The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge
MEMORANDUM OPINION & ORDER
On July 10, 2004, the National Railroad Passenger Corporation ("Amtrak") had three separate and unrelated construction projects in progress along the Number 1 Line of the East River Tunnel in New York City. An Amtrak worker lost control of the crane he was operating at the easternmost project site. The crane rolled west, careening into the neighboring site. The three consolidated actions in this matter involve claims for personal injuries suffered as a result of the out-of-control crane. The three actions are: Gayle v. National Railroad Passenger Corp., et al., 06 Civ. 6956 (the "Gayle Action"); Adornetti v. National Railroad Passenger Corp., et al., 06 Civ. 6195 (the "Adornetti Action"); and Vitale v. National Railroad Passenger Corp., et al., 06 Civ. 6196 (the "Vitale Action"). The issue before the court is whether Defendants STV, Inc. ("STV"), Hatch Mott MacDonald ("HMM"), and a joint venture between them called "STV/HMM," can be held liable for negligence.*fn1
The Court referred the general pretrial matters in the three cases to Magistrate Judge Gabriel Gorenstein in August and October, 2006. On July 16, 2009, STV, HMM and STV/HMM moved for summary judgment dismissing the claims and crossclaims asserted against them in all three actions.*fn2 Opposition papers were filed by the plaintiff in the Gayle Action, Edley Gayle ("Gayle"), and co-defendants and crossclaimants Amtrak and Crescent Contracting, Inc. ("Crescent") (collectively, the "nonmovants"). STV, HMM and STV/HMM replied. On March 8, 2010, Magistrate Judge Gorenstein issued a Report and Recommendation ("R&R") recommending that the Court grant the motions for summary judgment. The Court has reviewed the R&R and the timely objections filed by Gayle ("Gayle Objections") and Amtrak ("Amtrak Objections"). For the reasons that follow, the Court adopts Magistrate Judge Gorenstein's findings and recommendations. The motions for summary judgment are granted.
On July 10, 2004, Amtrak had three construction projects in progress along the Number 1 Line of the East River Tunnel. From east to west, the projects were: (1) the removal and installation of a breaker (the "Breaker Project"), (2) the installation of a fire standpipe system (the "Standpipe Project"), and (3) the removal and replacement of track ties. Amtrak contracted with STV/HMM to provide construction management services for the Standpipe Project. Crescent was the general contractor hired to install the standpipe system. The Breaker Project, which utilized a crane owned and operated by Amtrak, was located approximately three-quarters of a mile to the east of the Standpipe Project. The Breaker Project did not, however, involve STV/HMM or its personnel. The issue is whether STV/HMM can be held responsible for injuries at the Standpipe Project caused by the crane from the Breaker Project.
The "Services Contract" (the "Contract") between Amtrak and STV/HMM includes a "statement of work" and "general provisions" for construction management services. (Services Contract inclusive of Statement of Work and General Provisions, Declaration of Ronald E. Joseph, Ex. C.)*fn4 The Contract provides a list of objectives for STV/HMM, including: overseeing the general contractor and other contractors; maintaining records of project activities; minimizing construction changes, claims and budget increases; ensuring compliance with contract terms by contractors; and coordinating track outages for contractors. (Statement of Work ¶ 1.2.) Under the Contract, STV/HMM is also required to "[r]review and comment on GC [General Construction Contractor] Safety Plan and monitor GC Safety Plan during construction." (Id. ¶ 1.2(G).)
STV/HMM agreed to employ a "safety engineer" with "a minimum of seven (7) years experience in safety aspects of heavy construction on projects of similar complexity and magnitude." (Id. ¶ 2.6.2(E).) The safety engineer was required to "be familiar with all required Amtrak, LIRR, OSHA safety regulations . . . [and to have] [s]ucessfully completed the 30-hour OSHA course on Construction Safety and Health (29CFR10126)." (Id.) Under the heading "Project Safety," the Contract provides:
The CM [STV/HMM] shall designate a Safety Officer who shall have full authority to act in behalf of the CM at all times to ensure that all construction work is being performed in accordance with standard industry practices and with state and federal laws regulating job site safety. This position shall review and recommend approval of all GC work plans with regard to safety related issues. Questionable work practices planned to be used by the GC and his sub-contractor(s) shall be noted by the CM and promptly brought to the attention of the GC and the Amtrak Project Manager both verbally and in writing prior to the commencement of such work in the field. All CM personnel who enter into any track area of Amtrak/LIRR shall be required to attend the Amtrak RWP training prior to entering the area. (Id. ¶ 3.2.11.)
