CLAYTON v. UNITED STATES OF AMERICA et al
Filing
69
OPINION. Signed by Chief Judge Jerome B. Simandle on 12/18/2012. (dmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
THERESA CLAYTON,
HONORABLE JEROME B. SIMANDLE
Plaintiff
Civil No. 10-3127 (JBS/KMW)
v.
UNITED STATES OF AMERICA, et
al.
OPINION
Defendants
APPEARANCES:
Jason Daria, Esq.
John M. Dodig, Esq.
Feldman, Shepard, Wohlegelertner & Tanner
1845 Walnut St.
25th Floor
Philadelphia, PA 19103
Attorney for Plaintiff Theresa Clayton
Paul Blaine, AUSA
Office of the United States Attorney
Camden Federal BLDG & U.S. Courthouse
401 Market St.
4th Floor
Camden, N 08101
Attorney for Defendant United States
Dana Charles Argeris, Esq.
Marshall Dennehey Warner Coleman & Goggin
220 Lake Drive East
Suite 300
Cherry Hill, NJ 08002
Attorney for Defendant Eastern Construction and Electric
Stephen A. Rudolph, Esq.
Monte & Rudolph, PA
800 The Plaza
P.O. Box 255
Sea Girt, NJ 08750
Attorney for Defendant Meridian Management Corporation
SIMANDLE, Chief Judge:
I.
INTRODUCTION
On June 21, 2008, Steven Clayton died after touching an
energized power wire while working on a utility pole replacement
project at Fort Hamilton U.S. Army base in Brooklyn, New York.
Theresa Clayton, as the wife of the deceased and administrator
of his estate, seeks compensation from the United States,
NorthStar Technology Corporation (“Northstar”), Eastern
Construction & Electric, Inc. (“Eastern”), and Meridian
Management Corporation (“Meridian”) for their respective roles
in the accident.
Before the Court are Defendant United States’ motion for
summary judgment [Docket Item 48] and Defendant Meridian’s
motion for summary judgment [Docket Item 51].
For the reasons explained herein, the United States’ motion
will be granted in part and denied in part and Meridian’s motion
will be granted. The Court’s principal holdings are: (1) both
New York and New Jersey law yield the same outcome on both
motions; (2) disputed issues of material fact exist regarding
the extent of the Army’s supervision of Steven Clayton; and (3)
no disputed issues of material fact exist regarding whether
Meridian owed Steven Clayton a duty of care.
2
II.
JURISDICTION
The Court has jurisdiction over this matter pursuant to 28
U.S.C. § 1346(b)(1) because federal district courts have
original jurisdiction over claims seeking money damages for
personal injury and death caused by the negligent and wrongful
acts and omissions of the employees of the United States. The
Court has supplemental jurisdiction over the remaining
Defendants and claims pursuant to 28 U.S.C. § 1367(a) since the
remaining claims are so related to the claims against the United
States. 1
III. PROCEDURAL HISTORY
Defendants NorthStar and Eastern both moved for partial
summary judgment on the question of whether Clayton was acting
as an employee for one or both entities under the relevant
workers’ compensation laws. [Docket Items 31 & 32.] Eastern’s
motion was unopposed and, because there was good cause, the
Court granted it. [Docket Items 53 & 54.] It is therefore
1
As explained below, the United States’ motion for summary
judgment will be denied in large part. The United States will
remain a party and, therefore, the Court’s supplemental
jurisdiction over the remaining parties and claims remains
proper. Additionally, it appears that diversity jurisdiction
would exist pursuant to 28 U.S.C. § 1332 as to the claims of
Plaintiff (a New Jersey citizen) against Defendant Northstar (a
Nevada corporation with principal place of business in
California) and against Defendant Meridian (a Florida
corporation with principal place of business in Florida).
3
established that Clayton was working as an employee of Eastern.
The Court denied Northstar’s motion, as Clayton’s alleged status
as a special employee of Northstar is a matter of genuine
factual dispute. [Docket Items 53 & 54.]
IV.
FACTUAL BACKGROUND
The Army needed to replace several high voltage utility
poles at Fort Hamilton. Northstar had entered into a Basic
Ordering Agreement (“BOA”) to handle construction services at
Fort Hamilton. Robert Downes was employed by the Army at Fort
Hamilton as a Lead Construction Representative, and he served as
the Contracting Officer’s Representative for the utility pole
project. (Army Statement of Facts (“SOF”) ¶ 24.) Northstar did
not handle high voltage electrical projects. Downes had known
Mike Dietz, a high voltage electricity lineman, since the early
1990s because Dietz had worked on at least 15 projects at Fort
Hamilton. (Army SOF ¶ 40.) When looking for a subcontractor to
replace the poles, Downes suggested that Northstar contact Dietz
to see if his employer could put in a bid. (Downes August 21,
2009 Dep. 29:25-30:15.) Dietz’s employer at the time was Eastern
and, on November 30, 2007, NorthStar subcontracted with Eastern
to have Eastern replace the poles.
Steven Clayton supervised a three-man crew for Eastern that
also included Dietz and Chuck Miller, a groundman.
4
On the morning of June 1, 2008, Clayton’s crew planned to
replace utility pole number 123. The power lines leading to pole
123 were supposed to be shut down or de-energized. Before the
work on pole 123 began, Dietz went to pole 136 to de-energize
the wires going to pole 123. Dietz missed de-energizing one of
the wires because the wires were in a unique configuration.
(Dietz Dep. 112:2.) Unfortunately, Clayton did not test the
wires before touching them. (Dietz Tr. 118, 194-95; see also
Docket Item 48-37 at 3.) When Clayton went up to pole 123 in his
utility bucket, his shoulder and hand touched an energized wire.
He died from electrocution.
Plaintiff filed negligence, wrongful death, and survival
claims against the United States pursuant to the Federal Tort
Claims Act (“FTCA”). Plaintiff also filed negligence, reckless
and intentional conduct, wrongful death, survival, and punitive
damages against Meridian and the other corporate Defendants.
V.
LEGAL ANALYSIS
A. CHOICE OF LAW
There are two sets of briefing before the Court. In the
briefing regarding the Army’s motion for summary judgment, both
the Army and the Plaintiff cited New York state case law
discussing duties owed by landowners and general contractors.
The Army stated, “As the actions complained of on the part of
5
the Army took place in New York, that state’s tort law provides
the controlling substantive legal principles.” (Army Mot. Summ.
J. at 18-19.) Neither the Army nor the Plaintiff disputed the
applicability of New York law in assessing the Army’s motion. In
the briefing regarding Meridian’s motion for summary judgment,
both Meridian and Plaintiff cited New Jersey state law
discussing when a duty of care exists. Neither Meridian nor the
Plaintiff disputed the applicability of New Jersey law in
assessing Meridian’s motion. None of the parties conducted a
choice of law analysis. 2
The Court must determine which state’s substantive law
applies. Plaintiff Theresa Clayton is a citizen of New Jersey.
(Compl. ¶ 1.) Meridian is a Florida corporation. (Compl. ¶ 5.)
The electrocution accident occurred in New York. The Court
hearing the action is in the District of New Jersey.
