Villalba v. Robo-Breaking Co.
| Decision Date | 29 September 2014 |
| Docket Number | 11-CV-1030 (WFK) (RML) |
| Parties | OMAR VILLALBA and JOANNE VILLALBA, Plaintiffs, v. ROBO-BREAKING CO., INC., NATIONAL RAILROAD PASSENGER CORPORATION d/b/a/ AMTRAK, AECOM USA, INC., f/k/a DM JM+H ARRIS., Defendants. AECOM USA, INC., Defendant/Third-Party Plaintiff, v. SKANSKA USA CIVIL NORTHEAST INC., f/k/a SLATTERY SKANSKA, INC., Defendants. |
| Court | U.S. District Court — Eastern District of New York |
DECISION AND ORDER
This action arises out of the injuries that Plaintiff Omar Villalba allegedly sustained when he partially fell through a hole in an elevated platform. Plaintiff, Defendant National Railroad Passenger Corp., d/b/a/ Amtrak ("Amtrak"), and Defendant AECOM USA, INC. ("AECOM") each brings a motion for summary judgment. For the reasons stated below, the Court grants Defendants' motions as to New York State Labor Law § 240 and § 241, but denies them as to § 200. Plaintiff's motion for summary judgment is denied in its entirety.
This action was removed from the Supreme Court of New York, Queens County, on March 3, 2011. Dkt. 1 at 1-2 (citing 28 U.S.C. §§ 1331, 1349). Plaintiffs subsequently filed an Amended Complaint against Robo-Breaking Co., Inc., Amtrak, and AECOM on April 19, 2011. Dkt. 7 ("Am. Compl.").1 Plaintiff Omar Villalba brought a negligence claim against all Defendants; a negligence / failure to warn claim against all Defendants; and a failure to provide proper safety equipment claim against all Defendants. Dkt. 7 at 7-17. Plaintiff Joanne Villalba brought a loss of consortium claim against Defendants. Id. at 17-18. On May 11 and 12, 2011, Defendants AECOM and Amtrak filed answers and cross-claims, and on May 26, 2011, AECOM filed a third-party complaint against Skanska USA Civil Northeast Inc. ("Skanska"). Dkts. 9-12, 14.
On August 16, 2013, Defendant Amtrak, Defendant AECOM, and Plaintiff Omar Villalba2 filed Motions for Summary Judgment. Dkts. 45 "(AECOM's Mot."); 47 ("AECOM Memo."); 53 ("Amtrak's Mot."); 58 ("Amtrak Memo."); 60 ("Pl.'s Mot."); 60-2 ("Pl.'s Memo."). AECOM moved for summary judgment on Plaintiff's New York State Labor Law §§ 240, 241 claims and Labor Law § 2003 claims, to which Plaintiff filed an opposition and Amtrak filed a partial opposition. Dkt. 47,50,51. Amtrak moved for summary judgment on Plaintiff's New York State Labor Law §§ 240, 241 claims; Labor Law § 200; and Article 1926 of OSHA,4to which Plaintiff filed an opposition. Dkts. 53-55. Plaintiff moved for partial summary judgment on his Labor Law §§ 240, 241 claims, to which Defendants AECOM and Amtrak filed oppositions. Dkts. 60, 66, 70.
The parties do not dispute the following factual events, except where noted.
In 2004, Amtrak entered into a construction contract with Skanska to upgrade two "railroad tunnel emergency ventilation facilities" in Manhattan. Dkt. 59 (Amtrak's R. 56.1 St. ("Amtrak St.")), at ¶ 12. Skanska acted as general contractor, provided personal protective equipment to its employees, and was responsible for fixing or cordoning off any holes that were reported on the platforms. Id. at ¶¶ 12-15; AECOM Memo, at 3-4 (); AECOM Memo, at 5 (). Further, SKANSKA was "solely responsible" for providing a safe place for the performance of the work and "solely responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work." AECOM Memo, at 4 (citing Dkt. 46-14, Ex. N (Construction Contract)). SKANSKA's Project Superintendent coordinated the work of the different foreman and met with the foremen to give them directions. AECOM Memo, at 4. The Superintendent also was responsible for ensuring that workers were supplied with the required personal protective equipment. Id. at 5 (citing Dkt. 56, Ex. J at 70; Ex. L at 12-14). SKANSKA's Site Safety Manager was responsible for conducting safety inspections and safety meetings, attending review meetings with project engineers and management, maintaining the industrial hygiene equipment, and reprimanding employees if they were conducting work in an unsafe manner.AECOM Memo. at 5 (citing Dkt. 46-12, Ex. L at 12-14). Plaintiff Omar Villalba was an employee of SKANSKA during all relevant times. Am. Compl. ¶ 31.