Amtrak employees, including "force account personnel," were to work at the Standpipe Project. (R&R at 9.) It is undisputed that Amtrak pilots (rail truck operators) were among the "force account personnel" assigned to the Standpipe Project. (Id.) Paragraph 1.3.1 of the Contract, "Force Account Work," states:
Amtrak force account personnel will provide protection as well as perform a portion of the work required. The CM, with periodic assistance from the Amtrak Project Manager will ensure that necessary Amtrak forces are mobilized to support their share of the construction effort. The CM will:
(i) monitor the work of Amtrak's force account; (ii) provide assistance in planning, budget analysis and job control; (iii) provide technical assistance if required; and (iv) coordinate force account work with work to be scheduled or having been performed by others, and integrate all construction operations into a Master Construction Schedule. (Statement of Work ¶ 1.3.1.) STV/HMM was responsible for providing various "field support personnel, including project managers, schedulers, resident engineers, field inspectors and safety engineer, for the purpose of managing, monitoring, and inspecting the work of the GC and all subcontractors, Amtrak force account personnel and utility companies." (Id. ¶ 2.5.1.) The section of the Contract dealing with the "Construction Phase/Force Account Interface," states that STV/HMM "shall monitor force account (FA) work and verify FA invoices though field checks and the review of FA production reports." (Id. ¶ 3.2.1(D).)
The Standpipe Project's workers consisted of STV/HMM staff, including a safety engineer; construction workers employed by Crescent; and Amtrak employees, including "pilots," who piloted rail trucks to and from the worksite. In July, 2004, Gayle was an Amtrak pilot assigned to the Standpipe Project.*fn5 Amtrak pilots Derek Ezekiel ("Ezekiel") and Sam Nesmith ("Nesmith") were also assigned to the Standpipe Project. (Declaration of Howard Carter ¶ 4, Joseph Decl., Ex. B.) All three were "force account employees" under the Contract. (Id.; Statement of Work ¶ 1.3.1.)
Amtrak monitored movement along the railroad line and briefed Amtrak foremen assigned to the three project sites regarding construction. Amtrak foreman David Zolinski ("Zolinski") oversaw track protection along the full line and monitored track movement. As required by the rules promulgated by the Northeast Operating Rules Advisory Committee ("NORAC Rules"), Zwolinski had taken the track (the Number 1 Line of the East River Tunnel) at the Standpipe Project out of service. Bobby Avent ("Avent"), another Amtrak foreman, was responsible for track protection at the Breaker Project, which as noted, was less than a mile to the east of the Standpipe Project. As explained by Magistrate Judge Gorenstein, it is unclear whether Ezekiel or Gayle, both of whom were Amtrak foremen, was the head protection officer responsible for the Standpipe Project. Ezekiel and Gayle were both, however, aware of the Breaker Project and that the work crew's equipment involved a crane.
Louis Cevasco ("Cevasco"), STV/HMM's safety engineer assigned to the Standpipe Project, was present at the work site on July 10, 2004. Gayle was in one of Crescent's rail trucks and Ezekiel was stationed above the East River Tunnel. Ezekiel, however, abandoned his post with Nesmith (who was also an Amtrak foreman) and was not at the Standpipe Project site at the time of the accident.
Things went wrong at the Breaker Project at around 3:40 a.m. on July 10, 2004. Amtrak employee David Collins ("Collins") lost control of the crane he was operating and the crane began rolling west towards the Standpipe Project. It took the crane at least four or five minutes to travel the approximately 4,062 feet to the Standpipe Project, where it collided with three Crescent rail trucks. Several people were ...