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United States District Court, Eastern District of New York

January 30, 2003


The opinion of the court was delivered by: I. Leo Glasser, United States District Judge.


This is a wrongful death action commenced by the wife of the decedent Joseph LoCurto, on her own behalf and as administratrix of the estate. LoCurto had been employed by third-party defendant Tully Construction Co., Inc. ("Tully Construction") for six years. Immediately prior to his death, LoCurto was working for Tully Construction on a water main project at McGuinness Boulevard and Calyer Street in Brooklyn, New York. Third-party defendant City of New York had contracted with Tully Construction and defendant Raytheon Engineers & Constructors, Inc. ("Raytheon") for the project. Tully Construction in turn had subcontracted with defendant third-party defendant Moretrench American Corp. ("Moretrench")*fn1 to perform certain duties relating to removing water from the site. On December 2, 1998, while assisting a Moretrench representative, Locurto was struck and killed by a truck driven by defendant Gregory G. Griffaton on behalf of defendant Jevic Transportation, Inc. ("Jevic").

Moretrench now moves for summary judgment as to all claims asserted against it, arguing that as a matter of law it owed no duty to the decedent and that LoCurto's death was caused by an intervening act under his own control — namely, straying into the active traffic lanes. For the reasons stated below. Moretrench's motion is denied.


Since no party submitted a statement of undisputed facts pursuant to Local Civil Rule 56.1, this summary is based primarily on the portions of those depositions to which parties directed this Court's attention by the attorney affidavits and affirmations which do not appear to be disputed.*fn2

The City of New York contracted with Tully Construction to conduct work on the water main pipes below McGuiness Boulevard. A work area was therefore established around the intersection of McGuiness and Calyer. According to the testimony of James Tully, Tully Construction's field superintendent, the work area was protected from the regular flow of traffic by the use of concrete barriers, barrels and pedestrian barricades. (Tully Dep. at 30-31.)

Raytheon was hired by the City of New York to oversee the project's compliance with the City's plans. Moretrench was hired as a subcontractor to "dewater" the site. On December 2, 1998, Moretrench's field superintendent, Ronald Trapp, was present at the site to determine the level of ground water by inserting a well point into the ground. Such a task was a two-person job, but Moretrench sent only Trapp. Trapp thus asked Tully if he could borrow an employee to assist him with the insertion of the well point.*fn3 Tully assigned LoCurto to help Trapp.

Trapp and LoCurto connected lengths of hose to create a 200-foot long hose and attached one end to a fire hydrant and the other end to a three foot long well point screen. The well point itself could then be lowered up to 21 feet below ground level. Trapp laid out the paths of the hoses from the hydrant to the well site. The path of the hoses as laid out originally was wholly within the work area separated from the vehicular traffic.

When Trapp and LoCurto were about halfway done with the job, an inspector from Raytheon named Paul Plunkett approached Trapp to discuss Moretrench's progress and plans for the well point insertion. Trapp subsequently directed LoCurto to roll up the hose and began speaking with Plunkett. Both Trapp and Plunkett had their backs turned to LoCurto while he rolled up the hose. As Trapp and Plunkett were talking, they heard a scream and turned to see that LoCurto lying in the road injured, apparently hit by a truck. Trapp noticed then that the path of the hose was different from the path originally laid down by him and LoCurto earlier that morning, and now lay in part outside the protected work area and in the path of oncoming traffic. No facts have been presented to explain why the path of the hose had changed.

Moretrench seeks summary judgment on the claims against it, arguing that it owed no duty to LoCurto, and that even if it did owe any duty, LoCurto's apparent decision to change the path of the hose and enter into oncoming traffic was an intervening act that breaks the causal nexus between Moretrench's acts and LoCurto's death.


I. Standard for Summary Judgment

Summary judgment "shall be rendered forthwith if the pleadings, depositions . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A "moving party is entitled to judgment as a matter of law [if] the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985) (internal quotation marks and citations omitted). In deciding a summary judgment motion, a court should not resolve disputed issues of fact; rather, it simply must decide whether there is any genuine issue to be tried. Eastman Mach. Co. v. United States, 841 F.2d 469, 473 (2d Cir. 1988). A disputed fact is material only if it might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine factual issue exists if there is sufficient evidence favoring the nonmovant such that a reasonable jury could return a verdict in her favor. Id., at 248-49. The motion "will not be defeated merely . . . on the basis of conjecture or surmise." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). "In assessing the record to determine whether there is a genuine issue of fact, the court is required to draw all inferences in favor of the party against whom summary judgment is sought." Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989).

II. The Existence of a Duty

An employer owes a duty to its employees to maintain the worksite in a reasonably safe manner. See Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 878, 678 N.E.2d 110, 111, 609 N.Y.S.2d 168, 169 (1993). A party, such as a subcontractor, who exerts no control over the premises has no duty to maintain the premises. Lombardi v. Stout, 80 N.Y.2d 290, 604 N.E.2d 117, 590 N.Y.S.2d 55 (1992). Conversely, when work is delegated to a subcontractor who has the concomitant authority to control that work, the subcontractor assumes the general contractor's duty to an employee to provide a safe workplace. Rice v. City of Cortland, 262 A.D.2d 770, 771-72, 691 N.Y.S.2d 616, 619 (3d Dep't 1999) ("liability against a subcontractor based upon a claimed violation of Labor Law § 200 — which codifies the common-law duty of an owner or general contractor to provide a safe workplace — requires a showing that authority was conferred on the subcontractor to supervise and control the activity which produced the injury").

