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Daza v. Pile Foundation Construction Co., Inc.

United States District Court, Second Circuit

December 5, 2013

JON DAZA, Plaintiff,

FRIEDMAN, JAMES & BUCHSBAUM LLP, Andrew V. Buchsbaum, Esq. Bernard Friedman, Esq., New York, New York, Attorneys for Plaintiff.

FREEHILL HOGAN & MAHAR, LLP, John F. Karpousis, Esq. Carolyn Elizabeth Bundy, Esq., New York, New York, Attorneys for Defendants Pile Foundation Construction Company, Inc., and the Barge "Uncle Leo".

LEWIS JOHS AVALLONE AVILES, LLP, Kevin G. Mescall, Esq., New York, New York, Attorneys for Defendants URS Corporation and URS Corporation-New York.

COZEN O'CONNOR, Anita B. Weinstein, Esq., Maria J. Ciccia, Esq., New York, New York, Attorneys for Defendants URS Corporation and URS Corporation-New York.

COLLERAN, O'HARA & MILLS, L.L.P., John Stackpole Groarke, Esq., Steven C. Farkas, Esq., Garden City, New York, Attorneys for Defendants AECOM Services, Inc. and AECOM USA, Inc.

HANNUM FERETIC PRENDERGAST & MERLINO, LLC, John E. Hannum, Esq., David P. Freehan, Esq., New York, New York, Attorneys for Defendants The City of New York, The New York City Department of Parks and Recreation, The New York City Department of Parks and Recreation Capital Projects Division, and The New York City Economic Development Corporation.



Jon Daza brings this action to recover damages for injuries he sustained on May 20, 2010, when a crane block weighing at least a ton tipped over and crushed his left leg. The crane block was located on a barge, the "Uncle Leo, " one of three barges owned by Daza's employer, Pile Foundation Construction Company, Inc. ("Pile"). The barge was moored in the East River to assist in an East River Park construction project that Pile had been awarded by the City of New York, its Parks Department, and the Department's Capital Projects Division (collectively, with the City's Economic Development Corporation, "the City"). The City had also hired the predecessor to URS Corporation and URS Corporation-New York (collectively, "URS") as construction manager to oversee the project. URS in turn hired the predecessor to AECOM Services, Inc. and AECOM USA, Inc. (collectively, "AECOM") as subcontractor to oversee marine construction and demolition. Anthony Rivara Contracting, LLC, was also named in the complaint as a defendant but has since been dismissed from the action.

The seven counts in Daza's second amended complaint contain two categories of claims against the defendants. First, he claims that the City, URS, and AECOM are liable to him for negligence under N.Y. Labor Law §§ 200, 240(1), and 246. Second, he claims that Pile is liable to him under either the Jones Act, 46 U.S.C. § 30104 et seq, or the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 901 et seq. The defendants have asserted numerous cross-claims against one another for contribution, indemnity, and breach of contract.

All parties now move for summary judgment. Daza moves for partial summary judgment on liability and his Labor Law § 240(1) claims. Pile moves for summary judgment dismissing Daza's claims under the Jones Act and the LHWCA, dismissing its codefendants' cross-claims for indemnification, and dismissing the City's claim for breach of contract. URS and AECOM move for summary judgment dismissing Daza's Labor Law claims and all cross-claims against them. URS also moves for summary judgment granting its claim of contractual indemnification and contribution against AECOM. The City moves for summary judgment dismissing Daza's Labor Law claims and its co-defendants' claims for contribution. The City also moves for summary judgment granting its claims against URS and AECOM for contractual indemnification, against Pile for common law and contractual indemnification, and against Pile for breach of contract.

For the reasons set forth below, Daza's motion for partial summary judgment on his Labor Law § 240(1) claim against the City is granted. The City's motion for summary judgment is granted dismissing Daza's claims under §§ 200 and 241(6). The summary judgment motions of URS and AECOM are granted, dismissing all of Daza's Labor Law claims against them. Pile's motion for summary judgment is granted, dismissing Daza's claims under the Jones Act and LHWCA. Pile's motion for summary judgment is also granted as to the City's cross-claims for common law indemnity and breach of contract, but denied as to the City's cross-claim for contractual indemnity. Finally, the summary judgment motions of URS and AECOM on the City's claims for indemnity are granted.


Except where otherwise noted, the following facts are undisputed.

I. The Circumstances of the Injury

Daza has worked in Manhattan as a member of Local 1456 of the Dockbuilders' Union since 2008. On May 19, 2010, Daza was assigned to a project rebuilding the East River Promenade on the Lower East Side of Manhattan for which Pile was the general contractor. On that day, Daza rode the Uncle Leo barge from where it had been stationed in Flushing, Queens, to the East River construction site. That night, the workers, including Daza and his foreman, Brian Nee, disconnected the crane block from one of the cranes on board the Uncle Leo and laid it on its side on the deck of the barge.

A crane block is a large steel apparatus about six-and-one-half feet tall and two feet wide, weighing between one and two and-one-half tons. It is suspended from the cables that hang from the crane's boom. The block consists of a set of "sheaves" - pulleys, essentially - in its upper portion and a "shackle" - a horseshoe-shaped hook - in its lower portion. The sheaves and shackle are connected by a swivel, which allows the shackle to rotate. Roughly three-quarters of the deck of the Uncle Leo was covered by timber "crane mats." The mats are arranged side by side and end to end and are intended to protect the deck of the barge from damage by the cranes.

On the morning of May 20, 2010, the crew set out to replace one of the cables on the crane block. Under Nee's direction, Daza and his fellow workers attached straps to the crane block and used the crane to hoist the block over to the crane mats. When the crane operator lowered the block, the shackle wedged itself into a three-inch gap between two crane mats. With the shackle wedged, the block stood vertically without any additional support or bracing. Nee then decided to change the cable while the block was in a standing position. The workers removed the straps that the crane had used to hoist the block.

