co-worker hit the emergency button to stop the belt, and
American's maintenance personnel dismantled the machine to free
Waite's arm from the belt. See id. at pp. 80-81, 85-89.
American's maintenance workers then reassembled the machine,
which continued to function normally. See Deposition of John
Klinger ("Klinger Dep."), facility maintenance mechanic for
American, at pp. 29-30; Deposition of Vito Martino ("Martino
Dep."), American's supervisor of the facilities department at the
time of the accident, at pp. 54-56.
As a result of this accident, Waite suffered pain and
inflammation in his right arm, causing him to lose normal use of
his arm and hand for four months. During this time, Waite kept
his arm bandaged and in a sling. See generally, Waite Dep. at
pp. 90-108. Waite was confined to his home for two months and did
not work for almost two years. See id. at pp. 121-22. He still
has not regained full use of his right arm; Waite can now lift up
to 35 pounds but was previously able to lift up to 100 pounds.
See id. at pp. 114-17, 141.
Waite has not been able to return to his previous job as a
baggage handler. He began looking for "light duty work" upon his
doctor's authorization, and found a job as a security guard at a
Rite-Aid store in September 1997. Id. at pp. 135-38. He
received workers' compensation benefits from AMR for treatment of
his injuries.*fn1 See id. at p. 132.
This Court has jurisdiction over this action pursuant to
28 U.S.C. § 1332. Plaintiff is a citizen of New York and defendant
is a Delaware corporation with its principal place of business in
Texas. Plaintiff seeks $1,000,000 in damages.
IV. Legal Standard for Summary Judgment
A motion for summary judgment may be granted only if "the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The
movant has the burden of identifying evidence that demonstrates
the absence of a genuine issue of material fact. See Celotex
Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986); Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.
1997). Once this burden has been met, the non-moving party must
come forward with evidence that is more than "mere speculation
and conjecture," Western World Insurance Co. v. Stack Oil,
Inc., 922 F.2d 118, 121 (2d Cir. 1990), but "would be sufficient
to support a jury verdict in its favor." Goenaga v. March of
Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995).
In determining whether summary judgment should be granted, the
court resolves all ambiguities and draws all reasonable
inferences against the moving party. See D'Amico v. City of New
York, 132 F.3d 145, 148 (2d Cir. 1998). The moving party,
however, is not required to affirmatively disprove unsupported
assertions made by the non-movant, see Celotex, 477 U.S. at
323, 106 S.Ct. 2548, and if the evidence presented by the
non-movant is "merely colorable, or is not significantly
probative, summary judgment may be granted." Scotto v. Almenas,
143 F.3d 105 (2d Cir. 1998) (quoting Anderson, 477 U.S. at
249-250, 106 S.Ct. 2505). The court must also examine "the
substantive law applicable to
the underlying litigation since that law dictates which facts are
material." Consarc Corp. v. Marine Midland Bank, N.A.,
996 F.2d 568, 572 (2d Cir. 1993) (citing Anderson, 477 U.S. at 248, 106
There are four bases on which recovery is possible from the
employer of an independent contractor. These are where: (1) the
employer assumes a specific duty under the contract with the
independent contractor that the employer breached; (2) the
employer had a common law or statutory duty to maintain a safe
premises; (3) the employer had a common law or statutory duty to
control or perform the work; and (4) the employer is vicariously
liable for negligence of an independent contractor where the work
contracted for is inherently dangerous. See Rosenberg v.
Equitable Life Assurance Society of the United States, 79 N.Y.2d 663,
584 N.Y.S.2d 765, 767, 595 N.E.2d 840 (1992). Waite fails to
make out a prima facie case under any of these theories.
A. American Did Not Assume a Specific Duty to Train AMR
Waite claims that American had a responsibility to require AMR
employees to be trained to stop the conveyor belt when adjusting
baggage. American's failure to train or to require specific
training for AMR employees, Waite contends, created a "dangerous
condition" that violated American's common law duty to maintain a
safe premises. This argument fails because American had no duty
to train AMR employees in the proper method of handling baggage
under its contract with AMR.