WALKER et al v. WALKER BROTHERS FISHERIES, LLC et al, No. 1:2012cv04223 - Document 53 (D.N.J. 2014)
Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 12/17/2014. (drw)
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WALKER et al v. WALKER BROTHERS FISHERIES, LLC et al Doc. 53 U N ITED S TATES D ISTRICT COU RT D ISTRICT OF N EW JERSEY ___________________________ RONALD WALKER an d KIMBERLY WALKER, : : Plaintiffs, : : v. : : WALKER BROTHERS FISHERIES, LLC, : J OHN DOES 1-10 , and THE DOE LEGAL : ENTITY 1-10 , : : Defendants. : _______________________________ Hon. J oseph H. Rodriguez Civil Action No. 12-4223 OPIN ION This m atter is before the Court on m otion for sum m ary judgm ent. The Court has considered the written subm issions of the parties in addition to the argum ents advanced at the hearing on J uly 29, 20 14. For the reasons set forth on the record at the hearing and those set forth below, the m otion for sum m ary judgm ent is denied. I. Backgro u n d Plaintiff Ronald Walker was injured when his oilskins were caught in the winch of his vessel, the Constantino L (“Vessel”), on August 6, 20 0 9. 1 His leg was m angled beyond repair and am putated several days later. On the date of the injury, Plaintiff was captain of the Vessel. 2 Plaintiff is also a m em ber of the com pany that owned the Vessel on the date of the injury, Walker Brothers Fisheries, LLC. Walker Brothers Fisheries, 1 Oilskins are foul weather gear. The m en were wearin g the gear on the ship that day because it was rainin g and windy. The weather and sea conditions are alleged to be a factor in the events leading up to the accident. 2 Plaintiff has served as captain of the Vessel since 20 0 1. 1 Dockets.Justia.com LLL (“Com pany”) is a New J ersey lim ited liability com pany of which Plaintiff and his brother, J ohn Walker, are each 50 % owners. Im m ediately before his injury, Plaintiff had been unsnapping rings from the seine line. 3 At the tim e of his injury, Plaintiff was tightening the purse line of the fishing net to raise the rings, as he had done hundreds of tim es before his injury. 4 (Ronald W. Walker 1/ 27/ 14 Dep., p. 35-36.) By this tim e, he had already turned the capstan on, which serves to tighten the purse line. (Ronald W. Walker 1/ 27/ 14 Dep., p. 29.) As Plaintiff was tightening the purse line, he “rock[ed] toward [the winch],” causing his oilskins to get caught in the winch. (Darren Walker 2/ 0 4/ 14 Dep., p.11.) 5 After going around several tim es, it caught his pant leg, resulting in his injury. Upon getting caught, he was unable to reach the hydraulic controls, although he tried to grab them . (Ronald W. Walker 1/ 27/ 14 Dep., p. 37.) 6 Ultim ately, Blake Walker—the closet crewm em ber to the Plaintiff at the tim e of injury—was able to go through the pilothouse port door and turn off the control. Plaintiff adm its that it was possible for another crewm em ber to have operated the hydraulic controls while he took up the slack. 7 Plaintiff also adm its that, as captain, he could have relocated the capstan controls prior to his injury. As owner of the com pany, Plaintiff also adm its that he could have installed the controls in a different location. However, Plaintiff did not know of any other boats in the bunker fishery that had a 3 At this tim e, Plaintiff was standing outside the pilothouse. Tighten ing the purse line requires wrappin g the purse line spool around the winch and winding it up until the rings com e up. The purse line is tighten ed using the capstan. This is required because the snap rings som etim es drop down when taking the net in. 5 The winch is where the cable gets wrapped around. It is used to haul in the net. 6 The hydraulic controls were located forward of the capstan, just inside the entrance to the pilothouse. Plaintiff claim s that they were out of arm s reach. 7 There were four other crewm em bers on the Vessel on the day of Plaintiff’s in jury. 4 2 cutoff switch installed on the capstan prior to his injury, and Plaintiff did not com e to the conclusion that the handles were too far away until after his injury. As the captain, Plaintiff assigned the crewm em bers their duties, assigning him self to run the power block and capstan and unhook snap rings from the purse line. 8 Plaintiff was also the one who gave the order to set the fishing net. Plaintiff is also responsible for m aking sure that the Vessel m et the United States Coast Guard requirem ents. As a m em ber of Com pany, Plaintiff kept the books and signed checks on behalf of the com pany. J ohn Walker, the only other m em ber of the Com pany, did not sign any checks