The FTCA waives sovereign immunity and grants district
courts jurisdiction over tort claims against the United States
“under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the
law of the place where the act or omission occurred.” 28 U.S.C.
§ 1346(b)(1) (emphasis added). In other words, “it is the
substantive law of the State wherein the cause of action accrues
2
The parties are encouraged to give greater attention to choice
of law analysis in any subsequent briefing and at trial.
6
which governs the liability of the United States on claims
brought under the Federal Tort Claims Act.” Ciccarone v. United
States, 486 F.2d 253, 257 (3d Cir. 1973). In this case, all of
the allegations before the Court involve acts that occurred in
New York. In a multistate tort action, the Federal Tort Claims
Act (“FTCA”) requires a federal court to apply the whole law of
the place where the acts of negligence occurred, including its
choice-of-law rules. 28 U.S.C. §§ 1346(b), 2674; Richards v.
United States, 369 U.S. 1 (1962). The Court must therefore apply
New York’s choice of law rules.
Under New York law, “[t]he first step in any case
presenting a potential choice of law issue is to determine
whether there is an actual conflict between the laws of the
jurisdictions involved.” Matter of Allstate Ins. Co. (Stolarz),
81 N.Y.2d 219, 223, 613 N.E.2d 936, 937 (1993). “It is only when
it can be said that there is no actual conflict that New York
will dispense with a choice of law analysis.” Curley v. AMR
Corp., 153 F.3d 5, 12 (2d Cir. 1998). “If no conflict exists,
then the court should apply the law of the forum state in which
the action is being heard.” Excess Ins. Co. Ltd. v. Factory Mut.
Ins. Co., 2 A.D.3d 150, 151, 769 N.Y.S.2d 487, 489 (2003), aff'd
sub nom. Excess Ins. Co. Ltd. v. Factory Mut. Ins., 3 N.Y.3d
577, 822 N.E.2d 768 (2004).
7
The Court declines, at this time, to resolve all choice of
law questions that may pertain to this case. For purposes of
deciding the present motions, the Court finds that there is no
conflict because (1) under either New York or New Jersey law,
Meridian did not owe the decedent a duty of care and (2) under
either New York or New Jersey tort law, there are disputed
issues of material fact that preclude the Court from granting
summary judgment for the Army.
B. STANDARD OF REVIEW
Summary judgment is appropriate “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 of law.” Fed. R. Civ.
P. 56(a). A dispute is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the non-moving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A fact is “material” only if it might affect the outcome
of the suit under the applicable rule of law. Id. Disputes over
irrelevant or unnecessary facts will not preclude a grant of
summary judgment. Id. The district court must “view the facts
and draw reasonable inferences in the light most favorable to
the party opposing the summary judgment motion.” Scott v.
Harris, 550 U.S. 372, 378 (2007).
8
Once the moving party has supported its motion, “its
opponent must do more than simply show that there is some
metaphysical doubt as to material facts.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). A
summary judgment movant may meet its burden by showing that the
opposing party is unable to meet its burden of proof at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Nonetheless,
Defendants, as the moving parties on the motion, bear the
initial responsibility of demonstrating the absence of a genuine
issue of material fact. Id.
C. THE UNITED STATES’ MOTION FOR SUMMARY JUDGMENT
The United States argues four main points in its summary
judgment motion. First, the United States argues that Theresa
Clayton failed to present an administrative claim to the Army
seeking recovery in her personal or individual capacity before
she commenced the lawsuit. This failure should, the Army argues,
bar her claims because the Federal Tort Claims Act (“FTCA”)
requires claimants to present administrative claims before
filing lawsuits. Second, the United States argues that the Army
was not supposed to, and did not supervise the work of Steven
Clayton and the other Eastern employees. Third, the Army argues
that the administrative claim form that Theresa Clayton did
submit as administrator of her husband’s estate only provided
9
notice of a failure to supervise claim; as a result, the Army
argues that all other claims are barred. Fourth, the Army argues
that the Army owed no duty of care in the circumstances of this
case because the work performed was inherently dangerous and
carried out in a careless manner.
The Court will address each argument in turn. 3 For the
reasons explained herein, the Army’s motion will be
substantially denied because material issues of disputed fact
exist regarding the Army’s supervision of Clayton.
1. The FTCA Bars Claims in Theresa Clayton’s Individual
Capacity
The Army correctly argues that Theresa Clayton’s failure to
present administrative claims to the Army before filing this
lawsuit precludes her from seeking relief in her individual or
personal capacity. The Federal Tort Claims Act “operates as a
limited waiver of the United States’s sovereign immunity.”
White–Squire v. U.S. Postal Service, 592 F.3d 453, 456 (3d Cir.
3
Eastern filed a response [Docket Item 59] to the Army’s motion
for summary judgment. Without admitting liability, Eastern
joined Plaintiff’s arguments regarding the sufficiency of the
administrative claims notice and the Army’s contractual and
common law duties. Eastern also noted that, as a third party
plaintiff against third party defendant the Army, Eastern is not
bound to comply with the administrative notice requirements in
28 U.S.C. § 2675. The United States responded [Docket Item 67]
to Eastern, arguing that the Court should disregard Eastern’s
response because it was not timely. Eastern’s response does not
impact the Court’s analysis of the Army’s and Meridian’s motions
and, therefore, the Court need not decide whether it was
properly filed.
10
2010).
Because this waiver is limited, its terms “define the
court’s jurisdiction to entertain the suit.”
States, 443 F.2d 1047, 1048-49 (3d Cir. 1971).
Bialowas v. United
The FTCA
mandates that “[a]n action shall not be instituted upon a claim
against the United States . . . unless the claimant shall have
first presented the claim to the appropriate Federal agency.”
28 U.S.C. § 2675(a). This administrative exhaustion requirement
“is jurisdictional and cannot be waived.” Lightfoot v. United
States, 564 F.3d 625, 627 (3d Cir. 2009).
The FTCA requires that “each claim and each claimant meet
the prerequisites for maintaining a suit against the
government.” Dalrymple v. United States, 460 F.3d 1318, 1325
(11th Cir. 2006) (citing 28 U.S.C. § 2675(a)). This rule applies
without exception, even when one spouse’s claims arise from an
incident in which the other spouse was harmed. Theresa Clayton’s
claims “are derivative from claims of [her] injured spouse, but
still need to be filed separately with the agency.” See Lay v.
United States, 3:10-CV-2623, 2011 WL 1655824 (M.D. Pa. May 2,
2011). Theresa Clayton did not file a claim in her individual
capacity 4 and, therefore, all claims seeking relief for her
individual capacity will be dismissed.
4
The Army submitted a declaration from Lorenzo Ferguson, Chief
of Operations and Records at the U.S. Army Claims Service,
stating that “[a] thorough search of all records available to
this Service has found that no administrative claim was filed by
11
The case caption presently reads, “Plaintiff Theresa
Clayton, individually and as Administratrix . . . of the Estate
of Steven Clayton. . . .” The word “individually” shall be
deleted; the caption shall now read “Plaintiff Theresa Clayton,
as Administratrix . . . of the Estate of Steven Clayton. . . .”
