The opinion of the court was delivered by: GERARD L. GOETTEL
The primary action in this case is brought by plaintiff Gary Lee Mauney to recover for injuries sustained when he was a replacement worker during a labor dispute between defendant Imperial Delivery Service, Inc. ("IDS") and defendant Newspaper and Mail Deliverers' Union of New York and Vicinity ("NMDU" or the "Union"). IDS has filed a third-party complaint alleging that a number of private security agencies connected to IDS, as well as the City of New Rochelle and two of its officials, were responsible for Mauney's injuries. Most of the third party defendants now move for a summary judgment.
On May 21, 1992 a bus apparently owned and operated by third-party defendant Academy Bus Tours, Inc. was transporting Mauney and other replacement workers to the IDS newspaper distribution facility in New Rochelle, New York. Close to IDS's facilities (the exact position of the incident is disputed), the bus encountered a number of NMDU pickets. As the bus passed the pickets, Robert Boyle, an NMDU member, threw a rock which passed through a window of the bus and struck Mauney in the head.
According to Mauney's complaint, on March 5, 1993, defendant Robert Boyle pled guilty to charges of second degree assault and possession of a deadly weapon, stemming from the rock-throwing incident.
Prior to this sad incident, both IDS and the New York Times Company (for which IDS provided delivery services) had obtained legal rulings against NMDU. On May 15, 1992, Judge Leval, then of the Southern District of New York, issued an order requiring NMDU to pay $ 100,000 to the Times for violating a temporary restraining order of May 7, 1992, and a contempt order of May 11, 1992. See New York Times Company v. Newspaper and Mail Deliverers' Union of New York and Vicinity, 1992 U.S. Dist. LEXIS 6738, No. 92 Civ. 3345 (PNL) (S.D.N.Y. May 15, 1992). Judge Leval's order, and the previous contempt order, described violent efforts by NMDU members to prevent the distribution of the New York Times newspaper. Although most of the violence was apparently directed against equipment, Judge Leval's order described one incident in which rocks and bottles were thrown at "a Times escort car," whose driver was "almost hit by a fired ball bearing." Id. at 2.
IDS obtained a preliminary injunction from New York Supreme Court Justice Alfred N. Lama on May 12, 1992. The preliminary injunction limited the number and position of picketers at IDS's New Rochelle facility, and declared that NMDU and its members were enjoined from, inter alia, inflicting or threatening to inflict violence on employees of IDS and associated individuals, and from carrying "clubs, rocks or any other weapon at or near the Facilities." Imperial Delivery Service, Inc. v. Newspaper and Mail Deliverers Union of New York and Vicinity, No. 92-07819, slip op. at 3 (N.Y. Sup. Ct. May 12, 1992).
Justice Lama's preliminary injunction also ordered law enforcement agencies to enforce the injunction. On May 15, 1992, a law firm retained by IDS sent a letter to the New Rochelle Commissioner of Police (third-party defendant Michael Armiento) requesting that the police comply with the terms of the preliminary injunction, and complaining about the police department's earlier alleged failure to comply with the injunction.
In May, 1993, Mauney filed a complaint initiating the primary action in this case. In October, 1993, IDS filed its third-party complaint, seeking contribution and/or indemnification from the third-party defendants named in the above caption. On June 17, 1994 Mauney moved for leave to amend his complaint to assert a direct cause of action against all the third-party defendants.
Currently before us are Mauney's motion for leave to amend, and motions by most of the third-party defendants opposing Mauney's motion and moving for a summary judgment on IDS's third-party complaint. The third-party defendants are also seeking to resolve cross-claims involving other third-party defendants and defendant NMDU.
At the time the instant motions were filed, the bulk of discovery had yet to occur.
To prevail on a motion for summary judgment, the moving party must demonstrate "that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In making this determination, we must resolve all ambiguities and draw all inferences in favor of the non-moving party. Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991). Summary judgment is only warranted when no reasonable trier of fact could find for the non-moving party. Murray v. National Broadcasting Co., 844 F.2d 988, 992 (2d Cir.), cert. denied, 488 U.S. 955, 102 L. Ed. 2d 380, 109 S. Ct. 391 (1988).