or agreem ents for the Com pany, except while Plaintiff was recovering from his injury. As owner of the Com pany, Plaintiff had an obligation to m ake sure the Vessel was seaworthy and was directly involved in the m aintenance and upgrades of the Vessel. Accordingly, if an unsafe condition was observed on the Vessel, it would be reported to Plaintiff. He has authorized safety im provem ents and has authorized vendors to perform m aintenance an d repairs on the Vessel. Plaintiff has never m ade a recom m en dation to change, replace, m odify, or perform m aintenance on the Vessel an d had that recom m en dation been denied. After Plaintiff’s injury, the capstan controls rem ained in the sam e location on the Vessel and the Vessel continued to bunker fish for the Com pany. However, because of his am putation, Plaintiff had a long recovery period and did not return to the boat. At som e point during his recovery, the Vessel was rem oved from service as a purse seine boat. The Com pany eventually installed the capstan from the Vessel on the com pany’s 8 The power block is responsible for brin gin g the net in . 3 new catch vessel, the FN Morning Star. However, Plaintiff designed a safety switch and new valves so they could be m ore easily reached. 9 II. 10 Su m m ary Ju d gm e n t Stan d ard “Sum m ary judgm ent is proper if there is no genuine issue of m aterial fact and if, viewing the facts in the light m ost favorable to the non-m oving party, the m oving party is entitled to judgm ent as a m atter of law.” Pearson v. Com ponent Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 20 0 1) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 (a). The Court will enter sum m ary judgm ent in favor of a m ovant who shows that it is entitled to judgm ent as a m atter of law, and supports the showing that there is no genuine dispute as to any m aterial fact by “citing to particular parts of m aterials in the record, including depositions, docum ents, electronically stored inform ation, affidavits or declarations, stipulations . . . adm issions, interrogatory answers, or other m aterials.” Fed. R. Civ. P. 56 (c)(1)(A). An issue is “genuine” if supported by evidence such that a reasonable jury could return a verdict in the nonm oving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “m aterial” if, under the governing substantive law, a dispute about the fact m ight affect the outcom e of the suit. Id. In determ ining whether a genuine issue of m aterial fact exists, the court m ust view the facts and all reasonable inferences drawn from those facts in the light m ost favorable to the nonm oving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Initially, the m oving party has the burden of dem onstrating the absence of a genuine issue of m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (198 6). Once 9 The cutoff switch could not have been design ed for the original Vessel because the original Vessel was not electric. 10 The new valves are installed right above the capstan. They have spring-loaded con trols. 4 the m oving party has m et this burden, the n onm oving party m ust identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally’s Park Place, Inc., 8 70 F. Supp. 1254, 1258 (D.N.J . 1994). Thus, to withstand a properly supported m otion for sum m ary judgm ent, the nonm oving party m ust identify specific facts and affirm ative evidence that contradict those offered by the m oving party. Andersen, 477 U.S. at 256-57. “A nonm oving party m ay not ‘rest upon m ere allegations, general denials or . . . vague statem ents . . . .’” Trap Rock Indus., Inc. v. Local 8 25, Int’l Union of Operating Eng’rs, 982 F.2d 8 84, 8 90 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 50 0 (3d Cir. 1991)). Indeed, the plain language of Rule 56(c) m andates the entry of sum m ary judgm ent, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, an d on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. That is, the m ovant can support the assertion that a fact cannot be genuinely disputed by showing that “an adverse party can not produce adm issible evidence to support the [alleged dispute of] fact.” Fed. R. Civ. P. 56(c)(1)(B); accord Fed. R. Civ. P. 56(c)(2). In deciding the m erits of a party’s m otion for sum m ary judgm ent, the court’s role is not to evaluate the evidence and decide the truth of the m atter, but to determ ine whether there is a gen uine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Credibility determ in ations are the province of the factfinder. Big Apple BMW, Inc. v. BMW of N. Am ., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). III. D