Wallace v. Nat'l R.R. Passenger Corp.

• Decision Date: 18 March 2014
• Docket Number: No. 11 Civ. 5419(AJN).,11 Civ. 5419(AJN).
• Citation: 5 F.Supp.3d 452
• Parties: Steven WALLACE, Plaintiff, v. NATIONAL RAILROAD PASSENGER CORP. d/b/a Amtrak, Defendant and Third Party Plaintiff, v. Weeks Marine, Inc., Third Party Defendant and Fourth Party Plaintiff, v. Liberty Surplus Insurance Corp., Fourth Party Defendant.
• Court: U.S. District Court — Southern District of New York

5 F.Supp.3d 452

Steven WALLACE, Plaintiff,

v.NATIONAL RAILROAD PASSENGER CORP. d/b/a Amtrak, Defendant and Third Party Plaintiff,

v.Weeks Marine, Inc., Third Party Defendant and Fourth Party Plaintiff,

v.Liberty Surplus Insurance Corp., Fourth Party Defendant.

No. 11 Civ. 5419(AJN).

United States District Court,

S.D. New York.

Signed March 18, 2014.

Daniel John Hansen, David Hansen, Esq., New York, NY, for Plaintiff.

Ronald Betancourt, Betancourt, Van Hemmen, Greco & Kenyon LLC, Ronald E. Joseph, Jennifer Wu, Landman Corsi Ballaine & Ford PC, New York, NY, for Defendant and Third Party Plaintiff.

Ronald Betancourt, Betancourt, Van Hemmen, Greco & Kenyon LLC, New York, NY, for Third Party Defendant and Fourth Party Plaintiff.

Robert W. Muilenburg, Coughlin Duffy, Morristown, NJ, Daniel Luke Pascoe, Becker Meisel, LLC, Livingston, NJ, for Fourth Party Defendant.

MEMORANDUM & ORDER

ALISON J. NATHAN, District Judge:

Plaintiff Steven Wallace was injured when he fell from a floating platform that he was working on while repairing a bridge owned by Defendant National Railroad Passenger Corp. d/b/a Amtrak (“Amtrak”). In this diversity action, Wallace brought several state law causes of action against Amtrak, seeking to recover for his injuries. Amtrak, in turn, filed a third-party complaint against Wallace's employer, Weeks Marine, Inc. (“Weeks”), alleging that Weeks had indemnified it against Wallace's claims. Weeks then brought a fourth-party complaint against Liberty Surplus Insurance Corp. (“Liberty”), Amtrak's insurer, claiming that Liberty, not Weeks, should pay for Wallace's injuries.

Following discovery, the parties filed motions for summary judgment, which are now before the Court. Wallace moves for summary judgment as to liability on his claims under New York Labor Law Sections 240(1) and 240(6), Dkt. No. 58; Amtrak and Weeks move for summary judgment on all of Wallace's claims against Amtrak, Dkt. Nos. 46, 51; Amtrak and Weeks cross-move for summary judgment on Amtrak's claims against Weeks, Dkt. Nos. 89, 95; and Liberty and Weeks cross-move for summary judgment on Weeks's claims against Liberty, Dkt. Nos. 95, 102. For the following reasons, Wallace's motion is granted in part and denied in part, Amtrak's and Weeks's motions against Wallace are granted in part and denied in part, Amtrak's motion against Weeks is granted in part and denied in part, Weeks's motion against Amtrak is granted in part and denied in part, Weeks's motion against Liberty is denied, and Liberty's motion against Weeks is granted in part and denied in part. In light of this disposition, Weeks's cross-motion to strike portions of Wallace's affidavit, Dkt. No. 63, is denied as moot.

I. BACKGROUND

Unless otherwise noted, the following facts are undisputed and are based on the Court's review of the record, undertaken with particular attention to the evidence cited in the parties' Local Rule 56.1 statements. See Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275, 292 (2d Cir.2000); Agence Fr. Presse v. Morel, 934 F.Supp.2d 547, 551 (S.D.N.Y.), superseded on other grounds on reconsideration,934 F.Supp.2d 584 (S.D.N.Y.2013).

A. The Construction Project

The Pelham Bay Bridge is a railroad bridge that crosses the Hutchinson River. Amtrak 3/1 56.1 ¶¶ 5–6.¹ Amtrak, which owns the bridge, engaged Weeks in September 2009 to be the general contractor for a construction project involving the rehabilitation of the bridge. Id.; Joseph 3/1 Decl. Ex. A. Specifically, Weeks's task was to strengthen the structural piles (or columns) supporting the bridge. Amtrak 3/1 56.1 ¶ 6. This task involved encasing the piles with steel reinforcement bars, or “rebar,” which would support fiberglass and cement casing where the piles were damaged or deteriorated. Id.; Weeks 3/1 56.1 ¶ 5.

Amtrak stationed safety officers at the bridge to help prevent Weeks's employees from being hit by trains. Amtrak 3/1 56.1 ¶ 24. Additionally, John Ramo, Amtrak's project manager for the Pelham Bay Bridge project, attended about 50 meetings there to oversee the project and attend progress meetings. Ramo Dep., Hansen Aff. Ex. 4, at 14. He testified that he was at the bridge about once a week, and that Amtrak had several employees stationed there daily, including an inspector to ensure that “the contractors' operations [would not] impact the safe passage of trains” and that the project was proceeding on schedule. Id. at 17–20.

