'd, 248 F.2d 543 (3d Cir. 1957) ("in considering a motion for summary judgment, the court is entitled to consider exhibits and other papers that have been identified by affidavit or otherwise made admissible in evidence").
A. Count I (Unseaworthiness) and Count II (Negligence)
In counts I and II of plaintiff‟s complaint, plaintiff brings claims of unseaworthiness under general maritime law and negligence under the Jones Act, 46 U.S.C. § 30104. Defendant moved for summary judgment, alleging that plaintiff cannot assert claims of unseaworthiness and Jones Act negligence ...