Dung Nguyen v. Morrison Healthcare

• Decision Date: 29 March 2018
• Docket Number: 16-cv-1351 (LDH)(PK).
• Citation: 412 F.Supp.3d 196
• Parties: DUNG NGUYEN and Ngoc-Anh Vu, Plaintiffs, v. MORRISON HEALTHCARE, Defendant.
• Court: U.S. District Court — Eastern District of New York

412 F.Supp.3d 196

DUNG NGUYEN and Ngoc-Anh Vu, Plaintiffs,

v.MORRISON HEALTHCARE, Defendant.

16-cv-1351 (LDH)(PK).

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

Signed March 29, 2018

Glen Devora, Jonathan D'Agostino & Associates, P.C., Staten Island, NY, for Plaintiffs.

Anthony Rey Martinez, Shook Hardy & Bacon, Kansas City, MO, William Edward Vita, Westerman Ball Ederer Miller & Sharfstein, LLP, Uniondale, NY, for Defendant.

MEMORANDUM OF DECISION AND ORDER

LaSHANN DeARCY HALL, United States District Judge

Plaintiff Dung Nguyen brings this action against Defendant Morrison Healthcare ("Morrison") alleging a claim for negligence related to a trip and fall. (Compl., ECF No. 1-1.) Plaintiff Ngoc-Anh Vu brings a claim for loss of society, services, and consortium. (Id. ) Defendant moves pursuant to Federal Rule of Civil Procedure 56 for summary judgment as to both claims.

UNDISPUTED FACTS¹

On January 1, 2010, Defendant Morrison entered into an agreement with Staten Island University Hospital (the "Hospital") to "exclusively provide the Services for the Hospital's food services program ... and Food and Nutrition Services Department" with Morrison "provid[ing] the Services on the Hospital's behalf as the Hospital's agent" (the "Agreement"). (Def.'s 56.1 Statement ¶ 2, ECF No. 20-3; Def.'s Ex. B ¶ 1.1(a), ECF No. 20-5.) The term "Services" is defined under the Agreement as "the supervision of the food services at the Facility and catered events, as exclusively provided to Hospital by Morrison under this Agreement ...." (Def.'s Ex. B ¶ 10.7.) Under the Agreement, Morrison was obligated to provide management personnel for the Hospital's food and nutrition department. (Def.'s Ex. B ¶ 1.2(a).) In addition to management personnel, the Agreement called for hourly personnel, which the Hospital, as opposed to Morrison, had the sole authority to hire, employ, and terminate. (Def.'s 56.1 Statement ¶¶ 5-8.) Specifically, with regard to hourly personnel, the Agreement provided:

[A]ll hourly personnel of the Program and the Department who work at the Facility (the "Hourly Personnel") will be carried as part of the Hospital's payroll, and all expenses in connection with the Hourly Personnel shall be paid by the Hospital. The Hospital shall be responsible for all costs related to the Hourly Personnel, including all wages and associated payroll costs such as payroll taxes, insurance and fringe benefits.

(Def.'s Ex. B ¶ 1.2(b).) Consistent with this provision, the Hospital recruited all food services employees, performed background checks, hired the food services employees, and managed all payroll functions. (Id. ¶¶ 6-7.) Morrison did not have the authority to fire hourly personnel. (Id. ¶ 8.)

With regard to Morrison management personnel, the Hospital could request the removal of any individual and, under the Agreement's terms, Morrison was required to comply with the request "provided such request [wa]s lawful, reasonably justified in writing, and Morrison [wa]s first given an opportunity to respond and address such issues consistent with th[e] Agreement." (Id. ¶ 9.; Def.'s Ex. B ¶ 1.2(a).) Morrison was required to follow all applicable Hospital policies and procedures and comply with Hospital training requirements. (Id. ¶ 10.)

The Hospital was responsible for both supplying the facility Morrison used to provide its services and for ensuring that the facility was "equipped and furnished." (Def.'s Ex. B ¶ 1.4(a).) Specifically, the Agreement provided:

The Hospital will ensure that the Facility (including the kitchen) is in good, clean, sanitary, working condition, as of the beginning of Morrison's Services. The Hospital will maintain the Facility and all items furnished by the Hospital (the "Property") in accordance with Applicable Law, and make all repairs or replacements to the Facility and Property at its expense, except that Morrison shall be responsible for damage to the same caused by the gross negligence of Morrison's employees.

(Id. ) The Hospital also bore the risks associated with costs and losses connected to the operation of the food and nutrition department, "including but not limited to payroll costs, Morrison's fees and charges, and all food, labor, supply and other standard costs." (Id. at ¶ 2.2(c).)

Plaintiff Nguyen was employed by the Hospital as an hourly cafeteria worker. (Def.'s 56.1 Statement ¶¶ 1, 4; Def.'s Ex. A at 9:11-24, ECF No. 20-4.) On June 26, 2014, Plaintiff Nguyen was injured at work when he tripped over an electrical wire routed from three warming tables. (Def.'s 56.1 Statement ¶ 4; Def.'s Ex. A at 37:11-38:16.) At the time of his injury, Plaintiff Nguyen was not aware of the contract between Morrison and the Hospital. (Def.'s 56.1 Statement ¶ 3.)

