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July 28, 2004.


The opinion of the court was delivered by: JOHN T. ELFVIN, Senior District Judge


Plaintiffs commenced this personal injury action September 20, 2002 against defendants in New York State Supreme Court for the County of Niagara. Defendants subsequently removed such to this Court on January 14, 2003 and now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCvP). For the reasons set forth below, defendants' motion will be granted.

The following facts are undisputed unless otherwise noted. On October 12, 1999 plaintiff Elaine Winegarden allegedly fell while she attempted to cross a section of railroad tracks ("the Sidetrack")*fn2 during her work-shift at American Axle & Manufacturing, Inc. ("American Axle"). The Sidetrack is located in the South Yard of American Axle's property located at 1001 East Delavan Ave. in Buffalo, N.Y., and extends from the Marshalling Building in a southerly direction. The Sidetrack connects with another set of tracks known as the Erie Running Track. The Erie Running Track is located on property that is adjacent to the east side of the South Yard and is owned and operated by one or more of the defendants. The properties are separated by a fence and a gate.

  Although none of the defendants owns the property where the Sidetrack is located, plaintiffs allege that the defendants were negligent in their ownership, maintenance, operation, management and control of such tracks. Compl. ¶ 17. Plaintiffs contend that the defendants exercised such control over the Sidetrack pursuant to a Sidetrack Agreement ("the Agreement") that had been entered into by the defendants' predecessors and American Axle's predecessor. The original parties to the Agreement were General Motors Corporation ("GMC") and Erie Railroad Company ("Erie"). See Pls.' Mem. of Law, Ex. A (Agreement). Pursuant to the Agreement, Erie was granted a right of way, or a license, allowing it to enter onto GMC's property to construct and operate the Sidetrack.*fn3 Id. at 3-4. However, the Agreement also states that GMC "shall, at its own expense, maintain, repair and renew to the satisfaction of the Superintendent of the Railroad Company, the sidetrack" and shall be responsible for the "removal of ice and snow." Id. at 4. With regard to liability, excluding certain acts related to fire and clearance obstructions and hopper coverage,*fn4 the Agreement provides that each party "shall be solely liable for all loss, damage or liability to persons and property arising from its own sole acts or omissions, including negligence, and shall indemnify and hold harmless the other party to this agreement for such loss." Id. at 7. The Agreement further provides that, if liability arises from joint or concurring acts or omissions, including negligence of both parties, the liability "shall be borne by them equally." Ibid. Regarding assignment and possible successors, the Agreement states:
"Neither party may assign or transfer any of the rights or privileges hereto without consent of the other. The rights, duties, and obligations of the respective parties hereto under this Agreement shall carry to and be binding upon their heirs, executors, administrators, lessees, successors, and assigns respectively." Id. at 8.
American Axle acquired GMC's property and the Sidetrack in 1994. Each defendant is purportedly linked to Erie through a series of real estate and business transactions. In 1976 Erie's properties were transferred to Consolidated Rail Corporation ("Consolidated") pursuant to the Regional Railroad Reorganization Act of 1973. See T.O.F.C., Inc. v. United States, 683 F.2d 389, 390 (Cl.Ct. 1982). Consolidated, a wholly-owned subsidiary of Conrail, Inc. ("Conrail"), subsequently transferred its property rights and interests in the Erie Running Track to New York Central Lines, LLC ("Central Lines"). Central Lines then made an agreement with CSX Transportation, Inc. ("CSXT") allowing it to operate its trains on Erie Running Track. In addition, CSXT and Norfolk Southern Railway Company, a nonparty, acquired certain Consolidated assets. Norfolk Southern Railway Company is a wholly owned subsidiary of defendant, Norfolk Southern Corporation ("Norfolk"), which also has equity in Conrail and Consolidated. CSXT is a wholly-owned subsidiary of CSX Corporation ("CSX"). Norfolk, CSX, and Conrail are all holding companies, which neither operate railroads nor own railroad property.

  FRCvP 56(c) states that summary judgment "shall be rendered forthwith 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 a judgment as a matter of law." A genuine issue of fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether summary judgment is appropriate, this Court must draw all factual inferences in favor of the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).

  Nevertheless, the non-moving party must rebut the motion for summary judgment with more than conclusory allegations and general denials. FRCvP 56(e); see also Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) ("conclusory allegations, conjecture and speculation * * * are insufficient to create a genuine issue of fact"). Furthermore, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

  Plaintiffs assert that the defendants owed plaintiff Elaine M. Winegarden a duty of care because they had been granted a right of way to enter onto the Sidetrack to perform maintenance and repairs pursuant to the Agreement. Plaintiffs contend that defendants breached such a duty by negligently maintaining and repairing the Sidetrack. In addition, plaintiffs contend that defendants breached their duty of care as abutting landowners.

