The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge
Plaintiff Alberto Gabriel Hernandez brings this diversity action against GPSDC (New York), Inc.; Old Navy, Inc.; The Gap, Inc. (collectively, "the GAP"); Advanced Handling Systems, Inc. ("Advanced Handling"); Pacific Westeel Racking, Inc. ("Pacific"); and Falcon Steel Co. ("Falcon"). Hernandez alleges that the defendants' negligence and their violations of New York's Labor Law caused him to fall at a construction site and sustain serious injuries. Hernandez moves for summary judgment against defendants, pursuant to Fed. R. Civ. P. 56, on the issue of liability. Advanced Handling and Pacific cross-move for summary judgment dismissing all of Hernandez's claims. Pacific also moves for partial summary judgment dismissing Hernandez's claim for lost wages and medical expenses (except to the extent that such expenses may be incurred by Hernandez in his home country). Finally, the GAP cross-moves for summary judgment dismissing Hernandez's complaint and moves to dismiss all cross claims. As set forth below, the motions are granted in part and denied in part.
The following facts are undisputed unless otherwise stated. In May 2002, the GAP was upgrading a pick module at a distribution facility it owned at 110 Merritt Boulevard, in Fishkill, New York. See Rule 56.1 Statement, filed June 21, 2005 (Docket #34) ("Pl. 56.1(a)"), ¶¶ 1-2; Local Rule 56.1 Statement of Undisputed Facts, filed July 21, 2005 (Docket #39), refiled Aug. 26, 2005 (Docket #61) ("Advanced Handling 56.1(a)"), ¶ 2; Rule 51.6 [sic] Statement to Pacific Westeel Racking, Inc.'s Cross-Motion for Summary Judgment, filed July 28, 2005 (Docket #48) ("Pacific 56.1(a)"), ¶ 1. A pick module is a storage unit for boxes of clothing. See Lancaster Deposition, dated Jan. 27, 2005 ("Lancaster Dep.") (reproduced as Ex. D to Notice of Cross Motion, filed Aug. 16, 2005 (Docket #54) ("GAP Motion")), at 8. The GAP hired Advanced Handling "to coordinate the various trades" involved in the construction and installation of the pick module. Advanced Handling 56.1(a) ¶ 9; see also Defendant the GAP's Local Rule 56.1 Statement of Material Facts in Support of the GAP's Cross-Motion for Summary Judgment and Opposition to the Plaintiff's Motion for Summary Judgment ("GAP 56.1(a)") (annexed to GAP Motion), ¶ 1 (adopting the Rule 56.1 statements of Pacific and Advanced Handling).
Thereafter, Advanced Handling subcontracted the job to Pacific, which is in the business of manufacturing the "steel pallet racking frames" that are necessary to build a pick module. Pl. 56.1 ¶¶ 12-13. Pacific in turn retained Falcon to provide labor and supervision for the assembly and installation of the pick module in the GAP's warehouse. Pacific 56.1(a) ¶ 5. Falcon signed the contract for the job, and subcontracted the labor to Coast-to-Coast ("Coast"), which provided all of the laborers for the job, including Hernandez. See Pl. 56.1(a) ¶ 21; Advanced Handling 56.1(a) ¶¶ 17-19. Prior to his accident, Hernandez was employed by Coast for one year at various sites throughout the United States. Pacific 56.1(a) ¶ 9. Hernandez "'is an illegal alien who possesses no documentation permitting him to work or live in the United States' and 'no application for legalization has ever been filed' by him." Local Rule 56.1 Statement, filed July 28, 2005 (Docket #43) ("Pacific 56.1(a) II") (quoting Letter from James K. Greenberg to Counelors [sic], dated Mar. 23, 2005 (reproduced as Ex. 5 to Declaration on Liability, filed July 28, 2005 (Docket #51) ("O'Bryan Liability Decl.")).
