The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge
REPORT AND RECOMMENDATION
Defendants STV, Incorporated ("STV"), Hatch Mott MacDonald ("HMM") and a joint venture between them called "STV/HMM" have moved for summary judgment dismissing the claims and cross-claims brought against all three parties by plaintiff Edley Gayle and co-defendants National Railroad Passenger Corporation; Mitchell Equipment Corporation; Transportation Resources, Inc.; Terex Corporation; Koehring Cranes, Inc.; Terex Cranes, Inc.; Atlantic Crane Inspection Services; and Crescent Contracting. These same three defendants have also moved for summary judgment in cases brought by two other plaintiffs: Joseph Adornetti (Docket # 06 Civ. 6195) and Girolamo Vitale (Docket # 06 Civ. 6196).
In each of the three cases, STV and STV/HMM jointly filed a notice of motion and supporting papers, and HMM separately filed its own notice of motion and supporting papers. For purposes of simplicity, we consider the arguments of all three movants together and will sometimes refer to them collectively as STV/HMM. In addition, while the citations in this Report and Recommendation refer exclusively to the filings in the Gayle case (Docket # 06 Civ. 6956), the content applies equally to the claims in all three cases inasmuch as the parties' papers in all three cases are substantively the same.
For the reasons stated below, the motions for summary judgment by all three defendants in each of the three cases should be granted.
Unless otherwise stated, the following facts are not in dispute or are taken in the light most favorable to the parties opposing the motions ("the nonmovants").
1. Events of July 10, 2004
This suit arises from a crane accident that occurred on July 10, 2004. See Amended Civil Action Complaint of Plaintiff Edley Gayle, filed May 10, 2007 (Docket # 39) ("Am. Compl.") ¶ 22; Third Party Defendant Hatch Mott MacDonald's Rule 56.1 Statement of Undisputed Material Facts, filed July 16, 2009 (Docket # 127) ("HMM R. 56.1 Statement") ¶ 1. At the time of the accident, co-defendant National Railroad Passenger Corporation ("Amtrak") had three separate and unrelated construction projects underway along the Number 1 line of the East River Tunnel running between Manhattan and Queens. See HMM R. 56.1 Statement ¶ 1; Deposition of Howard Carter, Jr. (annexed as Ex. A to Declaration of Robert Ely in Support of Defendant Hatch Mott MacDonald's Motion for Summary Judgment, filed July 16, 2009 (Docket # 126) ("Ely Decl.")) ("Carter Dep."), at 40-41. The three projects were, from west to east, (1) the removal and replacement of track ties, (2) the installation of a fire standpipe system (the "Standpipe Project"), and (3) the removal and installation of a breaker (the "Breaker Project").
Carter Dep. at 39-42. The Breaker Project, which did not involve STV/HMM or its personnel, utilized a RT Terex crane owned and operated by Amtrak, and was located approximately 4,062 feet east from the Standpipe Project. See Carter Dep. at 32, 46-47; National Railroad Passenger Corporation Service Contract (Dec. 11, 2001) (annexed as Ex. C.1 to Declaration of Ronald E. Joseph in Support of Defendant National Railroad Passenger Corp.'s Opposition to Defendant STV Inc.'s, Hatch Mott MacDonald's and STV/HMM's Motions for Summary Judgment, filed Oct. 2, 2009 (Docket # 169) ("Joseph Decl.")) ("STV/HMM Service Contract") ¶¶ 11(b), (f).*fn1
