Baklous v. Amtrak

• Decision Date: 27 March 2013
• Docket Number: No. 10–CV–2793.,10–CV–2793.
• Citation: 933 F.Supp.2d 444
• Parties: Nikolas BAKLOUS, Plaintiff, v. AMTRAK and DJMJ–Harris/AECOM, Defendants. AECOM, USA, Inc., f/k/a DMJM–Harris, Inc., s/h/a DJMJM–Harris/AECOM, Third–Party Plaintiff, v. Skanska USA Civil Northeast Inc., f/k/a Slattery Skansa, Inc., Third–Party Defendant.
• Court: U.S. District Court — Eastern District of New York

933 F.Supp.2d 444

Nikolas BAKLOUS, Plaintiff,

v.AMTRAK and DJMJ–Harris/AECOM, Defendants.

AECOM, USA, Inc., f/k/a DMJM–Harris, Inc., s/h/a DJMJM–Harris/AECOM, Third–Party Plaintiff,

v.Skanska USA Civil Northeast Inc., f/k/a Slattery Skansa, Inc., Third–Party Defendant.

No. 10–CV–2793.

United States District Court, E.D. New York.

March 27, 2013.

David H. Mayer, Steven W. Turnbull, Sr., Sacks & Sacks, LLP, New York, NY, for Plaintiff.

Jennifer A. Ramme, Ronald E. Joseph, Landman Corsi Ballaine & Ford P.C., New York, NY, for Defendants, Third–Party Defendant.

Michael Dennis Bosso, Colleran O'Hara & Mills LLP, Garden City, NY, Steven C. Farkas, Colleran, O'Hara & Mills, Garden City, NY, for Defendants, Third–Party Plaintiff.

MEMORANDUM AND ORDER

WILLIAM F. KUNTZ, II, District Judge.

Nikolas Baklous (“Plaintiff”) commenced this action against Defendants AECOM USA, Inc., f/k/a DMJM+Harris, Inc., s/h/a/ DJMJM–HARRIS/AECOM (“AECOM”) and Amtrak, alleging three causes of action for violations of N.Y. Labor Law § 240(1), N.Y. Labor Law § 241(6), and N.Y. Labor Law § 200, as well as one cause of action for common law negligence. Both AECOM and Amtrak filed cross-claims seeking indemnification and/or contribution. Amtrak moves for summary judgment to dismiss all of Plaintiff's claims asserted against it, pursuant to Federal Rule of Civil Procedure 56. AECOM similarly moves for summary judgment to dismiss all of Plaintiff's claims asserted against it, as well as Amtrak's cross-claims. For the reasons stated below, Amtrak's motion for summary judgment is granted in part and denied in part and AECOM's motion for summary judgment is granted in part and denied in part.

I. Undisputed Facts

A. Roles of the Parties

1. General Contractor Skanska

In November 2004, Amtrak entered into a construction contract with Skanska USA Civil Northeast Inc. (“Skanska”) in connection with a project undertaken by Amtrak to upgrade two East River railroad tunnel emergency ventilation facilities in the vicinity of 33rd Street and First Avenue in New York City (the “Ventilation Shaft Project”). Amtrak's Rule 56.1 Statement at ¶ 12 (“Amtrak 56.1 St.”). As general contractor, Skanska provided the labor, supervised and directed the demolition and construction, and controlled the means and methods of the work being performed at the Ventilation Shaft Project. Id. In controlling the means and methods of the work at the Ventilation Shaft Project, Skanska determined what method of demolition would be used, provided the necessary equipment, and assigned the “drill runners” their responsibilities. Id. at ¶ 13. Drill runners use tools such as jackhammers, chippers, and splitters to remove concrete. AECOM's Rule 56.1 Statement at ¶ 30 (“AECOM 56.1 St.”).

Section 61 of Skanska's contract with Amtrak provides: “[The] Contractor shall be solely responsible for providing a safe place for the performance of the [w]ork. Amtrak assumes no responsibility or liability for the physical condition or safety of the work site or any improvements located thereon. Furthermore, Contractor shall be solely responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the [w]ork.” Gaskill Aff., Ex. B at § 61.1.

Skanska foremen conducted daily job briefings with workers, discussing “specific tasks they would be working that day, [and] any specific hazards pertaining to their work.” Amtrak 56.1 St. at ¶ 14. Skanska also provided all personal protective equipment to its employees, including electrically-rated gloves and boots. Id. Because the bedrock surface inside the ventilation shaft was often damp or wet, slippery surfaces could exist in the shaft. Id. at ¶ 15. As such, Skanska took measures to mitigate any risks posed by the water and silica materials. Id.

2. Construction Manager AECOM

On November 12, 2003, Amtrak entered into a services contract with AECOM wherein AECOM agreed to provide construction management services for the Ventilation Shaft Project. Id. at ¶ 16. The contract stated that AECOM “shall act as Amtrak's agent with respect to the [Construction Manager's] Safety Responsibilities under the Contract.” Gaskill Aff., Ex. A at § 3.1.5. As to the scope of AECOM's safety responsibilities, AECOM agreed to “provide and be responsible for the requisite management, oversight, coordination and expedition of the construction processes” and to assign a Safety Engineer “who shall have full authority to act on behalf of [AECOM] at all times to periodically monitor that all construction work is being performed in accordance with standard industry practices and with Amtrak, State and Federal Laws regulating job site safety.” Id. at §§ 2.3, 3.1.5.