Robert Lancaster was "project engineer" for Advanced Handling Systems in May 2002 when the incident took place. Pl. 56.1(a) ¶ 6. As project engineer, Lancaster scheduled, coordinated and oversaw the installation of the pick module. See id. ¶ 7. Lancaster would check on progress at the Fishkill site at approximately two-week intervals for one or two days. Id. ¶ 10. He "was the only person at the job site from Advanced Handling." Advanced Handling 56.1(a) ¶ 10; accord Pl. 56.1(a) ¶ 9. Pacific had no employees working at the Fishkill site regularly, but a Pacific employee --either Kevin O'Neill or Vince Cirillo -- would drive to the site every two or three weeks to check the status of the project, find out if there were any beams needed, inspect the project, have a look at the "anchoring," and "make sure they [were] keeping up to the installation." See O'Neill Deposition, dated Jan. 27, 2005 ("O'Neill Dep.") (reproduced as Ex. E to GAP Motion), at 8, 12; Pl. 56.1(a) ¶ 16; Pacific 56.1(a) ¶ 11. Pacific provided the material for the job, Pacific 56.1(a) ¶ 4, and Eric Maas, a Coast employee, was assigned as the supervisor in charge of the entire job crew at the site, Pl. 56.1(a) ¶¶ 22-23. Maas reported to O'Neill or Cirillo. See id. ¶ 24 (citing Lancaster Dep. at 137).*fn1
The GAP employed Tony Alongi as the Campus Safety Manager in charge of managing workers' compensation, hazard abatement, and providing health and safety training. See Defendant GAP's Local Rule 56.1 Statement of Disputed Material Facts ("GAP 56.1(b)") (annexed to GAP Motion), ¶ 34; Pl. 56.1(a) ¶ 34. Alongi supplied the contractors with "guidelines to safety rules" ("GAP guidelines") for ongoing work at the site, and each contractor signed an acknowledgment of receipt of the GAP guidelines. Pl. 56.1(a) ¶¶ 25-26. The GAP also required that the contractors working at the site comply with the Occupational Safety and Health Administration's ("OSHA") regulations. See Materials Handling Equipment Agreement ("GAP-Advanced Contract") (reproduced as Ex. 1 to O'Bryan Liability Decl.), ¶ 29; see generally 29 U.S.C. § 655 (granting the Secretary of OSHA the power to promulgate regulations under the Occupational Safety and Health Act ("OSH Act")).*fn2
According to Coast's President, Michael Kares, Coast supervisors were "OSHA certified." Kares Deposition, dated Jan. 31, 2005 ("Kares Dep.") (reproduced as Ex. G to GAP Motion), at 18. OSHA rules require employers to provide a "personal fall arrest system" that is "rigged such that an employee can neither free fall more than 6 feet . . . , nor contact any lower level." 29 C.F.R. §§ 1926.502(a)(2), (d)(16)(iii). "Personal fall arrest system means a system used to arrest an employee in a fall from a working level. It consists of an anchorage, connectors, . . . or body harness and may include a lanyard, . . . lifeline, or suitable combinations of these." 29 C.F.R. § 1926.500(b). "Lanyard means a flexible line of rope, wire rope, or strap which generally has a connector at each end for connecting the . . . body harness to a . . . lifeline . . . or anchorage." Id. "Lifeline means a component consisting of a flexible line for connection to an anchorage at one end to hang vertically (vertical lifeline), or for connection to anchorages at both ends to stretch horizontally (horizontal lifeline), and which serves as a means for connecting other components of a personal fall arrest system to the anchorage." Id. "Anchorage means a secure point of attachment for lifelines [or] lanyards . . ." Id. Coast's general practice was to supply to its workers single lanyards with one hook on each end so that they were always "100 percent . . . tied-off" either to a rope (i.e., a lifeline) or a steel beam. See Kares Dep. at 18-19, 21-22.
The system in use at the Fishkill construction site included a single lanyard that hooked onto a body harness and an anchor. See Pl. 56.1(a) ¶ 92; Pacific Westeel Racking, Inc. Response to Rule 51.6 [sic] Statement, filed July 28, 2005 (Docket #46) ("Pacific 56.1(b)"), ¶ 92; Advanced Handling Systems' Response to Rule 56.1 Statement of Plaintiff, filed Sept. 16, 2005 (Docket #67) ("Advanced Handling 56.1(b)"), ¶ 92. However, according to O'Neill, "normally, there is a double lanyard system in place," and he thought the OSHA guidelines required two lanyards. O'Neill Dep. at 40. Lancaster testified "there are some GAP facilities that require [a] two" lanyard system, but for this site there was "only one" because "they adopted the OSHA regulation which" he believed required only one. Lancaster Dep. at 106, 118. Kares testified that he did not know if OSHA requires dual lanyards, and he thought it "depends who you talk to." Kares Dep. at 22-23.