Amtrak had contracted with STV/HMM to provide construction management services for the Standpipe Project, which was part of a larger contract under which STV/HMM was providing services for installation of dry fire standpipe systems along the East River Tunnels running from New York Pennsylvania Station to Long Island City. See Statement of Work for Contracted Construction Management Services for Installation of a Dry Fire Standpipe System in Amtrak s [sic] North River Tunnel and East River Tunnel (Oct. 10, 2001) (annexed as Ex. C.2 to Joseph Decl.) ("Work Statement") ¶ 1. Crescent Contracting, Inc. ("Crescent") was the general contractor hired to install the standpipe system. Deposition of Dennis Nazzaro (annexed as Ex. C to Ely Decl.) ("Nazzaro Dep."), at 51; Deposition of Louis Cevasco (annexed as Ex. E to Affidavit in Support, filed July 16, 2009 (Docket ## 123, 124) ("Kalman Decl.")) ("Cevasco Dep."), at 16. The Standpipe Project's workers consisted of STV/HMM staff, including a safety engineer; construction workers employed by Crescent; and Amtrak employees, including "pilots" and/or "force account" personnel who piloted rail trucks to and from the worksite. See Cevasco Dep. at 12-13; Deposition of Girolamo Vitale (annexed as Ex. J to Ely Decl.) ("Vitale Dep."), at 37, 52; Declaration of Howard Carter, Jr. (annexed as Ex. B to Joseph Decl.) ("Carter Decl.") ¶ 4. In July 2004, Gayle was an Amtrak pilot assigned to the Standpipe Project. See Deposition of Edley Gayle (annexed as Ex. B to Ely Decl.) ("Gayle Dep."), at 40-41. In addition to Gayle, Amtrak also assigned Amtrak employees Derek Ezekial and Sam Nesmith to the Standpipe Project. Carter Decl. ¶ 4. Under the contract, the role of Gayle, Ezekial, and Nesmith, as force account personnel, was to supply "track protection." See Work Statement ¶ 1.3.1.
Amtrak monitored movement along the railroad line and briefed Amtrak foremen assigned to the various work sites regarding construction and movement at other locations on the track. See Carter Dep. at 49-52, 67; Gayle Dep. at 59. Pursuant to rules promulgated by the Northeast Operating Rules Advisory Committee, Amtrak Foreman David Zwolinski had taken the track at the Standpipe Project out of service to permit construction work. See Carter Dep. at 50, 152-53. Zwolinski, who oversaw track protection along the full line, was charged with monitoring track movement. See Carter Dep. at 38-39. Amtrak Foreman Bobby Avent was responsible for track protection at the Breaker Project, which was located less than a mile from the Standpipe Project. See id. at 32, 47. It is unclear whether Ezekiel or Gayle, both Amtrak foremen assigned to the Standpipe Project, was the head track protection officer responsible for that site. See Gayle Dep. at 157; Carter Dep. at 55, 66. Nevertheless, both were aware of the Breaker Project. See Gayle Dep. at 55-59. Gayle testified that prior to entering the work site, Ezekiel informed him along with other Amtrak pilots, and "contract truck drivers" of the Breaker Project and that the work crew's equipment included a crane. See Gayle Dep. at 53-61.*fn2 While Gayle was in one of the Crescent rail trucks, see Gayle Dep. at 75, Ezekiel was stationed above the East River Tunnel, but had left his post with fellow Amtrak Foreman Nesmith prior to the accident, see Gayle Dep. at 263-64, Deposition of Derrick Ezekiel (annexed as Ex. X to Joseph Decl.) ("Ezeliek Dep."), at 43. At the time of the accident, Ezekiel was in a car returning to the work site from Pennsylvania Station. See Ezeliek Dep. at 45-46. In addition, Louis Cevasco, STV/HMM's safety engineer assigned to the Standpipe Project, was present at the work site on July 10, 2004. See Cevasco Dep. at 12-18, 26.
At around 3:40 a.m. on July 10, 2004, Amtrak crane operator David Rollins lost control of the crane at the Breaker Project. See Deposition of David Rollins (annexed as Ex. D to Ely Decl.), at 70-71; Carter Dep. at 193-99. The crane began rolling the approximately 4,062 feet towards the Standpipe Project. See Carter Dep. at 32. At least four or five minutes later, the crane collided with three trucks at the Standpipe Project injuring several people including Gayle. See Carter Dep. at 73; Excerpts From Pennsylvania Station Command Control Transcripts (annexed as Ex. N to Joseph Decl.) ("PSCC Transcripts"), at CVS 001030.*fn3 At the time of the accident, Gayle was the only Amtrak pilot in place at the Standpipe Project work site. See Gayle Dep. at 87-88.
