The opinion of the court was delivered by: John T. Curtin United States District Judge
This case was originally filed in New York State Supreme Court, Erie County, on August 2, 2006. It was removed to this court on October 20, 2006 (Item 1). In the complaint, plaintiff alleges that defendant is the owner of property located at 101-103 East Park Drive in Tonawanda, New York. On November 30, 2005, while employed by the Shaw Group and working on defendant's property, plaintiff "was caused to slip and trip and fall to the ground based upon hazardous and snowy icy conditions and debris, resulting in his sustaining a serious injury..." (Item 1, Exh. A). Plaintiff alleges that his accident was a result of the violation of New York Labor Law §§ 200 and 241(6) and various sections of the New York State Industrial Code. Id. Defendant filed an answer to the complaint on September 11, 2006, and then served a notice to admit. Plaintiff, in his response to the notice to admit dated October 2, 2006, stated that his damages exceeded $75,000 (Item 1, Exh. B).
On March 23, 2009, defendant filed a motion for summary judgment (Item 18). Plaintiff filed his response to the motion on April 9, 2009 (Item 21)*fn1, and defendant filed a reply on May 20, 2009 (Item 24). The court determined that oral argument was not necessary. For the reasons that follow, the defendant's motion for summary judgment is granted, and the complaint is dismissed.
Defendant is the title holder to certain property in Tonawanda, New York, known as the Linde site. A portion of the property was used by the United States government to produce materials for the Manhattan Project. Pursuant to the Formerly Utilized Sites Remedial Action Program ("FUSRAP"), defendant entered into an access agreement with the United States Army Corps of Engineers to remove low-level, radioactive-contaminated soil from an area of approximately 28 acres on the Linde site (Item 18, Att. 3, Exh. C) The Army Corps of Engineers then contracted with Shaw Environmental and Infrastructure ("Shaw") to perform remediation at the Linde site. Id., Exh. A, p.10.
In November 2005, plaintiff was employed by Shaw as a general laborer. He alleges that he was injured at an excavation site known as the "M Dig" (Item 18, Att. 3, Exh. E, p. 26). This area was surrounded by an orange safety fence held in place by stanchions and sand bags. Id., p. 28. The area inside the fence was known as the controlled radiological zone ("CRZ"). Access to the CRZ was controlled; employees were required to wear protective clothing, sign in and out, and be monitored for radiation exposure. Id., pp. 28-29. The area surrounding the dig was covered with compacted crushed stone. Id., p. 30. Photographs of the site, taken in the days before and after plaintiff's injury, show an open area surrounding the excavation, with one side of a building within approximately ten feet of the M Dig. Id., Exh. F. Crushed compacted stone covered the area outside the excavation and the edge of the excavation inside and outside the fence (Item 18, Atts. 18, 19).
On November 30, 2005, plaintiff was assigned to assist in pumping contaminated rainwater from the M Dig. A three-inch fire hose was run from the site under the fence, and water was pumped into a tank known as a "suck and blow." Once the tank was full, the hose would be drained, either manually or by using the "blow" feature of the suck and blow (Item 18, Att. 3, Exh. E, pp. 38-39). On that day, plaintiff reported to his union steward that at "approx 9:00 am in "M" Dig while lifting & walking out water line... I injured my back." Id., Exh. J. On February 27, 2006, plaintiff signed a written accident report which again stated that he injured his back "while lifting & walking out [the] water line." Id., Exh. K. Plaintiff reported to his doctor on February 3, 2006 that "while pulling a water hose... [he] did feel a pull of his back." Id., Exh. L. On March 6, 2006, he reported to his physician that "while pulling water hose... [he] did feel his back pop." Id.
On March 14, 2006, during an interview with a representative of Shaw's Workers Compensation carrier, plaintiff stated that he was injured when he lifted the hose over his head to drain the water from it (Item 18, Att. 3, Exh. M). Plaintiff denied any knowledge of defective equipment or safety issues. Id. In his Workers Compensation Claim for Compensation dated April 6, 2006, plaintiff stated that the injury occurred by "pulling-lifting 3 in. [inch] water lines to empty contaminated water back into the dig." Id., Att. 4, Exh. N. On May 4, 2006, plaintiff told an investigator for Shaw's Workers Compensation carrier that he was injured while "lifting them [the hoses]... and I lifted my arms up and I just felt a pop and fell on my knees and I've had pain in my legs and back since." Id., Exh. O.
During his deposition, plaintiff stated that he stepped on a portion of the fence that had curled out, his body twisted, and his feet went out from beneath him. He stated that the hose came down on his hardhat, bounced onto his neck and shoulder, and he dropped to his knees (Item 18, Att. 3, Exh. E, pp. 80-82, 202-03). On July 12, 2006, plaintiff filed a revised Claim for Compensation, in which he stated that he was injured when he "slipped and tripped on water and debris falling to ground with a hose landing on neck." Id., Exh. Q.
1. Summary Judgment Standard
Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2); see also Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247 (1986). The burden of demonstrating the absence of any genuine dispute as to a material fact rests with the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). In determining whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [its] favor." Anderson, 477 U.S. at 255.
"Only when reasonable minds could not differ as to the import of evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849 (1991). Summary judgment cannot be entered "if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party." Yurman Design, Inc. v. Golden Treasure Imps., Inc., 275 F. Supp. 2d 506, 508 (S.D.N.Y. 2003). The trial court's function at the summary judgment stage "is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to ...