Because Theresa Clayton cannot assert claims in her
individual capacity, the Army also argues that Count I, which
alleges negligence against the United States, is subsumed within
Counts IV, which alleges wrongful death, and V, which alleges
survival. The Army argues that wrongful death actions compensate
the decedent’s survivors for losses due to tortious conduct and
survival actions preserve for the decedent’s estate any personal
cause of action that the decedent would have had if he had
survived. The wrongful death and survival claims do not preclude
Theresa Clayton, as administratrix, from bringing a negligence
claim. Plaintiff’s negligence claim will stand. 5
2. Material Disputed Facts Exist Regarding the Army’s
Supervision of Clayton
The Army argues that it was not supposed to and did not
supervise the work of Steven Clayton and the other Eastern
THERESA CLAYTON in her individual capacity. . . .” (Ferguson
Decl. ¶ 2.)
5
To be clear, all the claims against the United States, i.e.
negligence, wrongful death, and survival, may only be brought by
Theresa Clayton in her capacity as administratrix, not in her
individual capacity.
12
employees. The FTCA “allows a plaintiff to bring an action
against the United States that alleges that the acts or
omissions of United States employees or agencies were
negligent.” Ryan v. United States, 233 F. Supp. 2d 668, 675-76
(D.N.J. 2002); see also 28 U.S.C. § 1346(b)(1). But the United
States cannot be held liable for the actions or conduct of a
contractor or subcontractor. 28 U.S.C. § 2671. The principal
distinction between an independent contractor and an employee is
the extent to which the federal government “control[s] the
detailed physical performance” of the job. Logue v. United
States, 412 U.S. 521, 528 (1973); Norman v. United States, 111
F.3d 356, 357 (3d Cir. 1997). If a federal actor supervises the
day-to-day operations of the job, the contractor is considered
an employee of the government. United States v. Orleans, 425
U.S. 807, 815 (1976). Essentially, if Eastern was an independent
contractor, then the Army cannot be liable under the FTCA for
Clayton’s death; but, if the Army was supervising Eastern’s dayto-day operations, then Eastern would be considered an employee
and the Army could be subject to FTCA liability.
The Army argues that summary judgment is proper because
Eastern was an independent contractor over which the Army did
not exercise supervisory authority. The Army argues that “Downes
did not supervise Clayton, as Clayton was the employee of an
independent contractor and the Army was prohibited by the
13
pertinent contract documents from supervising such a person, and
did not in fact do so.” (Army Br. Supp. Mot. Summ. J. at 2.) The
Army emphasizes that Northstar was expressly and exclusively
responsible for supervising and managing Eastern’s work. The
Army argues that Downes “was involved in coordinating that [pole
replacement] work, but had no responsibility for the actual work
done in shutting down or de-energizing the lines.” (Army Br.
Supp. Mot. Summ. J. at 8.) Specifically, the Army states that
Downes “provided no technical oversight or supervision, and did
not give directions to Clayton or Dietz in their work, or tell
them how to do their work.” (Army Br. Supp. Mot. Summ. J. at 9.)
The Army claims that, “if Clayton and Dietz wanted to do [Pole
123] another way, Downes would have gone along with that.” (Army
Br. Supp. Mot. Summ. J. at 12.)
But there is a material issue of disputed fact regarding
the extent of the Army’s supervision of Clayton; a reasonable
fact-finder could find that the Army did, in fact, supervise
Eastern and Clayton. For example, in his deposition, Dietz, the
lineman on Clayton’s crew, testified that, on the day of the
incident, Downes directed Dietz to go disconnect the jumpers at
Pole 136. (Dietz Dep. 124:25-125:3.) Dietz also explained that
jumpers were being disconnected, instead of air switches,
because Downes wanted to minimize the power outage to buildings
in the area. (Dietz Dep. 125:9-21.) Dietz explained that Downes
14
made the decision regarding the method by which the team would
work on Pole 123: “It didn’t get into a heated discussion, but
[Downes] made the decision that we were going to lift the taps
so that we wouldn’t lose the power. And that was it.” (Dietz
Dep. 199:2-6.) In addition, the Eastern team had begun set-up
work for Pole 123 on June 20th, but Downes “told us to stop
working on it on Friday, we had to stop working on it and come
down.” (Dietz Dep. 157:16-21.)
In addition to the testimony of Eastern crewmember Dietz,
there is other evidence indicating that Downes had a supervisory
role. For example, Frances Chiang, President of NorthStar,
submitted a declaration stating, “The pole replacement
specifications were developed by Eastern and the Army. Bobby
Downs from the Army was the final say in the specifications and
Eastern followed their lead.” (Docket Item 58-7 ¶ 9.) Narendra
Mohan, Northstar’s Business Manager, made a similar declaration:
“The pole replacement specifications were developed by Eastern
and the Army. The Army was the final say in the specifications
and Eastern followed their lead.” (Docket Item 58-8 ¶ 8.) Luis
Bolanos, Eastern’s President and Owner, testified that the
decision of whether to replace pole 123 while wires were still
energized or while they were shut down “would have been a
determination done by my superintendent in the field and Mr.
Downes at the base.” (Bolanos Dep. 306:14-17.)
15
Downes himself described actions that a reasonable factfinder could interpret as indicative of a supervisory
relationship. For example, on June 2, 2008, Downes emailed Luis
Bolanos to request that, for the upcoming work week, the Eastern
team have “temporary high voltage jumpers, high voltage phasing
tester, and have them meet me at my office before any work
starts.” (Docket Item 48-25; see also Downes Dep. 186:7:13.)
Downes also testified that, on the day of Clayton’s accident, he
noticed that Clayton was working without his helmet, and Downes
“got out of the car and yelled at him to put his helmet on,
which he came down and put his helmet on.” (Downes Dep. 84:1418.) These instances in which Downes specified the equipment
that the Eastern team should be using would allow a reasonable
fact-finder to conclude that he “control[ed] the detailed
physical performance” of the job. See Logue v. United States,
412 U.S. 521, 528 (1973).
Charles E. Miller, the third member of the Eastern crew
with Dietz and Clayton, submitted a statement on July 23, 2008
in which he stated that he believed that Downes and Deitz were
supposed to verify that power was off. (Docket Item 58-9 at 3.)
When Miller was asked who supervised Dietz, Miller responded
that Downes did. (Docket Item 58-9 at 3.) In a recorded
statement, also on July 23, 2008, when asked to whom Clayton
reported, Miller said, “It’s my understanding that Bobby Downs
16
[sic] was the one that controls the job here and the contract.”
(Docket Item 58-10 at 5.) In addition, in response to the
question “Who’s responsibility again was it to shut down the
lines?” Miller said:
Michael Dietz himself was the one that actually would
go up in the air in the truck and do the work of
shutting off the poles. Now Bobby Downs [sic] was the
one that was in charge of this week [sic] and the pole
lines and the pallets all put together. He’s the one
that made aware of whether the electricity of coming
from, which pole was to feed so this is the man that
should have had the plan in my eyes laid out for us to
whether even if he had a mistake like this it
shouldn’t have happened.