Glenn Pedersen, a construction supervisor employed by HMM, testified that between one to three minutes before the crane's collision he heard a beeping sound that indicated movement along the line. See Deposition of Glenn Pedersen (annexed as Ex. H to Joseph Decl.) ("Pedersen Dep."), at 8-14, 19. Pedersen, who was sitting in one of the three Crescent rail trucks along side Cevasco, who also heard the alarm, turned to check for movement and eventually saw the crane rolling towards the site seconds before its impact. See id. at 9-10. Pedersen testified that it was common to hear the particular sound at issue, and that it was the same sound that was made by trucks at the Standpipe Project site. Pedersen Dep. at 13.
2. Efforts to Warn the Standpipe Project of the Runaway
Crane Amtrak's investigation showed that, after his crew lost control of the crane at the Breaker Project site, Avent made a distress call on a general radio channel stating "[e]mergency, emergency, emergency. The crane is rolling away." Carter Dep. at 80.*fn4 Carter, who reviewed tapes of the radio transmissions, testified that Avent's message was very faint. See Carter Dep. at 80-82. Gayle testified that he did not hear an emergency message. See Gayle Dep. at 172. At 3:43 a.m., Avent also telephoned Pennsylvania Station Command Control ("PSCC") to report that the crane was "rolling towards the tunnel." See PSCC Transcripts at CVS 001030. Avent concluded the transmission stating "[l]et me try to get a hold of Gayle or one of those guys." Id. At 3:45 a.m., Gayle contacted PSCC to report that the crane had collided with the Standpipe work crew and that several people, including himself, were seriously injured. Seeid. Ezekiel testified that, while driving back to the work site from Pennsylvania Station, he received a phone call alerting him of the crane's movement, and he attempted to contact Gayle on his cell phone to warn him, although he did not get through. See Ezekiel Dep. at 45-47. Ezekiel could not recall what time he received the phone call or when he attempted to warn Gayle of the crane's movement. See id. at 46-47.
The Standpipe Project work crew carried communication equipment in the form of cell phones and radios. See Nazzaro Dep. at 32-33; Gayle Dep. at 91-92. Indeed, in its contract with Amtrak, there was a provision in which STV/HMM agreed to "equip all field personnel with radio and/or other communications (walkie-talkie, cell phones, pagers, etc.) using a frequency that would be available to selected Project personnel as shown in the Other Direct Costs." Work Statement ¶ 3.1.6(D). Dennis Nazzaro, the Assistant Project Manager for the STV/HMM joint venture, testified that he was aware of "dead zones" for communications in the tunnel but did not take any remedial measures. Nazzaro Dep. at 21, 31. Likewise, Cevasco acknowledged in his testimony that prior to the accident cell phone and radio services would fail at certain points in the tunnel. See Cevasco Dep. at 79. He discussed the issue informally with Amtrak, but did not take any steps to formally address the problem with STV/HMM or Amtrak. See id.at 80. There was no testimony from either individual as to the state of communications capabilities on the night of the accident, and Gayle testified that both his cell phone and radio were working properly at that time as he was able to communicate with other locations including the PSCC both prior to and after the collision. See Gayle Dep. at 92-93, 132-33.
3. Amtrak's Contract with STV/HMM for Construction Management Services
As noted, Amtrak had contracted with STV/HMM to provide construction management services for the Standpipe Project. The service contract incorporated a separate statement of work and general provisions for the construction management services. See STV/HMM Service Contract ¶ 11. The contract stated that STV/HMM was obligated to:
A. Provide oversight of the General Construction Contractor (GC) and other outside support contracts let by Amtrak. Monitor Amtrak['s] Force Account by field inspection, regularly scheduled progress reviews and by analyzing updates to approved CPM schedules.
B. Facilitate through an approved QA/QC program that all construction as described in the project plans and specifications is provided by the outside GC and sub-contractors.
C. Maintain appropriate records detailing all project activities.
D. Take action to minimize unanticipated construction changes, claims, ...