is cu s s io n Defendant m oves for sum m ary judgm ent on three grounds. First, Plaintiff’s claim s m ust be dism issed because Walker is the controlling m em ber of the Com pany and 5 responsible for the fitness of the Vessel and the m aintenance an d operation of the winch which caused his injury. Alternatively, m aritim e law does not perm it a captain of a vessel to prevail against an owner of the vessel where the captain had a prim ary duty to m itigate the dangerous condition that caused his injury and failed to do so. Finally, Walker’s unseaworthiness claim fails because he cannot show that the Vessel was not reasonable fit for its in tended purpose. The Court will address the issues in turn. A. N e w Je rs e y Law Pe rm its Plain tiff to Su e W alke r Bro th e rs Fis h e rie s , LLC. The initial basis for Defendants’ Motion for Sum m ary J udgm ent is that Plaintiff is precluded from bringing his claim s against an association of which he is a m em ber. This case presents a novel issue before this Court and the parties are unaware of any case in New J ersey that is directly on point. In pursuing the claim against Walker Brothers Fisheries, Walker is essentially suing him self— or at least the corporate version of him self. Under New J ersey law, there is nothing preventing Plaintiff from pursuing his claim . “The rights of a m em ber against a partnership or unincorporated association vary depen ding on the law of the State in which the association is form ed and is operating.” Walsh v. Zuisei Kaiun K. K., 60 6 F.2d 259, 264 (9th Cir. 1979). New J ersey law controls, as Walker Brothers Fisheries is a New J ersey lim ited liability com pany which operates in New J ersey. Although New J ersey has considered and perm itted a m em ber of a volunteer association to sue that association, it has never considered this issue in the context of a lim ited liability com pany consisting of only two m em bers. See Buteas v. Raritan Lodge # 61 F. & Am ., 248 N.J . Super. 351 (App. Div. 1991). 6 Other courts have considered this issue and two views have surfaced. The traditional view is that the negligence of the association is im puted to the plaintiff m em ber, thus barring recovery from the association for personal injuries. Strom v. M/ V “Western Dawn”, 698 F. Supp. 212, 213-14 (W.D. Wash. 1986) (citing Carr v. N. Pac. Beneficial Ass’n, 128 Wash. 40 , 45-46 (1924). A m ore liberal view focuses on “the nature and extent of the m em ber’s ability to determ ine the policy of the association or partnership.” Strom , 698 F. Supp at 214. The record reflects that Plaintiff owned 50 % of the Com pany, kept the books for the Com pany, and paid the bills on behalf of the Com pany. Plaintiff also arranged for the m aintenance and repairs of the Com pany’s vessels. Plaintiff also authorized safety im provem ents. All of Plaintiff’s recom m endations to either m odify or perform m aintenan ce on the Vessel were approved. There is no dispute as to these facts. The Court finds that pursuant to Buteas, Plaintiff m ay pursue his claim . Plaintiff’s com parative or contributory negligence m y tem per his recovery, but the extent of Plaintiff’s negligence, if any, is a question of fact. As the New J ersey Suprem e Court stated in Buteas: [W]e are aware that the plaintiff-m em ber m ay in fact bear som e degree of actual culpability for the conduct which resulted in his injury by reason of his participation in the m anagem ent of the association's affairs or in otherwise creating the risk of harm which eventuated in his injury. But a degree of actual culpability provides, in our view, no sound basis for barring him from suit any m ore than any other form of contributory negligence would. We have in this jurisdiction well-established rules of com parative negligence by which a plaintiff can be held chargeable to the extent his own conduct has contributed to the harm he has suffered. These rules are fully applicable in an action by a m em ber against a voluntary association when the m em ber's negligen ce, based on his participation in any form in the creation of the risk, m ay have contributed to his injuries. That participation m ay result in a reduction of his recovery. It m ay even preclude recovery if the finder of fact concludes that plaintiff's negligence is greater than 50 %. But the m ere potential for assessm ent of a degree of 7 culpability against him cannot bar the action any m ore than a contributory negligence claim in an y other context could. Buteas, 248 N.J . Super. at 362. On sum m ary judgm ent, the court’s role is not to evaluate the eviden ce and decide