(Docket Item 58-10 at 10-11.)
In its Reply [Docket Item 66], the Army argued that
Miller’s testimony was “wholly speculative and conclusory” and
“nothing more than his own self-described beliefs, opinions,
understandings and guesses, based on no identified admissible
facts.” (Army Reply at 5-7.)
First, the Court notes that, even absent Miller’s
testimony, there is ample evidence to show a reasonable factfinder that the Army exercised supervisory control. Second, the
Court notes that “[c]redibility determinations, the weighing of
the evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge. . . .” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A jury could
conclude that Miller’s statements lack credibility, but, at this
17
procedural posture, the Court must view the evidence in the
light most favorable to the Plaintiff.
The Army’s motion for summary judgment on the grounds that
the Army did not supervise Clayton and the Eastern employees
will be denied because there are genuine issues of material fact
regarding whether the Army supervised Clayton.
3. The Sufficiency of Plaintiff’s Administrative Notice
The Army also argues that the administrative claim form
only provided notice of a failure to supervise claim and, as a
result, all other claims must be barred for lack of notice.
The FTCA requires claimants to first provide administrative
notice to government agencies before filing a lawsuit. 28 U.S.C.
§ 2675(a). “Although an administrative claim need not propound
every possible theory of liability in order to satisfy section
2675(a), a plaintiff cannot present one claim to the agency and
then maintain suit on the basis of a different set of facts.”
Roma v. United States, 344 F.3d 352, 362 (3d Cir. 2003)
(internal citation omitted). Notice will “satisf[y] section
2675's requirement if the claimant (1) gives the agency written
notice of his or her claim sufficient to enable the agency to
investigate and (2) places a value on his or her claim.” Roma at
362-63. The purpose behind this requirement is “to provide a
procedure under which the government may investigate, evaluate
18
and consider settlement of a claim.” Owen ex rel. Estate of
O'Donnell v. United States, 307 F. Supp. 2d 661, 665 (E.D. Pa.
2004).
Plaintiff submitted an administrative claim form that
stated the following: “Steven Clayton was working as the
employee of an electrical contractor at US Army Garrison Fort
Hamilton, Brooklyn, NY when he contracted a live high voltage
wire and was electrocuted. At the time of the electrocution,
Steven Clayton was . . . being observed and supervised by a
United States government electrician, Robert Downs.” (Docket
Item 48-4.) Plaintiff’s Complaint provides 48 bases for
liability against the United States. 6 The Army argues that it
6
The 48 bases of liability against the United States are: a.
Failing to provide plaintiff’s decedent a safe place in which to
work; b. failing to adequately inspect the project for hazardous
conditions; c. Failing to coordinate with other entities,
subcontractors, and independent contractors; d. Failing to
design, maintain, engineer, fabricate, supervise, establish and
approve proper and adequate plans for the work to be performed;
e. Failing to adopt, enact, employ, enforce, and approve proper
and adequate safety programs, precautions, procedures, measures,
and plans; f. Failing to properly supervise, oversee and inspect
the electrical work, which included high voltage work; g.
Failing to perform a safety task analysis; h. Exposing
Plaintiff’s decedent to peculiar and unreasonable risks and
dangers; i. Failing to stop and/or case all electrical work
until proper and necessary precautions were taken to safeguard
workers . . .; j. Failing to provide plaintiff’s decedent . . .
a safe method for the performance of their work; k. Maintaining
a dangerous work site; l. Failing to ensure that the work was
done in a proper and safe manner; m. Failing to ensure that all
contractors . . . were in compliance with OSHA regulations,
industry safety practices, . . .; n. Violating and failing to
comply with applicable federal, state, and local statutes,
19
only had notice of Plaintiff’s failure to supervise claim and
all other bases for liability must be dismissed for failure to
ordinances, rules, . . .; o. Violating applicable OSHA
regulations; p. Failing to approve, implement, and require
safety-related work practices; q. Failing to ensure that workers
exposed to electrocution hazard were trained in CPR; r.
Breaching its duties under various sections of the Restatement
of Torts . . .; s. Committing serious violations of the
regulations of the [OSHA]; t. Failing to ensure through proper
supervision and inspections that each worked used safety related
work practices . . .; u. Failing to train and ensure that
persons trained in first aid including CPR were available . . .;
v. Failing to ensure that all . . . known sources of electrical
energy . . . were . . . rendered inoperable . . .; w. Failing to
ensure that the lines and equipment to be worked on were tested
and de-energized . . .; x. Failing to ensure that protective
grounds were installed . . .; y. Failing to . . . exercise a
high degree of care to protect workers . . .; z. Failing to take
appropriate protective and preventative measures; aa. Failing to
ensure that the jumpers were disconnected; bb. Failing to ensure
that the wires were tested; cc. Failing to ensure that the wires
were grounded; dd. Knowingly allowing work on lines without deenergizing the lines; ee. Failing to have a defibrillator on the
premises; ff. Failing to require and approve a full, final, and
complete Site Safety and Health Plan; gg. Failing to require and
approve a full, final, and complete Accident Prevention Plan;
hh. Failing to ensure that workers were wearing their personal
protective equipment; ii. Failing to ensure the safety of those
working on the high voltage lines; jj. Failing to ensure that
the high voltage lines were de-energized; kk. Failing to warn
workers of the dangerous conditions; ll. Failing to conduct,
attend, and participate in Pre-Construction Safety Meetings; mm.
Failing to ensure the presence of a project manager,
superintendent, and safety manager; nn. Allowing contractors to
do work and continue to work without an approved plan; oo.
Allowing contractors to work and continue to work, despite
knowledge of OSHA and safety violations; pp. Proceeding with a
plan to disconnect jumpers when defendant knew and should have
known this was a hazardous, dangerous plan; qq. Failing to
consider, recommend, and employ safer alternative plans; rr.
Failing to disconnect electrical service . . .; ss. Failing to
disconnect or open up the air switch . . .; tt. Failing to
disconnect or open up the cutout . . .; uu. Failing to provide
proper equipment and safety devices to workers; and vv. Failing
to properly train and supervise workers. (Compl. ¶ 19.)
20
comply with the FTCA. The Army cites the Roma case in support of
this argument. In Roma, a fireman sued the United States because
of injuries he sustained while fighting a fire. The fireman made
two distinct factual claims: first, he alleged that the United
States was liable for negligently starting or failing to prevent
the fire; and, second, he argued that the federal defendants
negligently instructed him to remove his breathing apparatus,
which caused him to suffer smoke inhalation injuries. In his
FTCA claim form, the plaintiff only said, “[C]laimant was
ordered to remove his breathing respirator. . . . claimant
sustained significant damage to his respitory [sic] system.”
Roma at 358. The Third Circuit held that “the facts concerning
how the fire started and any negligence by federal employees in
failing to prevent it are entirely distinct from the conduct
involved in supervising the firefighting operations, including
the [federal] firefighter’s instruction to Roma to remove his
[breathing apparatus].” Roma at 363. The Third Circuit dismissed
Roma’s claims regarding negligently starting or failing to
prevent the fire.