On May 14, 2002, Hernandez was working on the pick module at the construction site. Pl. 56.1(a) ¶ 62. At a height of approximately 32 feet, Hernandez remembers that he was laying down the pick module's flooring, which consisted of metal decking and wood boards. See Hernandez Deposition, dated Oct. 5, 2004 ("Hernandez Dep.") (reproduced as Ex. B to GAP Motion), at 44-47. The metal decking was corrugated and separated into approximately 20-foot pieces. The decking got "tech-screwed" into the beams through pre-drilled screw holes that held it in place, and the metal pieces overlapped by about six inches. See Lancaster Dep. at 119-22; Pl. 56.1(a) ¶ 64. The screws would go in approximately one in every four feet, where vertical beams were located. Lancaster Dep. at 122; Pl. 56.1(a) ¶ 65. Then, the wood boards were to be placed on top of the corrugated metal, and the top side of the wood had a "sheet of plastic" that became the floor once the wood was laid down. Hernandez Dep. at 46-47. Before he fell, Hernandez remembers that he was installing the laminated wood pieces on top of the corrugated metal sub-floor. Hernandez Dep. at 44-47. Lancaster, however, testified that Hernandez was laying down the corrugated metal. Lancaster Dep. at 88, 119, 123.*fn3
While Hernandez was working on the flooring, he was wearing a harness and a lanyard provided to him for safety. See Advanced Systems 56.1(a) ¶¶ 24-25. The lanyard's hook on one of its ends attached to his harness; the other end was designed to hook onto an anchor (the horizontal steel frame rods, which were part of the pick module). Id. ¶ 26. The site also had vertical beams, which were steel uprights on the horizontal frames running vertically at intervals of approximately one every four feet. Pl. 56.1(a) ¶ 80; Pacific 56.1(b) ¶ 80; Advanced Handling 56.1(b) ¶ 80. Because of the vertical steel uprights, a worker would have to unhook and rehook the lanyard to the horizontal rods while moving every four feet. See Pl. 56.1(a) ¶ 81; Pacific 56.1(b) ¶ 81.
When Hernandez needed to move from location to location, he would unhook the line from the structure and then move with himself unhooked. Advanced Handling 56.1(a) ¶ 27; Pl. 56.1(b) Advanced Handling ¶ 27. At the time of the incident, Hernandez testified that he was in the process of moving to a new location. Hernandez Dep. 56-57. Hernandez cannot remember the moments before he fell or the exact location of his fall. The last thing Hernandez remembers before falling is that he was walking to another location while working. See Hernandez Dep. at 56-59. Hernandez now asserts that, while moving to the new location, he fell through holes in each of the first three levels of the pick module where a stairway was eventually supposed to be installed -- apparently based on Lancaster and O'Neill's testimony that the stairway opening was the only hole directly above where Hernandez lay on the ground after the fall. See Pl. 56.1(a) ¶¶ 66-67, 84; Lancaster Dep. at 87-88, 139-141. Lancaster heard the accident when it happened, but neither he nor O'Neill actually saw it. Advanced Handling 56.1(a) ¶ 30; Lancaster Dep. 63-65; O'Neill Dep. at 35.
Kares, Coast's President, testified that if there is a stairwell opening and a worker is laying down decking near that opening, he would normally put a rope barrier or caution tape around the opening. Kares Dep. at 37-38. None of the defendants contend that a barrier was installed on the day Hernandez was injured. See, e.g., Memorandum of Law in Support of Pacific Westeel Structures, Inc. Reply Memorandum of Law in Support of Motion for Summary Judgment on Damages ("Pacific Reply Liability Mem."), dated Aug. 18, 2005, at 9-11.*fn4
There is conflicting evidence as to whether Hernandez was using his lanyard properly. Although Hernandez does not recall how he fell to the ground, he does recall that he was using his lanyard by hooking and unhooking to move past the vertical beams and that before he fell, he had removed the lanyard from the "metal bar" -- presumably the horizontal beam -- in order to move to a different location. See Hernandez Dep. at 52-59. O'Neill was working at the construction site on the day of the incident, and he saw Hernandez on the ground after the fall. O'Neill Dep. 39-40. O'Neill remembers seeing that Hernandez was still wearing his harness and it had to be cut off of him. Id. at 50. Furthermore, O'Neill remembers seeing a single lanyard attached to Hernandez's harness when the harness was cut off of him while he was on the ground. Id. at 39-40.*fn5 However, according to Lancaster, Hernandez's lanyard was not secured to his harness after the fall, but rather he saw it secured to the steel framework of the tower's third tier with the unattached end hanging in the air. Lancaster Dep. at 71, 83, 138-39. Lancaster inspected Hernandez's lanyard after the accident, and concluded it could not have been hooked to Hernandez and the tower when he fell because the lanyard was not stretched in any way. Advanced Handling 56.1(a) ¶ 32; Pl. 56.1(b) Advanced Handling ¶ 32. O'Neill also concluded the lanyard was "unstretched and unbent," and that the harness was "not faulty" and was attached to Hernandez. O'Neill Dep. at 53; Advanced Handling 56.1(a) ¶¶ 40-41; Pl. 56.1(b) Advanced Handling ¶¶ 40-41.