the truth of the m atter, but to determ ine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. New J ersey law perm its Plaintiff’s claim ; Walker’s role in the accident presents a question of fact for the jury. B. J ON ES Act N e glige n ce an d U n s e a w o rth in e s s Defendant m oves for sum m ary judgm ent on the claim s of J ones Act negligence and unseaworthiness. Although som e of the reasoning supporting Defendant’s m otion does not overlap with respect to these separate claim s, Defendant’s chief argum ent is that the prim ary duty doctrine precludes Plaintiff from recovering against Defendant because Walker was in control of all of the aspects of the com pany, including the very equipm ent he com plains caused his accident. The prim ary duty rule precludes “a seam an-em ployee . . . from [recovering against] his em ployer for injuries caused by his own failure to perform a duty im posed on him by his em ploym ent.” California Hom e Brands, Inc. v. Ferreira, 871 F.2d 8 30 , 8 36– 8 37 (9th Cir. 1989) (citing Reinhart v. United States, 457 F.2d 151 (9th Cir. 1972)). Put differently, “[t]he prim ary duty rule provides that a ship's officer m ay not recover against his em ployer for negligence or unseaworthiness when there is no other cause of the officer's injuries other than the officer's breach of his consciously assum ed duty to m aintain safe conditions aboard the vessel.” Wilson v. Maritim e Overseas Corp., 150 F.3d 1, 11 (1st Cir. 1998). 8 The prim ary duty rule relieves an em ployer of liability upon satisfaction of the following conditions: (1) the seam an m ust have consciously assum ed a duty as a term of em ploym ent; (2) the dangerous condition that injured the seam an m ust have been created by the seam an or could have been controlled or elim inated solely by the seam an in the proper exercise of his or her em ploym ent duties; and (3) the seam an m ust have knowingly violated a duty consciously assum ed as a condition of em ploym ent. Northern Queen v. Kinnear, 298 F.3d 10 90 , 10 96 (9 th Cir. 20 0 2) (citing Moore v. The Sally J ., 27 F.Supp.2d 1255, 1262– 63 (W.D.Wash. 1998)). The parties do not point to case law in this Circuit discussing the prim ary duty rule, but the Ninth Circuit provides am ple guidance. In a case with sim ilar facts, the Ninth Circuit upheld the district court’s entry of judgm ent, following a trial, in favor of the em ployer pursuant to the prim ary duty rule. Northern Queen, 298 F.3d 10 90 . In Northern Queen, a ship and all hands on deck were lost at sea durin g a violent storm . Id. The estate of the captain sued the em ployer com pany of the vessel. Id. Like the present m atter, the em ployer com pany of the Northern Queen was owned jointly by the captain and his m other. Id. The district court held that as both the captain an d the owner of the vessel, and given the facts determ ined at the trial, liability could not attach as to the captain against the em ployer pursuant to the prim ary duty rule. The Ninth Circuit affirm ed the district court’s finding, in a two to one decision, explain ing that the captain/ owner consciously assum ed a duty, could have controlled or elim inated the dangerous situation by navigating away from the storm and that the captain knowingly violated his duty. Northern Queen, 298 F.3d at 10 96. Defendant argues that Northern Queen is dispositive and that the elem ents of the prim ary duty doctrine are satisfied here. 9 Defendant’s argum ent is not without force; however, at this juncture and given the lim ited facts in the record, as well at the fact that expert opinions have not yet been procured, sum m ary judgm ent on this issue is not warranted that this tim e. Unlike the record in Northern Queen, which in cluded trial testim ony and fact finding, the parties are only at the precipice of discovery. Moreover, even though the record before the Court is highly suggestive of satisfaction of the first two elem ents under the prim ary duty rule, there is a question of fact as to whether Walker’s actions or inactions present a m om entary lapse of judgm ent or, as the dissent m akes clear in Northern Queen, rise to the requisite level of awareness of con sciousness of a knowing violation of Walker’s duty. See Bernard v. Maersk Lines, Ltd., 22 F.3d 90 3, 90 7 (9 th Cir. 1994) (The prim ary duty rule “does not apply to a m om entary lapse of care by an otherwise careful seam an.”) Here, sum m ary judgm ent is inappropriate where there is a question of fact as to whether “there [is] evidence of a conscious disregard of the seam an's duties[.]” Northern Queen, 298 F.3d at 10 98. As a result, sum m ary judgm ent is den ied on this basis. 