Nee attached a "choker" chain to the top of the crane block that connected the shackle to the crane boom. He then directed Daza to walk to the opposite side of the crane block. As Daza began walking to the other side, the crane block toppled over and struck him on the lower part of his left leg. Daza sustained four major fractures of the bones in his leg. He has since undergone three surgeries. His doctor states that Daza will need anti-inflammatory and narcotic pain-killing medications for the rest of his life and will need ankle replacement or fusion in the future. Pile is currently paying Daza compensation under the LHWCA, although Daza contends that no final award has been made.

None of the witnesses at the scene who were deposed saw anything that might explain why the crane block toppled over. The block had been standing upright for between five and ten minutes before it collapsed. Both Nee and Daza testified that they saw no boats pass that could have created a wake that would have rocked the Uncle Leo, though the author of URS's incident report testified that Nee had previously identified "wakes and/or waves" as the "contributing cause" of the accident. Both Nee and Daza testified that they did not see anyone touch the crane block immediately before it fell. Although Nee admitted that he initially intended to change the crane block cables while the block was on its side, he also testified that he had previously changed a cable on a crane block in an upright position ten to twelve times.

Daza has submitted two expert reports in support of his claims. Both experts opine that the accident could have been avoided had the crane block been properly secured. One expert states that the wood composing the crane mats was in such shoddy condition that the crane mats should not have been used to support an upright crane block. The expert further states that, had undamaged crane mats been properly positioned without space between them, the crane block could not have been set in a vertical position. Neither expert gives an opinion on the actual cause of the accident.

II. The East River Promenade Project

The East River Promenade project involved the demolition and reconstruction of a promenade running along the East River in lower Manhattan. Pile won the job pursuant to a $54 million bid it submitted to the City. Directly to the south of the construction site was a lot owned by the New York City Economic Development Corporation (the "EDC lot"). The EDC lot served as the major land-based route of ingress and egress for the construction site. It was used for all deliveries and served as a staging area for construction activities including, for much of the time, storage of equipment and materials. Pile's authorization to use the lot expired in 2007 but, despite the EDC's repeated attempts thereafter to prohibit Pile's use of, at a minimum, the southern portion of the lot, Pile continued to use the lot as a staging area through the date of Daza's accident and beyond.

The City's on-site construction project manager was Mohamed Ayoub. His responsibilities were to inspect the work done by Pile, negotiate change orders, and coordinate with the construction consultants employed by URS and AECOM. Ayoub's oversight extended from the face of the sea wall to the construction fences, but not to any barges. Although Nee testified that Ayoub would give directions on what he wanted done, neither Nee's nor anyone else's testimony indicates that Ayoub gave any instructions regarding what was done on the barges. Ayoub did not directly supervise Pile employees or control the means of construction, nor was he authorized to stop work he believed to be unsafe.

In April 2001 the City hired URS's predecessor company as a consultant for the project. URS's on-site project manager was Matthew Barba. Barba testified that he reported directly to Ayoub. Barba's responsibilities were to perform daily walkthroughs of the construction site to observe progress and ensure safety. If work was not being done according to code, he did not have the authority to stop work or change Pile's operations. Instead, Barba could submit a recommendation to the City describing the problems he saw on site and the City would then decide whether to stop work. If any directives were handed down by the City, Barba would ensure compliance.

Barba's responsibilities were limited to the land boundaries of the construction site and did not include the EDC lot. He testified that he walked out onto construction barges only if doing so provided a better vantage point from which to photograph the land. Barba had no direct control over Pile employees and could not dictate the means or mode of construction. Once a month, URS brought in a third-party safety company, the Construction and Realty Safety Group, to inspect the site, log all activities, and note any noncompliance with safety standards.

URS, in turn, hired a construction subconsultant, AECOM, to oversee the marine portions of the job. Anibal Esteves Santos was AECOM's sole on-site project manager, engineer, and inspector. He, like Barba, reported to Ayoub. Pursuant to AECOM's contract with URS, Santos was responsible for tracking and inspecting the progress of Pile's work, recording the amount of work performed by Pile on a given day, and writing daily log reports with a summary of all activities. Santos, like Barba, only boarded barges to take pictures of what was on land. He had no control over Pile employees. Like Barba, he could not stop work on the project but could submit recommendations to the City that it do so. AECOM's contract made it responsible only for addressing safety hazards arising from its own operations and activities.

Ayoub, Barba, and Santos were all at the construction site on the day of the accident, but none of them were on or in view of the Uncle Leo.

III. Jon Daza's Employment

After becoming a member of the Dockbuilders' union in 2008, Daza spent the majority of his time working for Pile. According to his work logs, Daza spent roughly 85% of his days under Pile's direction, with the remaining 15% split between two other construction companies. Daza's first union job was on the East River project, lasting roughly a year until he left for another job. He then worked on the project for a second time, beginning one day before his accident in May of 2010.

Daza's duties on the East River Project were to assist in removing old wooden pilings and replacing them with steel pilings. He also was responsible for loading materials such as pre-cast concrete onto the barges. Daza estimated that he spent roughly 75-80% of his working time on barges. Daza admits that he had no responsibility for moving a barge and never steered on any tugboat during the time the barges were moved. However, Daza did remain on the barges while they were being moved - it is disputed how often he did so - and would occasionally help with handling lines and lifting and dropping the barge's "spuds, " or pilings. He testified that the barges were moved every three or four days, usually no more than a barge length or two, and most moves would take no more than two hours. Daza also helped with pumping water out of the barges every two days. ...

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