Determining whether an administrative claim form provides
adequate notice is a fact-specific inquiry. The Court must be
mindful of the purpose behind the FTCA’s notice provision, i.e.
to give federal agencies sufficient notice to investigate
claims. In this case, the Court finds that Plaintiff’s claim
21
form provided sufficient notice of almost all the 48 bases of
liability. The claim form’s reference to Downes’ supervision of
the decedent gave investigators notice to examine the manner in
which Clayton was working, the equipment he was using, the plan
he was implementing, and the workers’ alleged failure to comply
with regulations.
The Court does find, however, that the Plaintiff’s claim
form does not provide adequate notice of the bases of liability
that involve inadequate medical training and insufficient
availability of medical resuscitation equipment. Those grounds
are not connected to the adequacy of supervision, and the claim
form did not provide notice of them. The Court will therefore
dismiss the following three bases for liability: q. Failing to
ensure that workers exposed to electrocution hazard were trained
in CPR; u. Failing to train and ensure that persons trained in
first aid including CPR were available . . .; and ee. Failing to
have a defibrillator on the premises.
The United States’ motion for summary judgment will be
granted as to sub-parts q, u, and ee of Count I and will be
denied as to the remaining 45 sub-parts.
4. New York Tort Law Does Not Preclude the Army’s
Liability
The Army’s final argument is that the Army did not owe a
duty of care under New York tort law because the work performed
22
was inherently dangerous and carried out in a careless manner.
The Army argues that (1) a landowner need not provide a safe
place to work when the hazard that the worker encounters is
inherent in the work the employee is hired to perform; (2) a
landowner will not be held responsible for a contractors’
defective or negligent acts in performing the contracted work;
and (3) a worker may not hold others responsible if he elects to
perform his job carelessly. The Court will address each argument
in turn. For the reasons explained below, the Army’s motion will
be denied because New York tort law does not preclude liability
when there are material issues of disputed fact regarding the
landowner’s supervision of the contractor. 7
7
New Jersey tort law yields the same result because, under New
Jersey law, a landowner or general contractor’s “supervision of
or active participation in the manner of work of the
subcontractor may result in the imposition of a broader duty of
care, premised essentially on the emergence of a sufficient
degree of detailed superintendence over the latter's employees
as to invoke a legal relationship analagous to that of masterservant.” Wolczak v. Nat'l Elec. Products Corp., 66 N.J. Super.
64, 70-71 (App. Div. 1961). In this case, there are material
issues of disputed fact regarding the Army’s supervision of
Clayton and, therefore, the Army’s motion for summary judgment
merits denial under both New Jersey and New York tort law. The
Court devotes considerable attention to the specifics of New
York tort law because the Army has exclusively cited New York
tort law, and the Court seeks to fully address all of the Army’s
arguments.
23
a. Inherent Hazard Exception
The Army argues that its general duty as a landowner or
general contractor to provide a safe place to work does not
apply when the hazard that the worker encounters is inherent in
the work that the employee is hired to perform. New York Labor
Law § 200 and New York common law impose upon owners and general
contractors a duty “to provide employees with a safe place to
work.” Anderson v. Bush Indus., Inc., 280 A.D.2d 949, 950, 720
N.Y.S.2d 699 (2001). There are exceptions to this rule. “The
duty does not extend to hazards which are part of or inherent in
the very work which the contractor is to perform.” Id. at 950.
In addition, “an owner does not owe a duty to protect a
contractor's employee from hazards resulting from the
contractor's methods over which the owner exercises no
supervisory control.” Id. at 950.
The Court finds that the Army is not entitled to summary
judgment on these grounds because the cases that the Army cites
either involve situations where the injured party was aware of
the dangerous condition’s existence or where the defendant
exercised no supervisory control. The Army cites Wolfe v. Teele,
223 A.D.2d 854, 636 N.Y.S.2d 198, 199 (1996), in which the New
York Appellate Division held that an employee who fell on ice
while sanding an icy parking lot was not entitled to relief
because “owners of real property are not responsible to one
24
injured through a dangerous condition which condition the
injured individual had set about to remedy.” Id. at 854. The
Wolfe court emphasized that the plaintiff slipped “on the very
icy condition he was undertaking to eliminate.” Id. at 854.
Wolfe does not support the Army’s argument because the Wolfe
plaintiff was aware that the parking lot was icy. In this case,
the facts indicate that Clayton did not know that the wire was
energized and that, according to the work plan that Clayton was
implementing and that Downes helped devise, the wire was
supposed to be de-energized.
In addition, the Court finds that there is a material issue
of disputed fact regarding the extent of supervisory control
that the Army exercised over Clayton’s work. Several of the
cases that the Army cites note that the hazard was inherent,
that the defendant-employer lacked supervisory control over the
plaintiff’s work, and that the accident was due to the
plaintiff’s methods of doing the work. For example, the Army
cites Anderson, in which the New York Appellate Division held
that a UPS driver was not entitled to relief for a nerve injury
stemming from lifting boxes from the defendant’s warehouse
because “the hazard of being injured as a result of repeatedly
lifting heavy boxes is inherent in the work of a UPS driver.”
Id. at 950. The Anderson court noted that UPS “determine[d] the
manner in which the work was to be performed” and that “the
25
injury was the result of the methods utilized by the plaintiff’s
employer,” not the defendant. Id. at 950.
The Army also cites Gasper v. Ford Motor Co., 13 N.Y. 2d
104, 192 N.E.2d 163 (1963), in which the New York Court of
Appeals held that the defendant-manufacturer was not liable for
injuries suffered by a plaintiff who was working as a contractor
to clean the windows at the manufacturing plant. The Gasper
court noted that “the choice of equipment and manner of
performing the work was left entirely to the discretion of the
master window cleaners. They were in complete charge of the
manner and method of prosecuting the work.” Id. at 108. This
fact was particularly important because “[t]he accident did not
occur because of a defect in the defendant’s plant, . . .
but
because of the method employed by decedent in the performance of
his work. . . .” Id. at 111. Gasper does not call for summary
judgment in this case because there are disputed issues of
material fact regarding whether the Army was in charge of the
manner and method of prosecuting the work.
The Army cites Reynolds v. International Paper Co., 249
A.D. 2d 727, 671 N.Y.S. 2d 813 (3d Dept. 1998) in which the
court held that a logger was not entitled to relief because
loose tree limbs were “a danger inherent in logging activity.”
Id. at 729. The Reynolds court noted that the ultimate
responsibility for checking for loose limbs lay with the logger26
plaintiff. For that reason, this case could be interpreted to
support the Army’s argument since there is ample evidence in the
record that Clayton did not test whether the wires were live
before he touched them. But the Reynolds court also noted that
the defendant “did not supervise or control the manner in which
the trees were harvested.” Id. at 728. The Reynolds court
distinguished its facts from a different case, Lincoln v.
