Martin v. Matt Canestrale Contracting, Inc.
| Decision Date | 16 September 2009 |
| Docket Number | Civil Action No. 08-303. |
| Citation | 658 F.Supp.2d 668 |
| Parties | Diane M. MARTIN individually and Administratix of the Estate of Blaine Martin, Deceased, Plaintiff, v. MATT CANESTRALE CONTRACTING, INC. in its own right and as owner of the Motor Vessel Mini 2 and her fleet or flotilla of barges, and as owner or owner pro hac vice of an empty, jumbo open hopper barge, Defendant. |
| Court | U.S. District Court — Western District of Pennsylvania |
Stephen P. Moschetta, The Moschetta Law Firm, P.C., Washington, PA, for Plaintiff.
E. Richard Ogrodowski, Frederick B. Goldsmith, Goldsmith & Ogrodowski, Pittsburgh, PA, for Defendant.
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 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 (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 Canestrale 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 (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 spud1 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 ...
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