Sheerin v. Tutor Perini Corp.
| Decision Date | 31 March 2022 |
| Docket Number | 1:18-CV-7952-ALC-SLC |
| Parties | Richard Sheerin, Plaintiff, v. Tutor Perini Corp. & Tutor Perini Bldg Corp., Defendants/Third-Party Plaintiffs, |
| Court | U.S. District Court — Southern District of New York |
This diversity action was removed from the Supreme Court of the State of New York, Bronx County. A truck driver for a subcontractor brings state-law claims for violations of workplace safety laws and regulations and common law negligence against a general contractor, alleging that he slipped and fell on grease at a construction site. Defendants/Third-Party Plaintiffs Tutor Perini Corporation and Tutor Perini Building Corporation (together “Defendants” or “Tutor Perini”) move for summary judgment against Plaintiff Richard Sheerin (“Plaintiff” or “Sheerin”) and Third-Party Defendant Imperial Ironworks, Inc. (“Imperial”). Imperial moves for summary judgment against Tutor Perini. For the reasons stated herein, Tutor Perini's motion is GRANTED IN PART and DENIED IN PART and Imperial's motion is DENIED.
Unless stated otherwise, the facts are derived from the Parties' Local Civil Rule 56.1 Statements of Undisputed Material Fact declarations, and exhibits. Where the facts are subject to legitimate dispute, they are construed in favor of the non-moving party. See Tindall v. Poultney High Sch. Dist., 414 F.3d 281, 284 (2d Cir. 2005).
Except for Plaintiff's Rule 56.1 Statement, the Court acknowledges that the parties did not directly controvert the factual allegations made in other 56.1 Statements. Local Civil Rule 56.1 requires that “[e]ach statement by the movant or opponent . . . including each statement controverting any statement of material fact, must be followed by citation to evidence which would be admissible, set forth as required by Fed.R.Civ.P. 56(c).” Local Civ. R. 56.1(d). “The papers opposing a motion for summary judgment shall include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party.” Local Civil. R. 56.1(b). “Each numbered paragraph in the statement of material facts . . . will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party.” Local Civil R. 56.1(c).
District courts have discretion to disregard unsupported or otherwise improper factual assertions and independently review the record. Holtz v. Rockefeller & Co., 258 F.3d 62, 73-74 (2d Cir. 2001), abrogated on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175-77, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). For purposes of deciding the motions for summary judgment before this Court where the factual averments in a Rule 56.1 Statement has not been specifically controverted, this Court will proceed as follows: “any fact alleged in defendants' Rule 56.1 statement, supported in fact by the record, and not specifically and expressly contradicted by properly supported allegations in [Plaintiff's Rule 56.1 Statement] will be deemed admitted by plaintiff” and “any fact alleged in defendants' Rule 56.1 statement, supported in fact by the record, but which is specifically and expressly controverted by facts contained in [Plaintiff's Rule 56.1 Statement] which are supported in the record, will not be deemed admitted by [P]laintiff.” Wojcik v. 42nd St. Dev. Project, 386 F.Supp.2d 442, 448 (S.D.N.Y. 2005) (footnote omitted). Additionally, this Court “shall not consider those legal conclusions” disguised as undisputed material fact. Id. at n.5.
This case arises from a construction accident that occurred on July 16, 2015 on City Island Avenue in the Bronx, New York. Plaintiff Richard Sheerin was a teamster, also known as a truck driver, employed by Third-Party Defendant Imperial Iron Works, Inc. (“Imperial”), a subcontractor hired by Tutor Perini, a general contractor, to install a temporary bridge at the worksite location on City Island Avenue and transport materials for use until the completion of the new, permanent bridge. Sheerin's Rule 56.1 Statement, ¶¶ 2-4 (“Pl.'s Stmt.”); Tutor Perini's Statement. ¶¶ 6, 58 (“Tutor's Stmt.”); Imperial's Statement ¶¶ 1 (“Imp. Stmt.”).[1] Imperial contracted with Tutor Perini to build and later disassemble the temporary bridge. Imperial Stmt ¶¶ 1 (citing Ex. I at 23-24). Tutor Perini was solely responsible for building the new bridge. Tutor Stmt. ¶¶ 57. It did not control the means and methods of Imperial workers on the temporary bridge. Tutor Stmt. ¶¶ 61.
