Gwendolyn Gray v. Wackenhut Serv.
| Decision Date | 25 June 2010 |
| Docket Number | No. 08 Civ. 3233.,08 Civ. 3233. |
| Citation | 721 F.Supp.2d 282 |
| Parties | Gwendolyn GRAY, Plaintiff, v. WACKENHUT SERVICES, INCORPORATED, Alutiiq Security & Technology, LLC and Afognak Native Corporation, Defendants. |
| Court | U.S. District Court — Southern District of New York |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
Finkelstein & Partners, LLP, by: George A. Kohl, Esq., Newburgh, NY, for Plaintiff.
Ahmuty, Demers & McManus, Esqs., by: Frank J. Pecorelli, Jr., Esq., Albertson, NY, for Defendant Wackenhut Services, Incorporated.
Lester Schwab Katz & Dwyer, LLP, by: John Sandercock, Esq., New York, NY, for Defendants Alutiiq Security and Technology, LLC and Afognak Native Corporation.
The defendants Wackenhut Services, Incorporated (“Wackenhut”), Alutiiq Security and Technology, LLC (“Alutiiq”) and Afognak Native Corporation (“Afognak”) (collectively, the “Defendants”) have moved under Rule 56(b), Fed.R.Civ.P., to dismiss the complaint of Gwendolyn Gray (“Gray” or the “Plaintiff”) seeking damages for personal injury she suffered when the car she was driving struck the steel plate barrier which barred access to the United States Military Academy at West Point (“West Point”). Upon the findings and conclusions set forth below, the motion is granted, and the complaint dismissed.
On April 1, 2008, Gray filed her complaint against the United States and the Defendants arising out of the accident which occurred at West Point on May 18, 2005.
The United States moved to dismiss the complaint and by stipulation and order of October 2, 2008, the United States was dismissed as a defendant.
The instant motion was heard and marked fully submitted on January 20, 2010.
The facts have been set forth in the Defendants' Statements pursuant to Local Rule 56.1 and the Plaintiff's Response and Addendum. The facts are not in dispute except as set forth below.
In 2005, at the United States Military Academy at West Point, hydraulically operated barriers limited vehicular access to certain portions of the post (Bishop tr. 9-11). The barriers consisted of steel plates that, when in the up position, blocked the roadway and prevented vehicles from proceeding forward.
The barrier was operated by security guards employed by Alutiiq/Wackenhut, a joint venture retained by the Department of the Army to provide security services at West Point. The joint venture was 51% controlled by Alutiiq and 4 9% controlled by Wackenhut. Individual security guards were employed by either Alutiiq or Wackenhut, and not by the joint venture (Berrios tr. 34).
A valid ID and a special vehicle pass were required to pass through the gate (Bishop tr. 12; Gray tr. 68-69).
After a vehicle stopped at the barrier, the security guard on duty would check the identification of the occupants of the vehicle (Gray tr. 68; Maldonado tr. 26-27).
The guard in the guard shack would lower the steel barrier to allow the vehicle to pass. According to Gray, the guard would generally tell the driver of the vehicle to proceed and wave his hand to indicate one could proceed. (Stewart, tr. 12; Gray tr. 84-85; Maldonado tr. 26-27);
In 2005, in order to get into the section of the post where her office was located, Gray had to pass through the Arvin Gym Gate (Gray tr. 56-57). She passed through that gate daily and was familiar with the procedures in place (Gray tr. 67-70). The barrier was always up when she approached it (Gray tr. 83).
The barrier at the Arvin Gym was sometimes operated by one guard (Bishop tr. 15; Maldonado tr. 26-27). If one of the guards was on a meal break or a bathroom break, the remaining guard would check the IDs and lower the barrier (Maldonado tr. 29-30). The guard would check the IDs from the driver's side, let the driver know that the ID was good, walk around the back of the vehicle until he reached the guard shack, enter the guard shack and hold the button to lower the steel barrier (Bishop tr. 17; Maldonado tr. 32). According to Gray, one of the guards testified that he would go around the front of the shack (Bishop tr. 21).
Lowering the barrier took less than 30 seconds (Maldonado tr. 32; Bishop tr. 20). The barrier made a mechanical noise as it was being lowered (Bishop tr. 68; Maldonado tr. 32-33). The steel plate made a crashing metallic sound, a “slap”, or a “slam” when it reached the ground (Stewart tr. 16; Bishop tr. 17; Maldonado tr. 32). According to Gray the barrier made a “grinding type noise” which stopped when the barrier was up or down (Gray tr. 88, 90).
The security guards received their gate training from the military police (Bishop tr. 9; Maldonado tr. 9-10, 24; Award/Contract at ¶ C.6.3). Employees of the United States government were responsible for the maintenance and repair of the barrier system, including the traffic lights (Maldonado tr. 24-25, 58; Award/Contract at 1 C.3.4).
On May 18, 2005, Gray was employed as a supply technician at the United States Military Academy at West Point, N.Y. (Gray tr. 11).
Pedro Maldonado (“Maldonado”), an Alutiiq employee, and Roland Bishop (“Bishop”), a Wackenhut employee, were operating the checkpoint on May 18, 2005 (Bishop tr. 6; Maldonado tr. 37, 62-63). According to Defendants, Maldonado was the only security officer working the gate when Gray's vehicle approached the barrier (Gray tr. 85-86). Bishop was either in the guard shack (Gray tr. 86, 89-90) or taking a restroom break (Maldonado tr. 50). According to Gray, both were operating the checkpoint when she approached. (Gray tr. 86-87, 89, 100; Stewart tr. 15-27, 29, 34).
