The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
Plaintiffs commenced this action pursuant to the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51 et seq., and New York state common law asserting claims against Defendants arising from an automobile accident on December 11, 2007. There are several motions for summary judgment presently pending in this matter. The Court will address the motions seriatim.
The Court will apply the well-known standard for deciding a summary judgment motion brought pursuant to Fed. R. Civ. P. 56. That standard need not be repeated in full.
Suffice it to say that the Court may grant summary judgment only where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Savino v. City of New York, 331 F.3d 63, 71 (2d Cir. 2003).
The function of the district court in considering the motion for summary judgment is not to resolve disputed issues of fact but only to determine whether there is a genuine issue to be tried. Assessments of credibility and choices between conflicting versions of events are matters for the jury, not for the court on summary judgment.
Gorman-Bakos v. Cornell Co-op Extension of Schenectady County, 252 F.3d 545, 558 (2d Cir. 2001).
In reviewing the motions for summary judgment, the Court will strictly apply the dictates of the Northern District's Local Rules. See Walsh v. City of Kingston, 2010 WL 681315, at *2 (N.D.N.Y. Feb. 23, 2010)("The Local Rules of the Northern District provide a mechanism for the efficient resolution of summary judgment motions."). In doing so, the Court will not consider memoranda of law that are in excess of the Local Rule page limitation and will not search the record for evidence that is not specifically cited ("incorporation by reference" of a deposition transcript is not a specific citation). See N.D.N.Y. L.R. 7.1(a)(1)("No party shall file or serve a memorandum of law that exceeds twenty-five (25) pages in length, unless that party obtains leave of the judge hearing the motion prior to filing.")(emphasis in original); N.D.N.Y. L.R. 7.1(a)(3)("The Court shall not consider any papers required under this Rule that are . . . not in compliance with this Rule unless good cause is shown."); N.D.N.Y. L.R. 10.1 (prescribing the form of papers); see also Amnesty America v. Town of West Hartford, 288 F.3d 467, 470 (2d Cir. 2002)("We agree with those circuits that have held that FED. R. CIV. P. 56 does not impose an obligation on a district court to perform an independent review of the record to find proof of a factual dispute.")(citations omitted); Monahan v. New York City Dep't of Corrections, 214 F.3d 275, 291 (2d Cir. 2000)(The Local Rules require the parties "to clarify the elements of the substantive law which remain at issue because they turn on contested facts" and the Court "is not required to consider what the parties fail to point out.")(internal quotation marks and citations omitted); Riley v. Town of Bethlehem, 5 F. Supp.2d 92, 93 (N.D.N.Y.1998)(By "providing precise citations to the record where the disputed [or undisputed] facts are located, both parties and the Court can move immediately to the gravamen of the case; absent this forced focus, the parties' briefs can remain, as is often the case, as 'two ships passing in the night'. . . . If the facts supporting the arguments are in the record, counsel should be able to cite to them." ).
Unless indicated otherwise, the following facts are not in dispute.
Plaintiff Lawrence Mancini ("Plaintiff") was employed by CSX Transportation, Inc. ("CSXT") on December 11, 2007 as a train conductor. His home terminal was in Watertown, New York. Plaintiff's job assignment that day consisted of delivering rail cars to a rail yard in Carthage, New York. He was working with another CSXT employee, Walter Weidner ("Weidner"), who was the train engineer.
After delivering the rail cars to Carthage, New York, Plaintiff lapsed time*fn1 in Calcium, New York at approximately 9 p.m. The CSXT Trainmaster, Defendant Richard T. Ketterer ("Ketterer"), knowing that Plaintiff would lapse time in Calcium, had previously telephoned the CSXT dispatcher in Albany, New York and asked that a Quad A*fn2 van and driver be dispatched to transport Plaintiff and Weidner to their home terminal. When Plaintiff stopped the train and there was no van to transport him and Weidner, he contacted the dispatcher. The dispatcher told Plaintiff that the Quad A driver could not find Calcium and another driver was dispatched, but that it would take "hours" for the van to arrive.*fn3 Although Plaintiff and Weidner could have waited in the heated-cab of the train for the Quad A van, there was some concern that the road conditions would deteriorate during the wait.*fn4 Weidner called Ketterer for a ride back to the terminal. Because Plaintiff, as the conductor, was in charge of the train and its crew (Weidner and himself), an inference can be drawn that Weidner called Ketterer with Plaintiff's consent or at Plaintiff's instruction. In the previous five years, Plaintiff had taken rides back to his terminal from Ketterer approximately twenty (20) times.
Ketterer used his 2007 Chevrolet Colorado extended-cab pickup truck to transport Plaintiff and Weidner.*fn5 When Ketterer arrived at the train in Calcium, Weidner got into the front passenger's seat and Plaintiff got into the rear "jump seat." In the jump seat, Plaintiff's legs straddled the back of Weidner's seat. Plaintiff had ridden in the rear jump seat of Ketterer's pickup truck once or twice before December 11th. The owner's manual for the 2007 Chevrolet Colorado pickup truck contains no weight restrictions or warnings against adults riding in the rear jump seat. Ketterer checked to make sure that the passengers had their seatbelts on, and then left.
During the return trip, a van in front of Ketterer stopped in the line of traffic waiting to make a left turn on LeRay Street in Watertown, New York. Ketterer contends that when he saw the van, he pumped his breaks on and off to insure that he did not start to slide, and then brought his vehicle to a complete stop about five (5) to seven (7) car lengths behind the van.*fn6 Ketterer further contends that, approximately 15-30 seconds after he came to a stop, he saw in his rear-view mirror the headlights of an approaching vehicle. When it appeared to Ketterer that the vehicle would strike Ketterer's vehicle, Ketterer took his foot off of the bake to lessen the impact, braced himself and slid down slightly in his seat, and attempted to yell a warning to his passengers. However, he contends that he was unable to yell a warning because the vehicle struck Ketterer's vehicle a second or two from the time Ketterer realized that a collision was imminent.
The rearward approaching vehicle was operated by Defendant Carol Ann Ashwood ("Ashwood"). Ashwood contends that, at the time, it was dark and raining very hard. She asserts that she did not see break lights from Ketterer's vehicle until Ketterer abruptly stopped in the line of traffic whereupon she collided into the rear of Ketterer's pick-up truck.
There is no dispute that, prior to the impact, there was no warning of the impact and no noise such as screeching brakes or a horn. Plaintiff asserts that he was severely injured by the collision and permanently disabled from his railroad employment.
Following a police investigation, Ashwood was arrested and ticketed for aggravated unlicensed operation of a motor vehicle, operating an uninsured vehicle, following too closely, having expired insurance, and operating an uninspected vehicle. She was convicted of violating N.Y. Vehicle and Traffic Law section 511-a, facilitating aggravated unlicensed operation of a motor vehicle in the third degree.
a. Plaintiff's Motion for Partial Summary Judgment against Defendant Ketterer
Plaintiff moves for partial summary judgment on the issue of liability against Defendant Ketterer [dkt. # 30], contending that Ketterer was negligent in (1) failing to warn Plaintiff of the impending crash, and (2) allowing Plaintiff to ride in the jump seat that lacked "lumbar, upper torso, neck, and head support and, so, ...