Landvest Inc., 202 A.D.2d 933, 609 N.Y.S.2d 697 (1994), in which
summary judgment was not appropriate because, in Lincoln, “[t]he
logger testified to an almost year-long pattern of working with
a particular tree marker upon whose markings he had come to
reply, including presuming that the marker had followed required
safety procedures prior to cutting.” Reynolds at 729. The Court
finds that there are disputed issues of fact regarding the
extent of the Army’s supervision of Clayton, particularly
because Downes, the Army’s representative, had such a longstanding relationship with Dietz, the lineman on Clayton’s crew,
and Downes was involved in directing when Clayton would do his
work and when and perhaps how the line would be de-energized.
Given the particularities of the relationship between the
Army and the Eastern crew, the questions regarding the extent of
the Army’s supervisory control, and the questions regarding the
Army’s decisions regarding the method of work performance, the
27
Court will deny the Army’s motion for summary judgment on the
grounds that electrocution is an inherent hazard.
b. A Contractor’s Defective or Negligent Acts
The Army argues that a landowner cannot be held responsible
for a contractor’s defective methods or negligent acts in
performing the contracted work. In New York, “the duty to
provide a safe place to work is not breached when the injury
arises out of a defect in the subcontractor's own plant, tools
and methods, or through negligent acts of the subcontractor
occurring as a detail of the work.” Persichilli v. Triborough
Bridge & Tunnel Auth., 16 N.Y.2d 136, 145, 209 N.E.2d 802
(1965). This rule changes, however, when the owner has
supervisory control: “unless the owner assumes direct
supervision and control over the independent contractor's
operations, he is not responsible ordinarily for the manner in
which those operations are performed by the contractor or its
employees.” Lubrano v. Royal Netherlands S. S. Co., 622 F.2d 29,
31 (2d Cir. 1980).
Because the Army’s level of supervision of Clayton and the
Eastern team is a disputed issue of material fact, the Court
cannot grant summary judgment on this ground. The Army cites,
inter alia, Lombardi v. Stout, 178 A.D.2d 208, 211, 577 N.Y.S.2d
592 (1991), aff'd as modified, 80 N.Y.2d 290, 604 N.E.2d 117
28
(1992), but this case specifically notes that, although there is
a general rule that an owner is not liable for the contractor’s
defective equipment or performance, “[t]here is an exception to
this rule imposed where the owner assumes direct responsibility
for the method of work performed.” Id. at 210.
In other words,
“the owner is not responsible for the negligent acts of others
over whom he had no direction or control.” Id. at 212. In this
case, the Army’s level of direction or control over Dietz and
Clayton is a disputed material fact; summary judgment will be
denied.
c. Careless Work Performance
The Army argues that, when a worker confronts the ordinary
and obvious hazards of his employment and has the time and
resources to work safely, he may not hold others responsible if
he chooses to perform his job so incautiously as to injure
himself. The Army argues that Clayton’s failure to install
protective grounds and to test the lines to confirm that they
had been de-energized shows that he performed his job so
incautiously that the Army cannot be held liable.
In New York, “[w]hen a worker “confronts the ordinary and
obvious hazards of his employment, and has at his disposal the
time and other resources . . . to enable him to proceed safely,
he may not hold others responsible if he elects to perform his
29
job so incautiously as to injure himself.” Marin v. San Martin
Rest., Inc., 287 A.D.2d 441, 442, 731 N.Y.S.2d 70 (2001).
The Army is not entitled to summary judgment on this
ground. First, as discussed extensively above, the Army’s
control over Clayton’s job performance is a disputed material
fact. If a reasonable fact-finder could find that the Army
exercised detailed supervisory control over Clayton’s work
performance, then a reasonable fact-finder could also find that
the Army bears some responsibility for Clayton’s allegedly
incautious decisions on June 21, 2008. At least one of the cases
that the Army cites, Marin, notes that “[a]n owner does not owe
a duty to protect a contractor's employee from hazards resulting
from the contractor's methods over which the owner exercises no
supervisory control.” Marin v. San Martin Rest., Inc., 287
A.D.2d 441-42, 731 N.Y.S.2d 70 (2001). Because a reasonable
fact-finder, giving all reasonable inferences to Plaintiff, can
find that the Army did exercise supervisory control, the Army is
not entitled to summary judgment.
In addition, in several of the cases that the Army cites,
the plaintiff was aware of the specific danger, not simply the
risk of potential danger. For example, the Army cites Bombero v.
NAB Const. Corp., 10 A.D.3d 170, 172, 780 N.Y.S.2d 333 (2004), a
case in which a concrete and steel inspector was injured while
traversing exposed rebar. The Bombero plaintiff testified that
30
“although he saw that the planking had been removed by
[defendant] and that the planking could have been easily
replaced, and although he knew traversing the exposed rebar
posed a danger, he decided to walk across the rebar, causing him
to lose his footing and to sustain an injury.” Id. at 172. The
Marin case also involves specific knowledge; the court noted
that “[a]ccording to the injured plaintiff's own account, he
elected to perform his job of lifting the garbage bag into the
back of the sanitation truck without assistance,” thus resulting
in an injury because the bag was quite heavy. Marin at 442. In
this case, the Army has not adduced any evidence to indicate
that Clayton was aware that the line was not de-energized.
In sum, there are material issues of disputed fact
regarding the Army’s supervision of Clayton. These issues
preclude summary judgment under either the FTCA or New York tort
law. The Army’s motion for summary judgment is denied, except
that it is granted with respect to all claims of Theresa Clayton
in her individual or personal capacity and it is granted as to
sub-parts q, u, and ee of Plaintiff’s Count I.
D. Meridian’s Motion for Summary Judgment
Defendant Meridian also moved for summary judgment [Docket
Item 51], arguing that it did not owe Clayton a duty of care.
Meridian’s role with the utility pole project was to ensure that
31
any buildings that were going to lose power were connected to
generators. Meridian’s motion will be granted because Plaintiff
has not shown that any disputed issues of material fact exist as
to whether Meridian owed Clayton a duty of care.
1. Parties’ Arguments
Meridian argues that its role with the Utility Pole Project
was limited to monitoring the generators that provided power to
buildings while power was off. Meridian argues that it “played
no role in designing, preparing, or implementing the Utility
Pole Project relative to de-energizing high voltage power lines
. . . and played no role in supervising, directing, or
overseeing Plaintiff Clayton or any of his coworkers.” (Meridian
Br. Supp. Mot. Summ. J. at 6.) Meridian argues that there is no
evidence that its actions were negligent or that its actions
were the proximate cause of Clayton’s accident. Because a
negligence claim will not lie, Meridian argues that any claims
of intentional or reckless conduct also fail.
Plaintiff filed opposition [Docket Item 62] arguing that
Meridian “owed a duty of care under negligence principles based
upon the foreseeability of the harm and considerations of
fairness and policy.” (Pl. Opp’n Meridian Mot. Summ. J. at 1.)
Plaintiff argues that Meridian employees owed a duty to other
subcontractors to speak up if they noticed unsafe conditions and
32
that its employees knew the importance of safe working
conditions, particularly in terms of electrical work. Plaintiff
asserts that Meridian failed to ensure that Eastern employees
followed a safer shutdown plan.
