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DOUD v. UNITED STATES

July 10, 1992

JOHN R. DOUD, SR., Plaintiff,
v.
UNITED STATES OF AMERICA; MORRISON-KNUDSEN COMPANY, INC.; HUBER, HUNT AND NICHOLS, INC.; MARTIN K. EBY CONSTRUCTION COMPANY, INC.; and TIBBETS PLUMBING AND HEATING CO., Defendants. UNITED STATES OF AMERICA, Third-Party Plaintiff, -v- BLACK RIVER CONSTRUCTORS, INC., Third-Party Defendant.


McCurn


The opinion of the court was delivered by: NEAL P. MCCURN

MEMORANDUM-DECISION AND ORDER

 INTRODUCTION

 Now, defendants, M-K, Eby, and HHN, renew their motion for summary judgment pursuant to Fed. R. Civ. P. 56. In addition, defendant Tibbetts moves for summary judgment pursuant to Fed. R. Civ. P. 56 on the grounds that: (1) it is not liable to plaintiff under New York Labor Law sections 200, 240, and 241; (2) it is not liable to plaintiff under 29 C.F.R. sections 1910.28 and 1910.29; and (3) it owes no duty to plaintiff upon which any finding of negligence can be based. See Tibbetts' Memorandum of Law. Finally, the United States moves for summary judgment pursuant to Fed. R. Civ. P. 56 on the grounds that: (1) pursuant to the Federal Tort Claims Act ("FTCA"), the United States is not liable for the negligent acts of its independent contractors; (2) pursuant to the FTCA, sovereign immunity is not waived for any claim based on a discretionary function; and (3) no liability exists under New York Labor Law sections 200, 240, and 241.

 In a letter to this court dated December 20, 1991, plaintiff asserted that he had no opposition to defendants', M-K, Eby, and HHN, motion for summary judgment. See Plaintiff's Letter Dated December 20, 1991. Therefore, the court granted summary judgment to these defendants in an order dated January 28, 1992. To the contrary, plaintiff opposes both Tibbetts' and the United States' motions for summary judgment.

 BACKGROUND

 Plaintiff, John R. Doud, Sr., began working as a carpenter for Black River in May of 1988. At the time of his employment, Black River was the general contractor for a large construction project pursuant to its contract with the United States for rebuilding certain portions of Fort Drum in Watertown, New York.

 On July 27, 1988, Doud was working at a waste water treatment plant near the Wheeler Sack Airfield at Fort Drum. At the time of his accident, Doud was in the process of removing some concrete forming material from inside a twelve foot deep shaft at the water treatment plant. Prior to this assignment, the shaft had contained ordinary scaffolding; however, plaintiff had replaced this scaffolding with a makeshift scaffold which he fashioned out of ordinary 2 x 6 boards.

 Plaintiff was standing on the makeshift scaffold as he performed his assigned work. During the course of this work, the scaffold collapsed; and Doud fell approximately ten feet to the bottom of the shaft, landing upon concrete debris that he alleges Tibbetts' employees left there. As a result of this fall, Doud sustained "a permanent partial disability with loss of foot motion and faced the possible spontaneous recurrence of foot and back pain without reinjury." See Plaintiff's Memorandum of Law in Opposition to Defendants', M-K, Eby, and HHN, Motion for Summary Judgment at 4.

 A. Summary Judgment Standard

 Summary judgement is appropriate when the court is convinced that there are no genuine issues of material fact and the movants are entitled to judgment as a matter of law. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). The mere existence of some alleged factual dispute, however, will not defeat such a motion. Id. at 248, 106 S. Ct. at 2510, 91 L. Ed. 2d at . Rather Rule 56 of the Federal Rules of Civil Procedure requires that there be no genuine issue of material fact. Id. at 248, 106 S. Ct. at 2510, 91 L. Ed. 2d at (emphasis in original). The substantive law underlying the cause of action will identify which facts are material; i.e., those facts that might affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248, 106 S. Ct. at 2510, 91 L. Ed. 2d at . Nevertheless, it should be remembered that materiality is only a criterion for categorizing factual disputes in relation to the legal elements of the claim and is not a criterion for evaluating the evidence underlying the disputes. Id.

 Moreover, if the dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the non-moving party, summary judgment is not appropriate. Id. at 248, 106 S. Ct. at 2510, 91 L. Ed. 2d at ; see also General Elec. Co. v. New York Dep't of Labor, 936 F.2d 1448, 1452 (2d Cir. 1991). Thus, in deciding whether to grant summary judgment, the court's function is to determine whether there is a genuine issue for trial and not to weigh the evidence and determine the truth of the matter. Anderson, 477 U.S. at 249, 106 S. Ct. at 2511, 91 L. Ed. 2d at . Accordingly, the court must leave credibility determinations, weighing of evidence, and drawing of legitimate inferences from the facts to the jury. Id. at 255, 106 S. Ct. at 2513, 91 L. Ed. 2d at . Furthermore, in making its determination, the court must accept the non-movant's evidence as true and must draw all justiciable inferences in its favor. Id. This does not mean, however, that the non-movant may rest on mere allegations or the denials of its pleadings. Rather, it must present affirmative evidence from which a jury might return a verdict in its favor. Anderson, 477 U.S. at 256, 106 S. Ct. at 2514, 91 L. Ed. 2d at (emphasis added). This does not mean, however, that the non-movant's affirmative evidence must ensure that the jury will return a verdict in its favor. See Anderson, 477 U.S. at 257, 106 S. Ct. at 2514, 91 L. Ed. 2d at (emphasis added). Consequently, it is with these precepts in mind that the court must determine whether the United States and Tibbetts are entitled to summary judgment.

 B. United States' Motion for Summary Judgment

 In his complaint, plaintiff alleges that this court has jurisdiction over the United States pursuant to 28 U.S.C. § 1346 and the FTCA, 28 U.S.C. §§ 2671-2680. See Plaintiff's Complaint at P 7. In addition to this FTCA claim, plaintiff alleges that the United States violated "various statutes, rules and regulations, including, but not limited to, New York State Labor Law Sections 200, ...


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