AECOM acted as a safety monitor for Amtrak. Amtrak St. ¶ 16; AECOM Memo, at 5 (AECOM was "Construction Manager"). In this role, AECOM monitored construction activities and assigned a Safety Engineer who had "full authority to act on behalf of the CM [Construction Manager] at all times to periodically monitor that all construction work [was] being performed in accordance with standard industry practice and with Amtrak, State and Federal Laws regulating job site safety." Amtrak St. at ¶ 16 (). AECOM's safety responsibilities were limited to monitoring the construction activities and making recommendations, and AECOM employees "did not have the authority to enforce the work safety plans, stop construction, or correct any perceived safety issues if [they] observed workers or conditions that were not in compliance with the safety requirements." AECOM Memo, at 6. AECOM employees did not have authority to speak directly to SKANSKA employees or make recommendations as to the equipment they used, but they would stop construction in the event that they perceived a safety issue that presented an imminent danger. Id. at 7.
Plaintiff was employed by SKANSKA as a drill running foreman. Amtrak St. ¶ 19; see also Dkt. 48 (AECOM's R. 56.1 St. ("AECOM St.")), ¶ 8. On March 24, 2010, Plaintiff attended Amtrak's daily job briefing and then met with his crew to instruct them on the day's work assignments. AECOM Memo, at 8. That day, the drill runners were drilling holes into the rock and using "splitters and a Brokk machine to break the rock and concrete." AECOM Memo.at 8. This work was performed on a scaffold that was 40 feet5 above the train tracks below, but four to fifteen feet above a platform below. Amtrak St. at ¶¶ 23-24; Dkt. 60-1 (Pl.'s R. 56.1 St. ("Pl.'s St.")), at ¶ 7; Pl.'s Memo, at 2. Plaintiff was not wearing a harness because "the platform was all one level with no drop-off point." AECOM Memo, at 8.
In the morning of that day, Plaintiff witnessed a coworker attempting to manipulate a machine on the scaffold and then called a carpenter to repair a 14" to 16" hole created by the machine. Amtrak St. at ¶¶ 25-26.6 Approximately 45 minutes later, Plaintiff was helping another coworker with a one hundred pound hydraulic jack when he stepped backward and partially fell into the 14" to 16" hole. Id. at ¶¶ 27-29. Plaintiff's right leg went into the hole up to the groin. Id. at ¶ 29.
Plaintiff allegedly suffered knee injuries resulting from the fall after his left knee buckled sideways. Pl.'s Memo, at 3; Dkt. 46-15, Ex. O (Incident Report). However, Plaintiff continued to assist the drill runner after the alleged incident and did not complete a Safety Officer's report because he did not believe his injury was serious. Dkt. 46-7, Ex. G at 88. Plaintiff worked for the remainder of the day and for the next three to four months in the same position. Dkt. 46-10, Ex. J at 61-63.
A court appropriately grants summary judgment if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(a). No genuine issue of material fact exists "where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 212 (2d Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). The moving party must meet its burden by pointing to evidence in the record, including depositions, documents, affidavits, or other materials which it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "In determining whether summary judgment is appropriate, [the] Court will construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (internal quotation marks and citations omitted). The role of the court is not to weigh the evidence and determine the truth of the matter, but rather to perform "the threshold inquiry of determining whether there is the need for a trial[.]" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).
If the moving party fulfills its preliminary burden, the burden shifts to the non-movant to raise the existence of a genuine issue of material fact. Fed. R. Civ. P. 56(c)(1). The non-moving party must make a showing sufficient to establish the existence of facts or factual disputes supporting each element constituting its case. See Celotex, 477 U.S. at 322-23 (). Statements that are devoid of specifics and evidence that is "merely colorable" are insufficient to defeat a properly supported motion for summary judgment. See Bicker staff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999) (); Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (). "A...
To continue reading
Request your trial