Notably, AECOM's contract with Amtrak originally included a provision holding AECOM responsible for oversight of the project safety program during construction; however, both AECOM and Amtrak agreed to delete the provision from the section of the contract dealing with AECOM's project responsibilities. Id. at § 2.3.2.

As the Construction Manager, AECOM reviewed Skanska's Site Safety Plan and later recommended the Plan for approval to Amtrak. AECOM 56.1 St. at ¶ 22. The AECOM Site Safety Engineer monitored the Ventilation Shaft Project to see that Skanska was performing its work within the guidelines set forth in the Site Safety Plan. Id. at ¶ 24.

AECOM's Site Safety Engineer was on site daily to inspect the worksite. Amtrak 56.1 St. at ¶ 17. When not physically present at the site, the Safety Engineer was in his office completing reports or attending to other safety engineering duties. Id. The AECOM Site Safety Engineer was responsible for making sure that “whatever activity was ongoing was ongoing in a safe manner.” Id. If the AECOM Site Safety Engineer noticed a safety violation at the project, he notified the Skanska Safety Engineer or Superintendent. Id. If an AECOM employee noticed a Skanska employee was in imminent danger, AECOM had the authority to stop work on the project. Id.

3. Owner Amtrak

Amtrak conducted a general Safety Briefing at the start of each work day at the Ventilation Shaft Project, but never provided any direction to Skanska employees. Id. at ¶ 18. The primary job of the Amtrak inspectors, who did not exercise any technical expertise other than with regard to electrical grounding, was to protect the railroad and insure that Skanska's work did not impede movement of Amtrak trains. Id.

4. Plaintiff

Plaintiff was employed by Skanska as a drill runner at the Amtrak Ventilation Shaft Project. Id. at ¶ 19. Each morning, Plaintiff reported to his Skanska foreman upon arrival at the job site to receive work instructions. Id. at ¶ 20. No other entity besides Skanska instructed Plaintiff regarding his work responsibilities at the Ventilation Shaft Project. Id. at ¶ 21.

B. Plaintiff's Accident

On August 17, 2009, Plaintiff was working on a Skanska crew at the Ventilation Shaft Project and was operating a 90 lb. pneumatic jackhammer in Ventilation Shaft Four. Id. at ¶ 23. Plaintiff received instructions from his Skanska foreman to excavate the bedrock at the bottom of the shaft, which entailed chipping at the bedrock in order to progressively lower the bedrock. Id. at ¶ 22. On the date of the accident giving rise to this action, Plaintiff was wearing personal protective equipment provided by Skanska, including work boots, overboots, and gloves. Id. at ¶ 24. Plaintiff was breaking the bedrock, progressively lowering it, causing the debris to fall into an adjacent four-and-a-half foot “trough” or “keyway” or “depression.” Id. at ¶¶ 25–28. There were two laborers in the keyway, removing the debris. Id. at ¶ 28.

Because water accumulated in the ventilation shafts, the bedrock was sometimes wet and could become slippery. Bosso Aff., Ex. N at 80:2–81:3; Ex. M at 92:17–92:22; Ex. O at 52:3–15, 67:23–70:1. On August 17, 2009, Plaintiff was wearing rubber, knee-high overboots over his regular work boots. Pl.'s Rule 56.1 Statement of Disputed Facts (AECOM) at ¶ 2 (“Pl.'s 56.1 St. (AECOM)”). ¹ The rubber overboots Plaintiff wore that day were loose fitting, making it difficult to get a sure footing on the wet and slippery surface. ² Baklous Aff., ¶ 2.

As Plaintiff was chipping the bedrock near the edge of the trough, the bedrock “gave away,” causing the jackhammer to “[get] away” from him. Id. at ¶ 29–30. Plaintiff acknowledges that the entire purpose of using the jackhammer is to break up the rock. Pl.'s 56.1 Counterstatement (AECOM) at ¶ 31. As such, it was not unusual for the bedrock to crumble and give way beneath him. Pl.'s 56.1 Counterstatement (Amtrak) at ¶ 30. The weight and force of the jackhammer pulled Plaintiff down, causing Plaintiff to drop to one knee and injure his back. AECOM 56.1 St. at ¶ 1. When the jackhammer lurched forward, Plaintiff tried to plant his right foot and stop the jackhammer's momentum, but he was unable to gain a sure foothold because of the slipperiness of the surface. Baklous Aff., at ¶ 2. Normally, Plaintiff would have let go of the jackhammer as it moved out of his control, but Plaintiff held on because he feared the jackhammer would strike and impale one of the workers in the trough. Pl.'s 56.1 Counterstatement (Amtrak) at ¶ 29.

After the accident, Plaintiff continued working and rode his motorcycle home from work. Id. at ¶ 32. Plaintiff did not seek medical treatment until the next day, when he visited a chiropractor who told him he had a bad sprain and issued him a back brace to wear while working. Id. at ¶ 33. Plaintiff did not file an incident report until August 19, 2009—two days after the incident. Id. at ¶ 34. The incident report states that the accident occurred when Plaintiff was “chopping out duct bank the gun slipped and [Plaintiff] felt something in his back.” AECOM 56.1 St. at ¶ 34.

C. Procedural History

On May 24, 2010, Plaintiff commenced this action against Amtrak by filing a Summons and Complaint in the Supreme Court of New...