Prior to the accident on July 16, 2015, Imperial assigned Sheerin to perform his normal work duties, which included driving his truck[2] throughout the temporary bridge and using its crane to load and offload various tools and materials. Pl.'s Stmt ¶¶ 14, 23; Tutor Stmt. ¶¶ 66-67; Imperial Stmt ¶¶ 2. Imperial would provide its own trucks at the worksite. Tutor Stmt. ¶¶ 51. When driving down the temporary bridge to drop off and pick up construction materials, Sheerin would exit the truck at each stop and stand on the bridge structure. Pl.'s Stmt. ¶¶ 15. After the second or third dropping off of materials on the temporary bridge, [3] Sheerin passed by a worker pushing a wheelbarrow as he was returning to the cabin of his truck from the back of the truck. Pl.'s Stmt. ¶¶ 16. After passing the worker with the wheelbarrow, Sheerin opened the cabin door of his truck, stepped onto the first step on the fuel tank with his right foot with his hand on the door handle of the truck door. Pl.'s Stmt. ¶¶ 16; Tutor Stmt. ¶¶ 11. Sheerin does not know the height of his first step onto the truck. Tutor Stmt. ¶¶ 25. His left foot reached the doorjamb, slipping off the top of the doorjamb. He tried hanging onto the truck door after it had swung open, and he fell down face first onto the roadway of the temporary bridge. Pl.'s Stmt ¶¶ 16; Tutor Stmt. ¶¶ 11, 26-27. According to Sheerin, his left foot slipped on the truck doorjamb because there was grease on the bottom of his work boot, which he testified came from the roadway of the temporary bridge. Pl.'s Stmt. ¶¶ 17-19. During his deposition, he testified that he could see grease on the doorjamb after he stood up following his fall. Tutor Stmt. ¶¶ 21. Sheerin testified that he suffered severe injuries as a result of the accident. Pl.'s Stmt. ¶¶ 24. There were no eyewitnesses to the accident. Tutor Stmt. ¶¶ 1, 73; Imp. Stmt. ¶¶ 8.
After his fall, Plaintiff testified that he walked to the part of the roadway of the bridge structure where he passed the worker with the wheelbarrow and observed a “grease tear off, ” which he said was typically used to insert a grease cartridge into a grease gun, as well as the insert of a grease gun lying on the roadway of the temporary bridge on top of a “blob of grease.”
Pl.'s Stmt. ¶¶ 20-21. That day, shortly after his fall, Sheerin took photos of the “blob of grease” on the roadway with his mobile phone. Pl.'s Stmt. ¶¶ 22; Tutor Stmt. ¶¶ 30. There is a dispute about whether he took them that day. Tutor Stmt. ¶¶ 15. He testified that he threw away his work boots shortly after the date of the accident and never took photos of his work boots or the grease in the doorjamb. Tutor Stmt. ¶¶ 14, 17, 22, 31; Imp. Stmt. ¶¶ 4.
Sheerin testified that he reported the accident to several people. Frank Valentino, employed by Imperial as an ironworker super/foreman on the temporary bridge met Sheerin “a few minutes” after he slipped and fell from the truck; they discussed the accident from approximately 11:30AM to 11:45AM. Pl.'s Stmt. ¶¶ 5-9. Valentino generally gave Sheerin his work orders for driving his truck on the temporary bridge and other tasks. Imp. Stmt. ¶¶ 2; Tutor Stmt. ¶¶ 3, 7-8. On the date of the accident, Sheerin said, he also reported the accident to his boss and Imperial vice president, Nick Ascenzo, [4] as well as the officer manager for Imperial. Pl.'s Stmt. ¶¶ 10-12, 35; Imp. Stmt. ¶¶ 9. There is no evidence that Sheerin filed an accident report on the day of the accident. On October 15, 2015, the Workers' Compensation Board received a First Report of Injury regarding the accident from Sheerin. Imperial Stmt. ¶¶ 11.
Joseph Berkowitz, former Tutor Perini project manager on the temporary bridge project, [5]testified that he would try to walk daily on the temporary bridge to look for hazardous conditions, and when he spotted hazards he would generally report them to the project supervisor depending on the nature of the hazard. Pl.'s Stmt. ¶¶ 25-27. He further testified that he did not document hazards on the temporary bridge in paper form, that he would not necessarily report every piece of garbage that he would observe on the temporary bridge to the project supervisor, that he would not have reported trash or debris left behind by a worker at the temporary bridge site, and that he would not report certain conditions on top of the bridge to the project supervisor. Pl.'s Stmt. ¶¶ 28-32. Berkowitz stated that he would normally not have reported the black “splash” or “spot” depicted in Sheerin's cell phone photographs and that, upon his examination of the photographs, it seemed that trash had been thrown atop the temporary bridge. Pl.'s Stmt. ¶¶ 33-34. He did testify, however, that if he ever saw grease he would have reported it to the project superintendent, who would try to determine the source of the grease and get it cleaned up. Tutor Stmt. ¶¶ 78. He said that this was the custom and practice of Tutor Perini. Imp. Stmt. ¶¶ 10. Berkowitz also had authority to stop work on the temporary bridge project. Tutor Stmt. ¶¶ 83.
Stephen Markowski, former Tutor Perini estimating manager at the time...
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