Morrison did not own the food service equipment, including the warming tables that allegedly caused Plaintiff Nguyen's trip and fall. (Id. ¶ 12.) Morrison could not move the warming tables, as such removal would have required the Hospital's engineers to relocate the electrical panels, which Morrison lacked authority or ability to do. (Id. ¶ 13.) As such, it fell to the Hospital to remove the warming tables. (Id. ¶ 14.)

STANDARD OF REVIEW

Summary judgment must be granted when there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; accord Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine dispute of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson , 477 U.S. at 248, 106 S.Ct. 2505. At summary judgment, the movant bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Feingold v. New York , 366 F.3d 138, 148 (2d Cir. 2004). Where the non-movants bear the burden of proof at trial, the movant's initial burden at summary judgment can be met by pointing to a lack of evidence supporting the non-movants' claim. Celotex Corp. , 477 U.S. at 325, 106 S.Ct. 2548.

Once the movant meets that burden, the non-movants may defeat summary judgment only by producing evidence of specific facts that raise a genuine issue for trial. See Fed. R. Civ. P. 56(c) ; Anderson , 477 U.S. at 248, 106 S.Ct. 2505 ; Davis v. New York , 316 F.3d 93, 100 (2d Cir. 2002). The court is to view all such facts in the light most favorable to the non-movants, drawing all reasonable inferences in his or her favor. Anderson , 477 U.S. at 255, 106 S.Ct. 2505. To survive summary judgment, the non-movants must present concrete evidence and rely on more than conclusory or speculative claims. Quinn v. Syracuse Model Neighborhood Corp. , 613 F.2d 438, 445 (2d Cir. 1980) ("The litigant opposing summary judgment ... ‘may not rest upon mere conclusory allegations or denials’ as a vehicle for obtaining a trial.").

DISCUSSION

I. Negligence

To prevail on a negligence claim under New York law,² a plaintiff must establish: "(1) the existence of a duty on defendant's part as to plaintiff; (2) a breach of this duty; and (3) injury to the plaintiff as a result thereof." Alfaro v. Wal-Mart Stores, Inc. , 210 F.3d 111, 114 (2d Cir. 2000) (quoting Akins v. Glens Falls City Sch. Dist. , 53 N.Y.2d 325, 333, 441 N.Y.S.2d 644, 424 N.E.2d 531 (1981) ). "The existence of a duty is thus a sine qua non of a negligence claim: In the absence of a duty, as a matter of law, no liability can ensue." Id. (quoting McCarthy v. Olin Corp. , 119 F.3d 148, 156 (2d Cir. 1997) (internal quotation marks omitted)). Whether such a duty of care exists and the scope of that duty is a question of law for the court to determine. Id. ; see also In re Lake George Tort Claims , 461 Fed.Appx. 39, 40 (2d Cir. 2012) ("The existence and scope of an alleged tortfeasor's duty is, in the first instance, a legal question for determination by the courts." (quoting Sanchez v. State of New York , 99 N.Y.2d 247, 252, 754 N.Y.S.2d 621, 784 N.E.2d 675 (2002) )).

Defendant argues as a threshold matter that Plaintiff Nguyen cannot establish a duty because the contract between Defendant and the Hospital did not give rise to a duty of care flowing from Defendant to Plaintiff Nguyen. Plaintiff Nguyen was not an employee of Morrison, and Morrison neither owned nor leased the kitchen or the equipment located in the kitchen, where Plaintiff was injured. (Def.'s 56.1 Statement ¶¶ 1, 4, 11-12.) Therefore, to the extent any duty of care was owed by Defendant, such a duty would have to stem from Defendant's contract with the Hospital at which Plaintiff Nguyen was employed. Connolly v. Chemtreat, Inc. , No. 14-cv-2121, 2016 WL 126379, at *4 (E.D.N.Y. Jan. 11, 2016) (finding that where there was no general duty owed to the plaintiff because he was not an employee or contractor of the defendant and the defendant did not own or operate the place where plaintiff was injured, that any duty owed to the plaintiff must arise from the defendant's contract with the plaintiff's employer or other "special circumstances"); Gonzalez v. Aramark Food & Support Servs. Grp. Inc. , No. 09-cv-4843, 2012 WL 1019982, at *4 (E.D.N.Y. Mar. 26, 2012) ("Because Aramark owes no general duty to keep Gonzalez safe from tripping hazards, any duty they may have had arose from Aramark's food services contract with Lutheran.").

Under New York law, "a contractor generally does not owe an independent tort duty of care to a non-contracting third party." Guzman v. Wackenhut Corp. , 394 Fed.Appx. 801, 803 (2d Cir. 2010) (summary order) (citing Espinal v. Melville Snow Contractors Inc. , 98 N.Y.2d 136, 138-139, 746 N.Y.S.2d 120, 773 N.E.2d 485 (2002)). However, as established in Espinal v. Melville Snow Contractors Inc. , there are three exceptions under which a duty of care to a non-contracting third party may arise out of a contractual obligation: "(1) where the contracting party, in failing to...