B. Wallace's Accident

Wallace, a Weeks employee, worked as a dock builder on the bridge project for several weeks during the spring of 2010. Amtrak 3/1 56.1 ¶ 5; Weeks 3/1 56.1 ¶ 4; Wallace Dep., Joseph 3/1 Decl. Ex. B, at 11. One of his tasks was installing rebar cages around the bridge pilings. Weeks 3/1 56.1 ¶¶ 5, 9. To allow its workers to access the pilings, Weeks used a series of wooden “float stages” that were set in the water. The float stages were composed of 12? by 12? or 16? by 16? wooden planks, approximately 20 feet long, which were pinned together side by side, for a total width of five to six feet. Amtrak 3/1 56.1 ¶¶ 9–11; Weeks 3/1 56.1 ¶¶ 6–7; Wallace 56.1 ¶ 8. These float stages acted as “sidewalks” along which Weeks workers could walk in order to access the piles. Amtrak 3/1 56.1 ¶ 10. The tops of the float stages were about three to four inches above the surface of the water, but could be lower depending on how much weight they were bearing at any given time. Id. ¶ 12. Weeks owned and maintained these float stages. Id. ¶ 13.

Wallace testified at his deposition that the float stages were in bad condition, in that they had pieces of wood missing and “were literally falling apart under your feet, a lot of them.” Wallace Dep., Joseph 3/1 Decl. Ex. B, at 60. Jason Monach, Wallace's co-worker, also testified that Weeks employees often had to repair parts of the float stages “where the wood was not quite flush and it was awkward to walk on.” Monach Dep., Hansen Aff. Ex. 8, at 43. Additionally, Mark McMahon, a Weeks foreman, stated in his deposition that “moss” on the surface of the float stages was an “ongoing problem,” and that workers had complained to him that the stages were too slippery as a result. McMahon Dep., Hansen Aff. Ex. 7, at 42–43. However, Ramo, Amtrak's project manager, testified that he never knew of any concerns regarding the safety of the float stages. Ramo Dep., Joseph 3/1 Decl. Ex. G, at 44.

On May 6, 2010, Wallace and his co-workers were in the process of installing a rebar cage. A crane initially lowered the cage from a barge onto a float stage. Weeks 3/1 56.1 ¶ 11; Wallace 3/1 56.1 ¶ 11. Then, Wallace and three others began carrying the cage along the float stages, with one worker holding each corner of the cage. Wallace Dep., Joseph 3/1 Decl. Ex. A, at 56. The workers walked on the outside of the cage, so that they were near the edge of the float stages, with the cage suspended between them over the center of the stages. Wallace 3/1 56.1 ¶ 13; Wallace Dep., Joseph 3/1 Decl. Ex. A, at 56. Wallace manned the front right corner of the cage, with his right side facing the water. Wallace Dep., Joseph 3/1 Decl. Ex. A, at 56; Quesada Dep., Joseph 3/1 Decl. Ex. J, at 79. The other Weeks employees carrying the cage were Monach, Peter Fitzpatrick, and Matthew Quesada. Amtrak 3/1 56.1 ¶ 15 n. 10.

The four men had walked along two float stages and had crossed to a third when Wallace fell. Weeks 3/1 56.1 ¶¶ 12–13. At his deposition, Wallace stated that his fall resulted from his stepping on the side of the float stage, where a piece of the float stage was “missing.” Wallace Dep., Joseph 3/1 Decl. Ex. B, at 259, 262. After he stepped on the missing piece of the float stage, Wallace testified, his “leg rolled under where the piece was missing and then [he] went down to the float stage and into the water.” Id. at 259; Weeks 3/1 56.1 ¶ 13. Monach, Wallace's co-worker, recalls Wallace stating at the time of the accident that he “he slipped on the float stage.” Monach Dep., Hansen Aff. Ex. 8, at 67; see also id. at 78–79 (“I do believe [Wallace] mentioned that he slipped.”). According to Monach, who examined the area where Wallace fell after the accident occurred, the float stage had “a small rounded edge to the side [Wallace] was walking on,” which “had a little bit of algae on the side and underneath part.” Id. at 67.

After falling from the float stage, Wallace ended up in the water, although it is unclear whether he was ever fully submerged. Compare Wallace Dep., Betancourt 3/1 Decl. Ex. A, at 249 (fully submerged), with Monach Dep., Betancourt 3/1 Decl. Ex. E, at 76 (about two-thirds submerged). In any event, he bobbed to the surface because he was wearing a life vest, and his co-workers pulled him out. Wallace Dep., Betancourt 3/1 Decl. Ex. A, at 249. In all, Wallace was in the water for less than a minute. Amtrak 3/1 56.1 ¶ 19. He testified at his deposition that he did not know how deep he fell or whether he impacted the bottom of the river. Wallace Dep., Joseph 3/1 Decl. Ex. B, at 69–71, 250. The parties dispute how deep the water in the river was at the time Wallace fell: Amtrak and Weeks claim that, based on the tides, the water was no more than four and a half feet deep. Amtrak 3/1 56.1 ¶ 20; Weeks 3/1 56.1 ¶ 17. However, Quesada stated at his deposition that he thought the water was about twelve feet deep. Wallace 56.2 3/1 ¶ 21. Wallace's affidavit, submitted in connection with his motion for summary judgment, states that the water was approximately six to ten feet deep. Wallace Aff. ¶ 8.

After Wallace was removed from the water, his leg was bleeding and he was in pain, but he was not sure whether he was badly injured. Wallace Dep., Joseph 3/1 Decl. Ex. B, at 74, 77–78. He changed his clothes and continued working. Id. at 81. He reported his fall to McMahon, Weeks's foreman, later that day. Amtrak 3/1 56.1 ¶ 2. He also filled out an accident report, which is dated May 13, 2011, although Wallace may have filled out the report...