Moretrench exercised control over the jobsite, at least with respect to the work undertaken by LoCurto under Trapp's supervision at the time of the accident: namely, laying out water hoses and drilling a well point. Although Moretrench argues it is undisputed that LoCurto was not its special employee, the facts in this record favor the opposite conclusion. The subcontracting of the duty to perform dewatering work "involves the delegation of authority to supervise and control that work." Novell v. Carney Electric Corp., 123 Misc.2d 1089, 1094, 476 N.Y.S.2d 241, 246 (Sup.Ct. N.Y. Co. 1984). "[A] special employee is described as one who is transferred for a limited time of whatever duration to the service of another." Thompson v. Grumman Aerospace Corp, 78 N.Y.2d 553, 557, 578 N.Y.S.2d 106, 585 N.E.2d 355 (1991). A person's status as a special employee is generally a question of fact for the jury. unless "undisputed critical facts" compel a finding one way or the other. Id. Although the undisputed facts in the record supporting this motion almost compel a finding that Locurto was in fact Moretrench's special employee that morning. the question need not be answered in the affirmative here since at the very least this creates a material issue of fact as to who was LoCurto's employer at the time in question. It is clear for purposes of this motion that Moretrench supervised LoCurto's work and had a duty to ensure that it was accomplished in a safe manner.

Among its arguments in reply, Moretrench states that this case is comparable to Jaeger v. Costanzi Crane, Inc., 280 A.D.2d 743, 720 N.Y.S.2d 235 (2d Dep't 2001), where a subcontractor operating a crane was directed by the general contractor to lower a beam which injured the plaintiff. In Jaeger, it was undisputed that the subcontractor was taking direction directly from the signal person employed by the general contractor, and therefore did not exercise control over the activities which brought about the injury. Id. at 744-45, 720 N.Y.S.2d at 237. Moretrench argues that similarly it could not have controlled Griffaton's actions in driving the truck that crashed into LoCurto.

This argument, however, draws too fine a line regarding "control" by trying to limit the proximate cause of LoCurto's death solely to Griffaton's driving. Plaintiff seeks to hold Moretrench liable not for causing or directing the truck to crash into LoCurto, but rather for failing to maintain a safe workplace in the course of exercising control over the well point activities. The other parties' cross-claims and third-party claims against Moretrench are premised upon the same theory. And as noted above, Trapp did exercise control over LoCurto, telling him where to lay out the hose and directing him to roll up the hose, which he was doing when Griffaton's truck hit him.

III. The Intervening Act Defense

Moretrench's second argument is that "LoCurto's unexpected, undirected act of laying the hoses in an active traffic lane constituted an intervening act" that breaks the causal nexus required for negligence. (Moretrench Mem. at 5) "[A]n intervening act will constitute a superseding cause and will serve to relieve defendant of liability when the act is of such an extraordinary nature or so attenuates defendant's conduct from the ultimate injury that responsibility for the injury may not be reasonably attributed to the defendant." Mack v. Altmans State Lighting Co., 98 A.D.2d 468, 471, 470 N.Y.S.2d 664, 667 (2d Dep't 1984). In other words, "liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence." Dediarian v. Felix Contracting Corp., 51 N.Y.2d 308, 315, 414 N.E.2d 666, 670, 434 N.Y.S.2d 166, 169 (1980). "Because questions concerning what is foreseeable and what is normal may be the subject of varying influences, as is the question of negligence itself, these issues generally are for the fact finder to resolve." Id.

When an employee takes unexpected actions that are outside the scope of the task before him or her, such an event can constitute an intervening act severing causation. For example. where an employee was warned not to enter any excavation and in fact warned others not to do so, that employee's decision to jump into an excavated hole to retrieve a fallen chain constituted an intervening act relieving the subcontractor who excavated the hole of responsibility. George v. Rebbe Excavating & Equipment Co., Inc., 236 A.D.2d 442, 653 N.Y.S.2d 663 (2d Dep't 1997). Similarly, an employee of a subcontractor at a construction site who decided to jump from a stalled freight elevator suspended six feet above the lobby floor despite the fact that others in the car requested assistance only ten or fifteen minutes earlier took an intervening act that superseded the defendants' liability. Egan v. A.J. Constr. Corp., 94 N.Y.2d 839, 841, 724 N.E.2d 366, 368, 702 N.Y.S.2d 574, 576 (1999).

Moretrench asserts that in the absence of any facts to the contrary, a fortiori LoCurto must have changed the path of the hose to place it into the traffic lanes of his own accord without Trapp's guidance. Moretrench further argues that LoCurto's act, like the jumping employee in George, supra, was so extraordinary as to relieve Moretrench of any liability for LoCurto's death. This argument assumes, however, that it was LoCurto who changed the path of the hose, without any evidence that LoCurto did so. Moretrench seeks the Court to infer that the only possible explanation for the accident is that, for some unknowable reason, LoCurto himself moved the hoses into the path of traffic. This inference is unwarranted. especially given that the court is required to "draw all inferences in favor of the party against whom summary judgment is sought." Ramseur, 865 F.2d at 465. It is just as likely that while Trapp and LoCurto were setting up the well point, the hoses were either jostled by Trapp and Locurto's own efforts to set up the well point or else moved by other persons, and that Moretrench therefore failed to maintain safely the worksite by keeping the hose within the protected area.

The movement of the hose under these circumstances is not so inherently extraordinary that such an act supersedes Moretrench's liability. Instead, "it is a question of fact for the jury to determine whether the intervening act was extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or so far removed from the defendant's conduct that it would constitute a superseding act." Zucker v. Capitelli, 736 F. Supp. 449, 453 (E.D.N.Y. 1990); see Dediarian, 51 N.Y.2d at 315, 414 N.E.2d at 670, 434 N.Y.S.2d at 169 (noting that such questions are usually reserved for the finder of fact).


For the foregoing reasons, Moretrench's motion for summary judgment is denied.


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