1. Private Security Agencies' Liability to Plaintiff
We begin with a discussion of the private security agencies' liability to Mauney. This issue bears on Mauney's motion to amend his complaint to add the third party defendants as direct defendants, since the private security agencies argue that they have no possible liability to Mauney. This issue also bears on the private security agencies' motions for a summary judgment on IDS's claim for indemnification and/or contribution, since IDS clearly has a right to indemnity or contribution if the private security agencies may be liable to Mauney.
The private security agencies' arguments that they should be granted a summary judgment on the issue of their liability to Mauney fall into three categories: first, that they had no contractual duty to Mauney, second, that they owed Mauney no duty in tort, and third, that even if they did owe a duty, their actions or omissions cannot be considered a proximate cause of Mauney's injuries.
i. Scope of Contractual Duty
IDS argues that Mauney, and the replacement workers in general, were third-party beneficiaries of the various contracts between IDS and the private security agencies. The private security agencies disagree. Issues of fact as to the specifics of the relevant contracts, most of which are oral, preclude granting a summary judgment to the private security agencies on this issue.
Huffmaster has presented an affidavit from a Huffmaster executive stating that its oral agreement with IDS simply required Huffmaster to provide "Road Response Teams" to follow trucks delivering newspapers, and document illegal activities involving these trucks. Thus, Huffmaster concludes, it had no duty with regard to buses delivering replacement workers. IDS, however, has presented an affidavit from Thomas Lally, IDS's Director of Security, stating that Huffmaster had agreed, inter alia, to generally protect the replacement workers.
Third-party defendant Security Enforcement Bureau, Inc. ("SEB") claims that under its oral agreement with IDS it was only to provide guards within the IDS facility, and thus it can have no liability for an injury that occurred on a public roadway. IDS counters that SEB also agreed to monitor activities outside the IDS facility and to notify the police if there appeared to be danger or a threat of danger to property or persons, including the replacement workers.
Third-party defendant T & H Security, Inc. d/b/a Citadel Security Agency ("Citadel") makes a claim similar to SEB's, which is similarly contradicted by IDS. Although Citadel did have a written contract, it is vague as to the scope of Citadel's duties.
Third-party defendant Boyd Security Systems, Inc. ("Boyd") argues that its oral agreement with IDS merely required it to escort and protect trucks going out with deliveries. IDS, however, asserts that Boyd had agreed to generally protect and monitor the exterior of the IDS premises, including the adjacent streets.
Pro-Tech also echoes SEB and Citadel in arguing that its duties were limited to the interior of the IDS facility. This claim is, once again, contradicted by Lally, IDS's Director of Security.
In short, issues of fact regarding the scope of each private security agency's contractual responsibilities preclude granting a summary judgment to the agencies as to their contractual liability to Mauney.
The private security agencies argue that they cannot be liable in tort, citing cases such as Buckley v. I.B.I. Security Serv., Inc., 157 A.D.2d 645, 549 N.Y.S.2d 744 (2d Dep't 1990) (security guard for mall had no duty to intervene in fight among members of general public) and Bernal v. Pinkerton's Inc., 52 A.D.2d 760, 382 N.Y.S.2d 769 (1st Dep't 1976) (security guard for telephone company not liable to company employee injured by intruder on company property), aff'd, 41 N.Y.2d 938, 394 N.Y.S.2d 638, 363 N.E.2d 362 (1977). However, these and other cases cited by the private security agencies lack certain important factual elements of the instant situation, namely the evidence from the preliminary injunctions of a clear warning that replacement workers were at risk of injury from strikers, and the evidence of the private security agencies' possible contractual duties to the replacement workers.
The New York Court of Appeals' opinion in Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 557 N.Y.S.2d 286, 76 N.Y.2d 220, 556 ...