1. Jo n e s Act N e glige n ce Under traditional n egligence principles, the J ones Act, 46 U.S.C. § 210 4, et seq., affords a seam an recovery “for personal in juries suffered in the course of his or her em ploym ent in an action at law[.]”Fasold v. Del. River & Bay Auth., 117 F. App'x 8 36, 8 38 (3d Cir. 20 0 4). The J ones Act requires that em ployers provide the seam an with a safe place to work. Id. The standard is not perfection, as em ployers are only required to guard against risks or dangers which were known, or by the exercise of due care, should have been known. Id. 10 The elem ents of a J ones Act negligen ce claim are duty, breach of duty, notice an d causation. Brogan v. United N.Y. Sandy Hook Pilots= Ass=n, Inc., 213 F. Supp. 2d 432, 435 (D.N.J . 20 0 2). Recovery is perm itted under the J ones Act if the Aem ployer's negligence is the cause, in whole or in part, of [the] injury.@ Id. (citing Ribitzki v. Canm ar Reading & Bates, Ltd., 111 F.3d 658, 662 (9th Cir.1997)). Liability attaches under the J ones Act where an owner has both notice of an unsafe condition an d an opportunity to correct that condition. Colburn v. Bunge Towing, Inc., 8 83 F.2d 372, 374 (5th Cir. 1976). Defendant argues that sum m ary judgm ent is warranted as to this claim because Walker testified in deposition that he did not have prior notice that there was an unsafe con dition on the Vessel. Sum m ary judgm ent is denied on this claim for the following reasons. Walker’s testim ony that he was unaware of the dangerous condition aboard the Vessel is not enough to warrant sum m ary judgm ent. “The standard of care is not what the em ployer subjectively knew, but rather what it objectively knew or should have known.” Colburn, 883 F.2d at 374 (quoting Turner v. Inland Tugs Co., 689 F. Supp. 612, 619 (E.D.La. 1988) (internal quotation om itted). There is a question of fact related to what Walker should have known that precludes sum m ary judgm ent at this tim e. In addition, Walker argues that expert testim ony will shed light on the condition of the Vessel at the tim e of the accident. For this reason, sum m ary judgm ent is den ied. Moreover, the standard of proof for causation is relaxed in claim s m ade under the J ones Act. Id. The Third Circuit has held that A[c]ausation is satisfied if >the proofs justify with reason the conclusion that em ployer negligen ce played any part, even the slightest, in producing the injury . . .=@ Wilburn v. Maritrans GP, Inc., 139 F.3d 350 , 357 (3d Cir.1998) (citing Rogers v. Missouri Pacific R.R. Co., 352 U.S. 50 0 , 50 6 (1957)). 11 This Afeatherweight causation standard@ allows a claim ant to survive sum m ary judgm ent by presenting Aeven the slightest proof of causation.@ Ribitzki, 111 F.3d at 664. The Third Circuit stresses that only in “those extrem ely rare instances” is sum m ary judgm ent appropriate in cases involving seam en. Fasold, 117 Fed. App’x. at 838 (citing Southard v. Independent Towing Co., 453 F.2d 1115, 1118 (3d Cir. 1971)). “Issues of negligence in a J ones Act suit are questions for the jury to determ in e, and the jury plays a preem inent role in J ones Act cases.” Southard, 453 F.2d at 1118 (internal quotations om itted) . Sum m ary judgm ent is denied as to the J ones Act claim . 2. U n s e aw o rth in e s s Walker also alleges that the Vessel was unseaworthy and that he is accordingly entitled to recovery for his personal injury. “[T]he owner of a vessel has an absolute and non-delegable duty to provide a seaworthy ship.” Fasold, 117 Fed. Appx. at 8 38 (citing Mahnich v. S. Steam ship Co., 321 U.S. 96, 10 2 (1944)). “The standard is not perfection, but reasonable fitness; not a ship that will weather every conceivable storm or withstand every im aginable peril of the sea, but a vessel reasonably suitable for her inten ded service.” Brogan v. United N.Y. Sandy Hook Pilots' Ass'n, 213 F. Supp. 2d 432, 438 (D.N.J . 20 0 2) (quoting Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549 (1960 )). There is a genuin e issue of m aterial fact regarding whether or not the Vessel was reasonably fit for its purpose. In addition, given Plaintiff’s assertion that expert testim ony will shed light on this issue, sum m ary judgm ent is prem ature. As a result, Defendant’s m otion is denied. 12 IV. Co n clu s io n For the reasons set forth herein, sum m ary judgm ent is denied. An appropriate Order shall issue. Dated: Decem ber 17, 20 14 s/ J oseph H. Rodriguez HON. J OSEPH H. RODRIGUEZ United States District J udge 13
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