2. Meridian’s Relationship with Clayton and Eastern
Meridian had a specific role in the utility pole
replacement project: its responsibility was to ensure that
buildings losing power due to shutdowns would have power through
generators. Army representative Downes explained that Meridian’s
role
was inside of each building that was maintained on
portable and permanent generator, to make sure that it
was turned off, the generator was hooked up. They
would go in and make sure that all of the systems came
back up, that there was no issues with those systems.
And vice versa, when you bring it back off the
generator.
(Downes Dep. 206:2-9.) Thomas Mullan, a Meridian employee,
explained that, in terms of the pole replacement project,
“[t]here were probably about three buildings or more that were
going to lose power but three buildings we had to connect
generators to, and just made sure that the building didn’t lose
power.” (Mullan Dep. 38:33-39:8.) Meridian employee Louie Ruiz
also testified that, during the utility pole replacement
project, Meridian’s role was to “set up generators for temporary
33
power . . . during the shutdown to support power maintenance . .
. for the buildings.” (Ruiz Dep. 68:25-69:4.)
Meridian employees testified that they did not participate
in the high voltage shutdown work. Ruiz stated:
[W]e would get out direction from our supervisor, we
are going to set up X amount of generators, X, Y, Z
buildings, and that was our area, that was the end of
that. Everything else with the shutdown, we had
nothing to do with the actual shutdown of the flow of
current on the high voltage side.
(Ruiz Dep. 88:19-25.) Ruiz further explained that high voltage
shutdown work is “not my area,” (Ruiz Dep. 31:10-16), and that
“I know how to do [electrical shutdowns], but I don’t do that.
That’s not my place,” (Ruiz Dep. 32:12-14). When Ruiz was asked
whether, before the accident occurred, he had any understanding
of “how they were going to effect the shutdown, how they were
going to de-energize the lines,” Ruiz replied, “No, that wasn’t
our area. We weren’t involved in that.” (Ruiz Dep. 87-88:25-6.)
Conversely, Eastern’s employees testified that they were
not involved with the generator aspect of the project. When
asked about the availability of generators during power
shutdowns, Dietz, Eastern’s lineman, testified, “Oh, I don’t
know about availability of generators. I don’t deal with that.”
(Dietz Dep. 186:4-9.) When Dietz described the development of
the work plan to replace pole 123, he never mentioned Meridian.
34
All the Meridian and Eastern employees testified that they
did not know each other, did not work together, and had no
supervisory relationships with each other. When asked at
deposition whether he was familiar with Meridian, Dietz
testified that “I’ve heard of it somewhere.” (Dietz Dep. 100:1215.) When asked whether he knew Ruiz or Mullan, Dietz testified
that he did not recognize their names. (Dietz Dep. 100:16-22.)
Mullan testified that he recognized the name “Eastern
Construction & Electric” because he had seen their trucks.
(Mullan Dep. 32:2-8.) Mullan stated that Eastern never provided
any direction or instruction to him, and he never provided any
direction or instruction to Eastern. (Mullan Dep. 45:13-22.)
Mullan said “It wasn’t my concern what [the Eastern employees]
were doing.” (Mullan Dep. 54:23-24.) Ruiz also testified that he
did not provide any directions or instructions to any Eastern
employee, and Eastern did not provide any directions or
instructions to him. (Ruiz Dep. 81:8-17.)
3. Meridian Did Not Owe a Duty of Care
As explained in the choice of law section above, the Court
must apply the law of New York, which is the location of the
electrocution incident, to determine whether New York or New
Jersey law applies. New York law mandates that the first step is
to determine whether there is a conflict of laws. Under either
35
New Jersey or New York law, Meridian did not owe a duty of care
to Steven Clayton.
a. Meridian Had No Duty of Care Under New Jersey Law
Plaintiff has not shown that any issue of material disputed
fact exists with regard to Meridian’s involvement such that
Meridian owed a duty of care to Clayton. 8 In New Jersey,
[a] major consideration in the determination of the
existence of a duty of reasonable care under general
negligence principles is the foreseeability of the
risk of injury. . . . In addition, the determination
of such a duty involves identifying, weighing, and
balancing several factors--the relationship of the
parties, the nature of the attendant risk, the
opportunity and ability to exercise care, and the
public interest in the proposed solution.
Alloway v. Bradlees, Inc., 157 N.J. 221, 230, 723 A.2d 960, 964
(1999).
Plaintiff argues that the accident was foreseeable to
Meridian employees and, therefore, that Meridian owed Clayton a
duty of care. Plaintiff points to an August 25, 2008 statement
that Louie Ruiz made discussing the June 21, 2008 accident. Ruiz
stated
8
Plaintiff argues that whether a defendant breached a duty of
care and whether defendant’s actions were the proximate cause of
a plaintiff’s injuries are questions for the factfinder. Whether
or not the question of a breach of duty must be determined by
the factfinder, the fact remains that Plaintiff has not
established the first requirement, i.e. that there is a genuine
issue of material fact regarding whether Meridian had any duty
of care.
36
I told [Meridian employee] Mr. Mullan “If someone
listened to us this wouldn’t happened.” . . . I was
talking to my partner Mr. Mullan about the plan layout
Mr. Downes gave us. We were asking ourselves why they
did not disconnected the air switch and the cutouts on
poles 249 and 137, which we thought it was safer to
disconnect and power up building 201 with a generator.
We had another generator in case they wanted to shut
down 201 but nobody asked for it.
(Docket Item 62-2 at 2.) Plaintiff also notes that Mullan stated
at his deposition that “If Eastern wanted to be safe they needed
to open the air switch on 249 and lock it. But they wanted to
keep the power on 201. I don’t know who made this decision. . .
. This was a preventable accident.” (Pl. Opp’n Meridian Mot.
Summ. J. at 9.) Even assuming that the accident was foreseeable
to Meridian employees, the “ability to foresee injury to a
potential plaintiff does not in itself establish the existence
of a duty.” Carvalho v. Toll Bros. & Developers, 143 N.J. 565,
572, 675 A.2d 209, 212 (1996).
Plaintiff has not shown that any genuine issue of material
fact exists to show that the Meridian had any relationship with
Clayton or that Meridian had the opportunity and ability to
prevent the accident. Plaintiff notes that Meridian was required
“to provide all management, supervision, personnel, . . . and
safety equipment . . . necessary to perform all requirements of
the Performance Work Statement.” (Pl. Opp’n Meridian Mot. Summ.
J. at 2.) The Performance Work Statement involved “housing
services, operation, maintenance, and repair of real property
37
facilities.” The Work Statement required Meridian to take
“proper safety and health precautions to protect the work, the
employees, the public and property of others” and that Meridian
“shall require the use of safety equipment, personal protective
equipment, and devices necessary to protect the employee.” (Id.
at 3.)
