The opinion of the court was delivered by: STERLING JOHNSON, JR.
Plaintiff, Richard Sala, is a dockbuilder who was injured while working for Defendant, Gates Construction Corp., on a crane barge. Plaintiff has brought this action under Section 33 of the Merchant Seamen's Act of 1920, which is known as the Jones Act and, alternatively, Section 905(b) of the Longshore and Harbor Worker's Compensation Act ("LHWCA"). Defendant has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, or in the alternative, for dismissal.
Plaintiff, a dockbuilder, was injured on December 12, 1989 at Defendant's work site in Brooklyn, New York. Prior to his injury, Plaintiff had been employed by Defendant for two and a half years where his duties were exclusively in dock building. Pl. Dep. at 11, 16-17. Plaintiff had been employed as a dockbuilder for the previous twenty years by a corporation named Steers. Pl. Dep. at 11.
On December 12, 1989, Plaintiff was working on the rehabilitation of a dock owned by the New York City Department of Sanitation. Pl. Dep. at 17-18; 3(g) Statements of Pl. and Def. Two barges were brought by Defendant to the job site to support a crane and materials needed in repairing the bulkhead. These barges floated on the water; the crane barge was secured by anchors and the materials barge was secured by lines to the crane barge. 3(g) Statements of Pl. and Def. Each barge was equipped with life rings and navigational lights; however, neither barge could move under its own power but rather, had to be put in position by a tugboat.
Plaintiff was an employee of the Defendant's and worked as part of a group of dockbuilders assigned to rehabilitate the bulkhead. Plaintiff arrived to work by car and walked over a gangway to the barges. Pl. Dep. at 59; 3(g) Statement of Pl. Each dockbuilder wore a life jacket while working on the barges. 3(g) Statement of Pl. When it was necessary to move the barges, the workmen left the barges until they were secured to position. Pl. Dep. at 56, 59-60.
On December 12, 1989, Plaintiff was preparing timbers to be hooked up to the crane to be moved into position to construct a fender system. This involved tying a 3/4-inch sling around the end of the timber so that it could be lifted and a "sleeper" placed beneath it so that another sling could be placed on the timber enabling the crane to lift and move the timber. Pl. Dep. at 18, 19, 24-27. Immediately prior to being injured, Plaintiff was on the materials barge directing the lifting of a timber by the crane. During this hoisting process, a timber struck the Plaintiff in the head. Pl. Dep. at 24-27. At no time during the hoisting or that entire day was the barge in motion. Pl. Dep. at 20, 53.
Medical attention was immediately sought for Plaintiff and it was determined that he had suffered a fractured skull and jaw. Pl. Dep. at 50. Plaintiff has been unable to return to work due to continued dizziness, disorientation, and hearing loss. Pl. Dep. at 42-52. Plaintiff alleges that he cannot drive and that he cannot return to his job because, given the jobs physical requirements, the dizziness and disorientation could put him at risk. Id.
I. Standard for Summary Judgment
A motion for summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A court's function is not to resolve disputed issues of fact, but only to determine whether there is a genuine issue to be tried. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Eastman Machine Co. v. United States, 841 F.2d 469 (2d Cir. 1988). No genuine issue exists
unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly ...