The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff Kenneth Wood ("Wood") brings this action for negligence against defendants Mustang Express Trucking, Inc., ("Mustang"), "K" Line America, Inc., ("K-Line"), Kawasaki Kisen Kaisha, Ltd.,("Kawasaki"), G.M. Services, Inc., ("GM"), Luiz Chavez, ("Chavez"), and Julio Cuellar, ("Cuellar"). Plaintiffs contend that each defendant is liable for the injuries Wood allegedly sustained in a work-related accident in which the forklift he was operating fell into a gap between a loading dock and the truck Wood was loading.
Defendant Julio Cuellar was never served in this action, and therefore has not appeared. Defendants Chavez and GM failed to appear, and by Order dated November 3, 2004, a default judgment was issued against them. By Order dated March 21, 2006, this court granted Kawasaki's motion to dismiss for plaintiff's failure to effectuate proper service on Kawasaki. Accordingly, the only defendants remaining for adjudication on the merits are defendants K-Line and Mustang.
Defendants K-Line and Mustang now move pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment in their favor on grounds that they were not negligent and that they may not be held vicariously liable for the accident under any agency or vicarious liability theory. Defendants further contend that plaintiff has failed to establish that any of the defendants were negligent. Plaintiff opposes defendants' motion on grounds that there are numerous questions of fact in dispute as to whether or not K-line and/or Mustang may be held responsible for the acts of G.M. and/or Chavez, and whether or not any of the defendants were negligent.
For the reasons set forth below, I deny defendants' motion for summary judgment.
On March 26, 1998, plaintiff Kenneth Wood was employed by Toshiba Display Devices as a forklift operator at the Toshiba plant in Horseheads, New York. During the course of loading Toshiba Displays onto a tractor-trailer truck (which required Wood to drive his forklift onto the truck) the truck allegedly moved forward, creating a gap between the truck and the loading dock. As Wood drove the forklift back onto the loading dock, his forklift fell into the gap, resulting in Wood, who was still in the forklift, falling some distance, and allegedly injuring his back.
I. Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure provides 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 judgment as a matter of law." When considering a motion for summary judgment, all inferences and ambiguities must be resolved in favor of the party against whom summary judgment is sought. R.B. Ventures, Ltd. v. Shane, 112 F.3d 54 (2nd Cir. 1997). If, after considering the evidence in the light most favorable to the nonmoving party, the court finds that no rational jury could find in favor of that party, a grant of summary judgment is appropriate. Annis v. County of Westchester, 136 F.3d 239, 247 (2nd Cir. 1998).
II. Material Questions of Fact Exist Which Preclude a Grant of Summary Judgment
Mustang and K-Line move for summary judgment against the plaintiffs on grounds that G.M. and Chavez were independent contractors, and accordingly, any negligence on behalf of G.M. and Chavez cannot be imputed to Mustang or K-Line. Mustang and K-Line further contend that because the Complaint does not allege any negligence on the part of Mustang or K-L independently (i.e. outside of any duty owed in relation to G.M. or Chavez), the Complaint fails to state a cause of action against them.
While it is well established that a party engaging the services of an independent contractor generally can not be held liable for the negligent acts of the independent contractor, Tesillo v. Emergency Physician Associates, Inc., 376 F.Supp.2d 327, 330 (W.D.N.Y. 2005)(Larimer, J.), it is equally well established that whether or not a party is an independent contractor is generally a question of fact. Isik Jewelry v. Mars Media, Inc., 418 F.Supp.2d 112, 131 (E.D.N.Y. 2005). Similarly, the question of whether or not an agency relationship exists that is sufficient to bind the principal for the acts of the ...