Alongi heard about the accident on his two-way radio when he was en route to work.
Advanced Handling 56.1(a) ¶ 34; Pl. 56.1(a) ¶ 70. GAP already had a loss prevention unit stationed on site. Advanced Handling 56.1(a) ¶ 4. When Alongi arrived, William Gonda, a certified EMT, was holding Hernandez's neck and a loss prevention officer was present. Pl. 56.1(a) ¶ 70. Thereafter, Alongi conducted an investigation by taking photographs of the site and the lanyard, and interviewing five to ten people. Id. ¶ 71. Based on the lack of scoring on the D-ring of the harness, which is the hook on the harness end of the lanyard, Alongi's investigation indicated that Hernandez did not have the lanyard attached to his harness at the time of the accident. Advanced Handling 56.1(a) ¶ 36; see Alongi Dep. at 50-52. Furthermore, Alongi testified that the "tie off" -- presumably referring to the lanyard -- was found on the fourth tier of the pick module. Advanced Handling 56.1(a) ¶ 37 (citing Alongi Dep. at 57); Pl. 56.1(b) Advanced Handling ¶ 37. However, Lancaster, O'Neill, and Hernandez assert that Hernandez was working on the third tier at the time of the accident. See Lancaster Dep. at 119; Pl. 56.1(a) ¶ 62; O'Neill Dep. at 33. The third tier is the fourth floor counting upwards from and including the ground floor. See O'Neill Dep. at 34.
On January 8, 2004, Hernandez filed his complaint against defendants, and then amended it on April 22, 2004. See Complaint, filed January 8, 2004 (Docket #1); Amended Complaint, filed Apr. 22, 2004 (Docket #7). Hernandez sets forth four causes of action in his amended complaint: (1) defendants "were negligent, reckless and careless in that they violated their duty to" Hernandez; (2) by reason of their negligence, defendants "violated Section 200 of the Labor Law of the State of New York, and the Rules and Regulations enacted pursuant thereto," (3) by reason of their negligence, "defendants violated Section 240 of the Labor Law of the State of New York"; and (4) "defendants violated section 241(6) of the Labor Law of the State of New York, and the Rules and Regulations enacted pursuant thereto, including various sections of The New York Code of Rules and Regulations." Amended Complaint ¶¶ 46, 52, 56, 60.
On June 21, 2005, Hernandez moved for summary judgment on the issue of liability and filed papers in support of his motion. See Notice of Motion, filed June 21, 2005 (Docket #32) ("Pl. Motion"); Pl. 56.1(a); Affirmation of James K. Greenberg ("Greenberg Aff.") (annexed to Pl. Motion); Memorandum of Law, filed June 21, 2005 (Docket #33) ("Pl. Mem."); Affidavit of Joseph Cannizzo (annexed to Pl. Motion). However, the papers address only his third cause of action and certain New York Industrial Code Regulations, see Pl. Mem. at 4-5, thus indicating he seeks summary judgment solely on the issue of liability under Labor Law §§ 240 and 241(6).
3. Advanced Handling's Motion
Advanced Handling cross-moved for summary judgment "dismissing all causes of action." Notice of Motion, filed July 21, 2005 (Docket #39), refiled Aug. 26, 2005 (Docket #56) ("Advanced Handling Motion"). Advanced Handling filed supporting papers as well. See Advanced Handling 56.1(a); Affirmation in Support ("Yagerman Aff. in Supp.") (annexed to Advanced Handling Motion); Memorandum of Law ("Advanced Handling Mem.") (annexed to Advanced Handling Motion). Advanced Handling also filed an affirmation by Yagerman in opposition to Hernandez's motion. Affirmation in Opposition, filed July 21, 2005 (Docket #38), refiled Aug. 26, 2005 (Docket #58). On September 16, 2005, Advanced Handling filed a Rule 56.1(b) statement in response to Hernandez's Rule 56.1(a) statement. Advanced Handling 56.1(b).
Pacific made a cross-motion for summary judgment dismissing Hernandez's claims under Labor Law §§ 200, 240, and 241(6), as well as his claims under common law negligence, and filed supporting papers for its motion. Notice of Cross-Motion, filed July 28, 2005 (Docket #47) ("Pacific Motion I"); see Pacific 56.1(a); Memorandum of Law in Support of Pacific Westeel Racking Inc.'s Cross-Motion for Summary Judgment, filed July 28, 2005 (Docket #49) ("Pacific Liability Mem."); O'Bryan Liability Decl.
