Eastern Airlines v. JOSEPH GUIDA & SONS TRUCKING

• Decision Date: 30 November 1987
• Docket Number: No. 84 CV 3000.,84 CV 3000.
• Citation: 675 F. Supp. 1391
• Parties: EASTERN AIRLINES, Plaintiff, v. JOSEPH GUIDA & SONS TRUCKING CO., INC., et al., Defendants, and Third Party Actions.
• Court: U.S. District Court — Eastern District of New York

675 F. Supp. 1391

EASTERN AIRLINES, Plaintiff, v. JOSEPH GUIDA & SONS TRUCKING CO., INC., et al., Defendants, and Third Party Actions.

No. 84 CV 3000.

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

November 30, 1987.

Rivkin, Radler, Dunn & Bayh, New York City, for Bermudez Contracting Corp.

Gladstein & Issac, New York City, for Lizza Industries.

Newman, Schlau, Fitch & Burns, New York City, for Joseph Guida & Sons Trucking, Inc.

MEMORANDUM AND ORDER

McLAUGHLIN, District Judge.

On August 12, 1987, the Court received the annexed Report and Recommendation ("Report") of the Honorable A. Simon Chrein, United States Magistrate. None of the parties to the motions have filed written objections pursuant to 28 U.S.C. § 636(b)(1); Local R.Mag.P. 7. After a thorough review of the motion papers and the Report, I hereby adopt the Report as the opinion of this Court.

SO ORDERED.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE

August 12, 1987.

A. SIMON CHREIN, United States Magistrate.

This action was referred to the undersigned by the Honorable Joseph M. McLaughlin to hear and report on the defendant Bermudez Contracting Corp's (Bermudez) and defendant Shore, Sand and Gravel Co., Inc.'s (Shore Sand) motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure and defendant Shore Sand's motion for costs and sanctions pursuant to Federal Rule 11 against defendant Joseph Guida & Sons Trucking Co., Inc. (Guida).

Procedural History

This is an action by Eastern Airlines, Inc. against Lizza Industries, Inc. (Lizza), a contractor hired to do construction work at LaGuardia Airport, Lizza's subcontractor Bermudez, a landscaping company hired to landscape the same construction site and Guida, a trucking company hired to transport topsoil to the site, for damages to its airplane which occurred when a truck driven by Mr. Anthony Guida, an employee of defendant Guida, came in contact with the plaintiff's airplane at LaGuardia Airport. See Complaint.

Defendant Bermudez generally denied all the material allegations and cross claimed against the defendants Guida and Lizza. See Answer and Cross Complaint of Bermudez dated September 19, 1984.

Defendant Guida, in its answer, asserted claims against defendants Bermudez and Lizza for contribution or indemnification. See Answer of Defendant Guida at ¶ 12. Bermudez generally denied these claims. See Answer to Cross Claim by Bermudez dated December 19, 1984.

Defendant Guida then asserted third party claims against the Port Authority, D.P. S. Protective Systems, Inc. (D.P.S.) and Shore Sand for contribution and indemnification. See Second Third Party Complaint of Guida dated December 6, 1984. In response, third party defendant Shore Sand claimed that on the basis of indemnity or contribution, the co-defendants should be found liable for all or part of the judgment. See Answer to Third-Party Complaint of Shore Sand dated March 19, 1985 at ¶¶ 5, 6.

Plaintiff subsequently amended its complaint to include Shore Sand, D.P.S. and the Port Authority as defendants. See Amended Complaint of Eastern Airlines, Inc. dated May 9, 1985. The complaint with regard to defendant Shore Sand claimed that Shore Sand was an agent with respect to the landscaping project, controlled the activities of Guida and its employees, and, thus, was vicariously responsible for the damages suffered by plaintiff. Id. at ¶¶ 28, 29, 30.

Plaintiff then agreed to discontinue its action against defendants Bermudez and Shore Sand, although defendant Guida refused to discontinue its own action against them. See Plaintiff's Stipulation Discontinuing Action Against Co-Defendant Bermudez dated August 22, 1986; Plaintiff's Stipulation Discontinuing Action Against Co-Defendant Shore Sand dated August 22, 1986; Affidavit of Richard L. Newman in Opposition dated December 11, 1986 (Newman Affidavit); Affidavit of Jan Kevin Myers in Opposition dated December 24, 1986 (Myers Affidavit). Consequently, defendants Shore Sand and Bermudez have submitted motions for summary judgment and defendant Shore Sand has additionally moved for Rule 11 sanctions against defendant Guida.

Facts

Plaintiff Eastern Airlines alleges that it sustained damages when a truck driven by an employee of defendant Guida collided with one of plaintiff's airplanes parked at LaGuardia Airport. See Newman Affidavit at ¶ 3.