Plaintiff has not adduced any evidence that could show a
reasonable fact-finder that Clayton was an employee of Meridian
or that Meridian’s contractual obligations to conduct work
safely applied to the replacement of the high voltage utility
poles. The fact that Meridian’s contract required it to conduct
its operations safely does not mean that Meridian had a duty to
conduct the utility pole replacement project safely. Plaintiff
has not pointed to any aspect of the Performance Work Statement
stating that Meridian has obligations to conduct or supervise
high voltage electrical work. Plaintiff has emphasized that
Meridian’s employees made statements after-the-fact suggesting
that the approach to de-energizing pole 123 was unsafe and that
Meridian employees had a policy of speaking up if they observed
unsafe conditions. Even if Meridian’s employees had known about
the unsafe approach before the accident, Plaintiff has not
adduced any evidence to show a reasonable fact-finder that
Meridian had the opportunity or authority to dictate how pole
123 should be replaced.
38
Plaintiff cites two New Jersey cases to support her
argument that Meridian owed a duty of care, but these cases
support summary judgment for Meridian. First, Plaintiff cites
Alloway v. Bradlees, 157 N.J. 221 (1999), in which the New
Jersey Supreme Court held that a general contractor owed a duty
of care to a subcontractor’s employee who was injured by a
defective piece of the subcontractor’s equipment. The general
contractor in Alloway had once repaired the defective piece of
equipment and, after the plaintiff reported more problems, the
general contractor called plaintiff the day before the accident
and told her that it would be repaired or replaced by the next
day. It was not repaired or replaced, and the equipment severely
injured the plaintiff. In the present case, Plaintiff has not
adduced any evidence indicating that Meridian had any role with
the equipment that Steven Clayton used. In addition, in Alloway,
the principal owner of the subcontractor was a superintendent
for the general contractor. The Alloway court held that “there
was a substantial and close relationship between the parties
that could and did implicate workplace safety concerns.” Alloway
at 232. In the present case, Plaintiff has not adduced any
evidence showing a genuine issue of material fact regarding
whether any relationship existed between Meridian and Clayton or
Eastern.
39
Plaintiff also cites Carvalho v. Toll Bros. and Developers,
143 N.J. 565 (1996), in which the New Jersey Supreme Court held
that an engineer had a duty to exercise care for the safety of
workers when the engineer has a contractual responsibility for
the progress of work and was aware of unsafe working conditions.
The Carvalho court noted that the engineer had the contractual
authority to stop work on the project and that “there was an
overlap of work-progress considerations and work-safety
concerns.” Carvalho at 575. The Carvalho court also noted that
“[t]he element of control arising from the relationship between
the parties and the opportunity and capacity of defendant to
have avoided the risk of harm are also relevant in considering
the fairness in imposing a duty of care.” Carvalho at 576. In
the present case, Plaintiff has not adduced any evidence
indicating that Meridian had any control over Clayton’s work.
Essentially, Meridian did not owe a duty of care under New
Jersey law because no reasonable fact-finder could find that
there was a relationship between the parties or that Meridian
had either the opportunity or the ability to influence Clayton’s
work.
b. Meridian Had No Duty of Care Under New York Law
In New York, “[t]he threshold question in any negligence
action is: does defendant owe a legally recognized duty of care
40
to plaintiff?” Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222,
232, 750 N.E.2d 1055, 1060 (2001), opinion after certified
question answered, 264 F.3d 21 (2d Cir. 2001). New York courts
traditionally
fix the duty point by balancing factors, including the
reasonable
expectations
of
parties
and
society
generally, the proliferation of claims, the likelihood
of
unlimited
or
insurer-like
liability,
disproportionate risk and reparation allocation, and
public policies affecting the expansion or limitation
of new channels of liability.
Id. at 232. The New York Court of Appeals explained its
reluctance to extend liability to defendants for their failure
to control others’ conduct:
We have been cautious, however, in extending liability
to defendants for their failure to control the conduct
of others. . . . This judicial resistance to the
expansion of duty grows out of practical concerns both
about potentially limitless liability and about the
unfairness of imposing liability for the acts of
another. A duty may arise, however, where there is a
relationship either between defendant and a thirdperson tortfeasor that encompasses defendant's actual
control of the third person's actions, or between
defendant and plaintiff that requires defendant to
protect plaintiff from the conduct of others. . . .
The key in each is that the defendant's relationship
with either the tortfeasor or the plaintiff places the
defendant in the best position to protect against the
risk of harm.
Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 232-33, 750
N.E.2d 1055, 1061 (2001), opinion after certified question
answered, 264 F.3d 21 (2d Cir. 2001). As explained above,
Plaintiff has not shown that any genuine issue of material fact
41
exists as to whether Meridian had a relationship with Steven
Clayton such that it could control his actions or such that it
was in the best position to protect against the risk of harm.
Under New York law, the outcome is the same as under New Jersey
law: No reasonable fact-finder could find that Meridian owed
Plaintiff a duty of care.
4. Plaintiff’s Request for Additional Time Is Denied
The Plaintiff requests that, if the Court finds Meridian’s
motion to be meritorious, then the Court should defer
consideration or deny the motion to allow plaintiff additional
time until after plaintiff’s expert witness deadline pursuant to
Fed. R. Civ. P. 56(d). 9
Plaintiff’s request is denied. Fed. R. Civ. P. 56(d)
specifically addresses the circumstance where “facts are
unavailable to the nonmovant” and allows a nonmovant to “show[]
by affidavit or declaration that . . . it cannot present facts
essential to justify its opposition. . . .” Fed. R. Civ. P.
9
Expert discovery has been stayed, pursuant to an amended
scheduling order [Docket Item 44], pending the resolution of
summary judgment motions. As explained below, expert witness
discovery will not create genuine issues of material fact
regarding whether Meridian and Clayton had a relationship, since
the existence of a relationship is a factual question. In
addition, if Plaintiff believed that expert witness discovery
was necessary to oppose summary judgment motions, Plaintiff
should not have agreed to stay such discovery pending the
resolution of the summary judgment motions.
42
56(d). Plaintiff has not submitted any affidavit or declaration,
nor has Plaintiff indicated that there are facts essential to
its opposition that it cannot present. Expert witness discovery
will not develop the factual record and will not create genuine
issues of material fact regarding whether a relationship existed
between Meridian and Eastern, which is a factual matter.
Meridian’s motion for summary judgment is granted.
VI. CONCLUSION
The United States’ motion for summary judgment is granted
with respect to all claims of Theresa Clayton in her individual
or personal capacity because Theresa Clayton did not file an
administrative notice under the FTCA. The word “individually”
shall be deleted from the case caption, which shall now read
“Plaintiff Theresa Clayton, as Administratrix . . . of the
Estate of Steven Clayton. . . .” The United States’ motion for
summary judgment on the grounds of lack of administrative notice
will be granted as to sub-parts q, u, and ee of Plaintiff’s
Count I, which alleges negligence. The United States’ motion for
summary judgment will be denied in all other respects because
material issues of disputed fact exist regarding the extent of
the United States’ supervision of decedent Steven Clayton.
Meridian Management Corporation’s motion for summary
judgment will be granted because Plaintiff has not shown that a
43
genuine issue of material fact exists regarding whether Meridian
owed Plaintiff a duty of care. All claims against Defendant
Meridian Management Corporation are dismissed.
The accompanying order shall be entered.
December 18, 2012
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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