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." ...