The opinion of the court was delivered by: Stengel, J.
John and Constance Shields filed this tort action against the United States on May 9, 2008. They claim that John Shields suffered extensive injuries as a result of negligence on the part of the United States, the operator of the U.S.S. Blue Ridge.
This court has jurisdiction over Mr. Shields' case pursuant to 28 U.S.C. § 1331, because it arises under federal law.
The U.S.S. Blue Ridge is a military vessel owned and operated by the United States which was stationed in the Port of Yokosuka, Japan. Pl.'s SUF ¶ 1. Sometime on or around May 18, 2006, a fan room aboard the Blue Ridge became flooded with human waste and sewage from a nearby restroom facility. Pl.'s SUF ¶ 4. That waste leaked into the Fleet Intelligence Center ("FIC"), the room below the fan room, and directly onto computer equipment located in the FIC known as the PTW Stereo Client Equipment Rack ("PTW"), which will alternately be referred to as the "computer equipment" or "computer tower." Id. at ¶¶ 4, 5. The PTW was used, along with other equipment in the FIC, to operate the Blue Ridge's weapons system. Id. at ¶ 5.
Following the leak, Navy personnel cleaned the outside of the computer tower located in the FIC with an iodine-based solution and the inside with isopropyl alcohol. Def.'s SUF ¶ 16. After cleanup was complete, Naval personnel attempted to "re-energize" the computer in the FIC, but it failed to operate. Id. at ¶ 22.
Lockheed Martin Corporation is under contract with the United States government to perform work on the Blue Ridge. Charles McKinstry is employed by Lockheed as a Multi-Function System Analyst Manager; he learned about the waste leak and damage to the PTW approximately a week after it occurred. Def.'s SUF ¶¶ 8--10. He was informed by Navy personnel that the equipment had been satisfactorily cleaned but was not working properly. Pl.'s SUF ¶ 12. Mr. McKinstry dispatched John Shields, another Lockheed employee, to perform repair work on the computer equipment because Mr. Shields had originally installed it. Id. at ¶ 12. Mr. Shields' assignment was to replace any damaged computer equipment. Id.
Mr. Shields arrived at the Blue Ridge on June 8, 2006 and met with Lieutenant Commander Richard King before beginning work on the damaged equipment. Pl.'s SUF ¶ 24. Lieutenant King, who was involved in coordinating cleanup and repair of the equipment, testified during a deposition that he considered the equipment in question safe for Mr. Shields to work on, but could not remember exactly what he told Mr. Shields at the time of their meeting. Id. Both Mr. McKinstry and Lieutenant King informed Mr. Shields that the equipment was clean and safe for work. Id. On June 12, 2006, while performing the repair work, Mr. Shields was scratched on his right arm by a plastic zip tie holding cables together inside the computer. Id. at ¶ 13. A few days later, while in Hawaii on a different job for Lockheed, he bumped that arm and it began to swell. Id. at
¶ 29. Mr. Shields' arm quickly worsened, and he was diagnosed with compartment syndrome and severe cellulitis. Id. Mr. Shields has provided the report of a pathologist indicating that his cellulitis was caused by his exposure to human waste contaminants present on the plastic zip tie that caused the laceration to his arm. Id. at ¶ 51.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). An issue is "genuine" when a reasonable jury could return a verdict for the non-moving party based on the evidence in the record. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" when it could affect the outcome of the case under the governing law. Id.
A party seeking summary judgment initially bears responsibility for informing the court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the moving party's initial Celotex burden can be met simply by demonstrating "to the district court that there is an absence of evidence to support the non-moving party's case." Celotex, 477 U.S. at 325. After the moving party has met its initial burden, "the adverse party's response, by affidavits or otherwise as provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). Summary judgment is therefore appropriate when the non-moving party fails to rebut by making a factual showing "based on the affidavits or by depositions and admissions on file" that is "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322; Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir.1992).
The court must view the evidence in the record in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Anderson, 477 U.S. at 255. The court must decide not whether the evidence unmistakably favors one side or the other, but whether a fair-minded jury ...