Pacific also filed a second motion, this time for partial summary judgment, dismissing in part Hernandez's lost wages and future medical expenses claim. Notice of Motion, filed July 28, 2005 (Docket #42) ("Pacific Motion II"). Pacific filed supporting papers for this motion as well.
See Declaration of Charles O'Bryan, filed July 28, 2005 (Docket #44) ("O'Bryan Damages Decl."); Memorandum of Law in Support of Motion for Partial Summary Judgment Related to Plaintiff's Claims for Loss of Wages and Future Medical Expenses, filed July 28, 2005 (Docket #50) ("Pacific Damages Mem."); Pacific 56.1(a) II. Additionally, Pacific filed a Rule 56.1(b) statement and a memorandum of law in response to Hernandez's 56.1(a) statement. See Pacific 56.1(b); Pacific Westeel Structures, Inc. Memorandum of Law in Opposition to Plaintiffs Motion for Summary Judgment, filed July 28, 2005 (Docket #45) ("Pacific Opp. Mem.").
5. The GAP's Motion and Other Submissions by the Parties
On August 4, 2005, Hernandez's attorney, James Greenberg, submitted an affirmation along with a reply memorandum in response to Advanced Handling and Pacific's motions. See Affirmation in Opposition to the Defendants' Cross-Motions and In Further Support of the Motion, filed Aug. 4, 2005 (Docket #52) ("Pl. Opp. Aff.");*fn6 Reply Memorandum and Memorandum of Law in Opposition to the Cross-Motions of Defendants Pacific Westeel and Advanced Handling, filed Aug. 4, 2005 (Docket #53) ("Pl. Opp. Mem."). In those papers, Hernandez included an argument that the GAP's failure to oppose his motion meant the motion must be granted as to the GAP. Pl. Opp. Aff. at 1. On August 16, 2005, the GAP filed a cross-motion seeking summary judgment dismissing Hernandez's complaint, dismissing all cross-motions, and denying Hernandez's motion. See GAP Motion; Declaration in Support of Defendants' Cross-Motion for Summary Judgment and In Opposition to the Plaintiff's Motion for Summary Judgment ("Walthall Decl.") (annexed to GAP Motion); Memorandum of Law in Support of Cross-Motion for Summary Judgment ("GAP Mem.") (annexed to GAP Motion); GAP 56.1(a); GAP 56.1(b).*fn7
On August 18, 2005, Advanced Handling filed its reply to Hernandez's opposition papers. See Reply Affirmation to Plaintiff's Opposition and in Further Support of Defendant Advanced Handling System's Inc. [sic] Summary Judgment Motion, filed Aug. 18, 2005 (Docket #55), refiled on Aug. 26, 2005 (Docket #59) ("Yagerman Reply Aff."); Memorandum of Law in Support of Reply Affirmation, filed Aug. 18, 2005 (Docket #55), refiled on Aug. 26, 2005 (Docket #60) ("Advanced Handling Reply Mem.").
Pacific also submitted reply papers. See Pacific Reply Liability Mem.; Pacific Reply Damages Mem. In its reply, Pacific included a declaration of Charles O'Bryan, see Declaration of Charles E. O'Bryan, dated Aug. 18, 2005, which attached a supplemental affidavit by its expert, Leo Debobes, see Supplemental Affidavit of Leo J. Debobes, dated Aug. 15, 2005. Advanced Handling subsequently filed a declaration by Mark Yagerman on August 26, 2005, adopting and attaching Debobes' affidavit. Declaration, filed Aug. 26, 2005 (Docket #62) ("Yagerman Decl."). In response, on September 14, 2005, Hernandez filed a sur-reply and attached a supplemental affidavit of his expert. See Sur-Reply Memorandum,filed Sept. 14, 2005 (Docket #66) ("Pl. Sur-Reply Mem."); Sur-Reply Affirmation, filed Sept. 14, 2005 (Docket #65) ("Greenberg Sur-Reply Aff."); Supplemental Affidavit of Joseph C. Cannizzo (annexed to Greenberg Sur-Reply Aff.) ("Cannizzo Supp. Aff.").
A. Standard of Review on Summary Judgment Motions
Rule 56(c) of the Federal Rules of Civil Procedure states that summary judgment is appropriate when "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." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). A genuine issue of material fact exists "if the evidence is ...