Defendant Lizza had been hired to perform construction work at night on one of LaGuardia Airport's runways. Id. Lizza subsequently subcontracted landscaping work at the construction site to defendant Bermudez. Id. Defendant Bermudez, in turn, subcontracted with defendant Shore Sand to obtain topsoil for the landscaping work. Id. Shore Sand then made an oral contract with defendant Guida in which defendant Guida agreed to deliver two loads of topsoil from Shore Sand's facility in Melville, New York to the construction site at the airport. Id. Mr. Anthony Guida, an employee of defendant Guida, was delivering the topsoil pursuant to this contract when his truck collided with the plaintiff's airplane. Id.

The defendant Guida contends that defendant Shore Sand instructed it to have its trucks follow a lead truck dispatched by defendant Shore Sand. Id. at ¶ 6. This convoy of trucks would be guided by the lead truck to the airport, onto the correct runway and to the construction site. Id. Defendant Guida further alleges that the first truckload of topsoil was delivered to the construction site in this manner and that it followed the lead truck into and out of the airport. Id. After the first load of topsoil was unloaded and the trucks safely left the airport, the convoy broke up and the trucks were left to return on their own. Id; Deposition of Anthony Guida dated October 31, 1985 (Guida Deposition) at p. 11. Mr. Guida returned to defendant Shore Sand's Melville facility, loaded his truck again and headed for the airport to drop off the second load of topsoil. Guida Deposition at p. 14. Mr. Guida alleges that he was not able to find defendant Shore Sand's lead truck but found his way to the construction site unaided. Id. at p. 15.

After delivering this second load of topsoil and attempting to leave the airport, however, Mr. Guida became lost. Newman Affidavit at ¶ 3. He claims that although he asked for directions from a guard employed by defendant DPS stationed on the runway, the guard misdirected him and caused him to collide with plaintiff's airplane. Id. The plane was located approximately 300 to 400 yards from the construction site and between 30 and 40 feet from the roadway which defendant Guida's trucks used during the first delivery. Newman Affidavit at ¶ 9.

It is undisputed that defendant Bermudez and defendant Shore Sand did not hire the security guard service (DPS) which employed the guard who defendant Guida alleges misdirected him. See Newman Affidavit at ¶ 3. Defendant Guida alleges however, that defendant Shore Sand formed and organized the convoy of trucks and assured defendant Guida that it would be provided with means of safe ingress and egress from the airport when the convoy arrived with the first delivery and on subsequent trips. Id. Therefore, defendant Guida alleges that Shore Sand undertook to direct and control the method and manner in which Guida performed making it strictly liable for any negligence by defendant Guida.

In addition, defendant Guida alleges that defendant Bermudez' employees undertook to sign the drivers' tickets for the deliveries and direct the truckers to where they would unload the topsoil also directing and controlling the manner in which Guida performed. Guida Deposition at pp. 18-19. Defendant Guida further contends that after its driver dumped the second load he asked a Bermudez employee for instructions as to how to leave the airport. This employee was unable to provide the requested information and Mr. Guida then obtained instructions from the DPS guard. Id. at p. 19.

The defendant Guida, therefore, contends that if it is found negligent in causing the accident, that both defendant Bermudez and defendant Shore Sand are liable for contribution or indemnification based on their negligence, breach of warranty, breach of contract and strict liability. See Answer at ¶ 12; Third Party Complaint of Guida Against DPS and Shore Sand at ¶ 6. These claims are based on defendant Guida's allegations that defendants Shore Sand and Bermudez undertook to guide, direct and control the defendant Guida's ingress and egress to and from the airport, see Myers Affidavit at ¶¶ 7, 10; Newman Affidavit at ¶ 14, and that the inherently dangerous nature of this activity (night time construction work near the runway of a busy airport) causes both defendants Bermudez and Shore Sand to be strictly liable. See Myers Affidavit at ¶ 12; Newman Affidavit at ¶¶ 7, 11.

Defendant Shore Sand denies these allegations and maintains that it did not control the manner in which defendant Guida delivered the topsoil. See Affidavit of Alan Wyle in Support of Defendant Shore Sand's Motion for Summary Judgment dated November 25, 1986 (Shore Sand Affidavit) at p. 7. It asserts that defendant Guida admitted its negligence in the driver's deposition and that there is no basis to impute this negligence to defendant Shore Sand. Id.

Defendant Bermudez also denies the defendant Guida's allegations, and asserts that it had nothing to do with directing the defendant Guida into or out of the airport and therefore contends that there is no basis for liability. Bermudez Affidavit at p. 6.

Based on the following analysis, the undersigned recommends that summary judgment be denied to defendant Shore Sand, granted to defendant Bermudez and that defendant Shore Sand's motion for sanctions be denied.

Discussion

I. Standards for Summary Judgment

Federal Rule of Civil Procedure 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, deposition, answers to interrogatories, and admissions on...