  In support of their summary judgment motion, defendants first argue that plaintiffs cannot establish a prima facie case of premises liability because they cannot show that any of the defendants owned, operated, maintained, managed or controlled the Sidetrack.*fn5 Secondly, defendants assert that none of them received any property interests or rights as successors to the Agreement. Third, defendants contend that, assuming arguendo that the Agreement was binding between American Axle and the defendants, the Agreement explicitly assigned the duty to maintain and repair the Sidetrack to American Axle. Fourth, defendants assert that such a contractual agreement did not provide a basis for tort liability against the defendants. Finally, defendants contest plaintiffs' allegations that they owed plaintiff Elaine M. Winegarden a duty of care as abutting landowners. The Court will grant summary judgment to the defendants because (1) assuming arguendo that the Agreement was binding on Consolidated and the other defendants, as successors-in-interest or otherwise,*fn6 the Agreement did not confer a duty upon the defendants to maintain the Sidetrack and (2) plaintiffs have failed to raise a triable issue of fact regarding defendants' negligence.

  It is well established under New York law that, before a defendant can be found liable for negligence, it must be determined that such defendant owed, and breached, a duty of care to the plaintiff. Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136, 138 (2002); Badou v. N.J. Transit Rail Operations, 633 N.Y.S.2d 530, 532 (2d Dep't 1995). The existence and scope of a duty is a question of law. Espinal, at 138. As the owner of the property at issue in this case, American Axle owed a duty to "exercise reasonable care under the circumstances" to prevent injury to persons on its property. Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 329 (1981). Plaintiffs' contention that the defendants also owed a duty of care to them because of the right of way that was granted to them under the Agreement is unavailing because (1) the Agreement explicitly placed the duty to maintain the Sidetrack on American Axle and (2) defendants' contractual obligations under the Agreement cannot provide the basis for their tort liability. The Agreement pertinently provides that "[t]he Industry [GM or American Axle] shall, at its own expense maintain, repair and renew * * * the sidetrack." Thus, as expressly provided by the Agreement, the duty to maintain and repair the sidetrack belonged to GMC and, subsequently, American Axle.*fn7 Further, absent three circumstances, "a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party." Espinal, at 138. The three circumstances in which a party to a contract who agrees to render services may have assumed a duty of care — and thus be potentially liable in tort — to third persons are: "(1) where the contracting party, in failing to exercise reasonable care in performance of his duties, `launches a force or instrument of harm', (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely." Id. at 140 (citations omitted). There is simply no evidence in the record that any of these circumstances are present here. Plaintiffs' theory of liability is simply circular and conjectural. In essence, plaintiffs argue that one or more of the defendants must have acted negligently because they utilized the Sidetrack, pursuant to their right of way, in moving their railroad cars but failed to use reasonable care in maintaining and repairing the Sidetrack. However, without a duty to maintain the property, defendants cannot be found liable for negligence. Plaintiffs have offered no credible evidence showing that any of the defendants owed a duty of care to maintain the Sidetrack.

  Moreover, the conjectural nature of plaintiffs' evidence regarding defendants' alleged breach mandates a finding of summary judgment for defendants with regard to plaintiffs' claim that is premised on the alleged negligence of defendants as abutting landowners. "[A]n owner or occupier of abutting property owes no duty to warn or protect others from a defective or dangerous condition on neighboring property unless the owner of the abutting property causes or contributes to that condition." Badou, at 531. Plaintiffs have not offered credible evidence that any defendant actually caused or contributed to the allegedly defective area around the Sidetrack. At most, plaintiff contends that defendants "presumably caused the defect through their 23 years of use without repair." Pls.' Mem. of Law, at 4. Such conjectural evidence is inadequate to raise a triable issue of fact that defendants caused or contributed to the alleged defective condition at issue. See Gipson v. Veley, 596 N.Y.S.2d 548, 548 (3rd Dep't 1993) (granting summary judgment to defendants because there was no evidence showing that they actually created or contributed to the dangerous condition that caused plaintiff's accident); see also Kerzer, at 400 ("conclusory allegations, conjecture and speculation * * * are insufficient to create a genuine issue of fact").*fn8 In sum, summary judgment must be granted to these defendants because it is undisputed that they owed no duty of care to plaintiffs and therefore, defendants are entitled to judgment as a matter of law.*fn9

  Accordingly, it is hereby ORDERED that defendants' motion for summary judgment is granted and that the Clerk of ...

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