Gray approached the gate in her automobile, a 1999 Lincoln Continental, with a passenger, co-worker Pamela Brown (now Pamela Stewart), around 8:00 a.m. (Stewart tr. 20; Gray tr. 17-19).
Gray stopped her vehicle about five feet in front of the barrier (Maldonado tr. 45), which was in the up position. The barrier was visible from the front seat of the car (Stewart tr. 27; Gray tr. 85).
According to Defendants, Maldonado checked the identification cards presented by Gray and Brown from the driver's side of the vehicle and told them that their IDs were good (Maldonado tr. 51, 60). According to Gray, Maldonado said “okay, Gwen you can go.” Bishop yelled from the guard house “They can go.” The signal lights were not working. (Gray tr. 80, 91, 92, Stewart tr. 24, 34).
Maldonado testified that he walked around the rear of the vehicle toward the guard shack to lower the barrier (Maldonado tr. 51). According to Gray, Maldonado was still standing next to the driver's side window when Gray took her foot off the brake and put it on the gas to proceed (Gray tr. 96). Bishop was in the guard shack, and must have been the guard that lowered the barrier, because Maldonado was near the Plaintiff's car, while the barrier was being lowered (Gray tr. 86, 87, 89, 96, 100; Stewart tr. 29, 34).
When Gray stepped on the gas, she simultaneously heard the guard yell “stop” as the front of her vehicle came into contact with the metal barrier (Gray tr. 96-97).
Maldonado had reached the passenger side rear fender of the vehicle when it lurched forward and struck the barrier (Gray tr. 96; Maldonado tr. 51-52). According to Maldonado, he was not in the guard shack when the vehicle struck the barrier, and had not started to lower the barrier (Maldonado tr. 51-52, 60). Gray has denied that Maldonado was standing by the passenger side rear fender of her vehicle when it struck the barrier (Gray tr. 96), but she admitted that Maldonado was not in or near the guard shack when her vehicle struck the barrier and that Maldonado had not started to lower the barrier. She has denied that the barrier was not in the process of being lowered at the time her vehicle struck it (Gray tr. 26, 93, 94; Stewart tr. 29, 32, 33, 36) Stewart testified that she heard the mechanical sound ordinarily made by the barrier when it was going down, when the Plaintiff was told that she was “good to go” or “okay to go” (Stewart tr. 31, 32, 33).
Bishop did not witness the accident, but heard a “crunch” and did not hear the hydraulic machinery in operation before the crunch (Bishop tr. 72-73). Gray has denied that the hydraulic machinery was not in operation when Gray struck the barrier. (Gray tr. 26, 93, 94). Stewart heard the noise of the barrier after Gray was told to go through and saw the barrier going down (Stewart tr. 3-33). According to Stewart, Gray's passenger, she did not hear the noise of the gate after the guard told Gray to go (Stewart tr. 31, 32).
The barrier continued to function normally following the accident and was used for the remainder of the day (Bishop tr. 35, Maldonado tr. 57-58, 59).
Gray initially filed suit against the United States Government, along with the remaining named Defendants, pursuant to 28 U.S.C. § 1346(b). Supplemental jurisdiction over these defendants is appropriate even after the dismissal of the claims brought against the United States, pursuant to 28 U.S.C. § 1367(a), et seq. Moreover, jurisdiction exists over this matter pursuant to 28 U.S.C. 1332(a), as there is complete diversity of citizenship between all parties, and the minimum amount in controversy has been pleaded.
Summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In considering a summary judgment motion, the Court must “view the evidence in the light most favorable to the non-moving party and draw all reasonable inference in its favor, and may grant summary judgment only when no reasonable trier of fact could find in favor of the nonmoving party.” Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir.1995) (internal citations and quotation marks omitted); see also Matsushita Elec....
To continue reading
Request your trial
-
Dilworth v. Goldberg
...N.Y.S.2d 283 (3d Dep't 2007). But “[a]bsent a duty of care, there can be no breach thereof and no liability.” Gray v. Wackenhut Servs., Inc., 721 F.Supp.2d 282, 287 (S.D.N.Y.2010), aff'd, 446 Fed.Appx. 352 (2d Cir.2011) (citing Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 341, 162 N.E. 9......
-
Naughright v. Donna Karan Weiss, Urban Zen, LLC
...7, 2012) (citing Kimmell v. Schaefer, 89 N.Y.2d 257, 263, 652 N.Y.S.2d 715, 675 N.E.2d 450 (1996)); see also Gray v. Wackenhut Servs., Inc., 721 F.Supp.2d 282, 292 (S.D.N.Y.2010) (“[I]f the facts represented are not matters peculiarly within the party's knowledge, and the other party has th......
-
Dershowitz v. United States
...v. United States, 12 Civ. 506 (NGG)(JO), 2014 WL 7423760, at *21 (E.D.N.Y. Dec. 31, 2014). See, e.g., Gray v. Wackenhut Servs., Inc., 721 F. Supp. 2d 282, 290 (S.D.N.Y. 2010); Delgado v. Martinez Family Auto, 979 N.Y.S.2d 277, 279 (1st Dep't 2014); Barbieri v. Vokoun, 900 N.Y.S.2d 315, 318 ......
-
Jae Ho Lee, Soyoun Park & Basic Food Groups, LLC v. Ahne Law, P.C. (In re Basic Food Grp., LLC)
...enter into the transaction by misrepresentations." Schumaker v. Mather, 133 N.Y. 590, 596 (1892). See also Gray v. Wackenhut Servs., Inc., 721 F. Supp. 2d 282, 292 (S.D.N.Y. 2010), aff'd, 446 F. App'x 352 (2d Cir. 2011) ("The law has long required plaintiffs to make full use of the facts kn......