United States District Court, N.D. New York
DANIEL R. SANTOLA, ESQ., MARGIE A. SOEHL, ESQ., Powers, Santola Law Firm, Albany, NY, for the Plaintiffs.
JEFFREY D. SCHULMAN, ESQ., New York State Electric & Gas Corporation, Pillinger, Miller Law Firm, Syracuse, NY, MARC H. GOLDBERG, ESQ., Verizon Communications, Inc., Phillips, Lytle Law Firm, Albany, NY, for the Defendants.
MEMORANDUM-DECISION AND ORDER
GARY L. SHARPE, Chief District Judge.
Plaintiffs Kenneth Kerrigan ("Kerrigan") and Tammy Kerrigan commenced this diversity action against defendants New York State Electric & Gas Corporation (NYSEG), Comcast Corporation,  and Verizon Communications, Inc., alleging violations of New York Labor Law §§ 200 and 241(6), as well as a common law claim for negligence and a derivative loss of consortium claim by Tammy Kerrigan. ( See generally Compl., Dkt. No. 1.) Pending before the court are motions for summary judgment by both Verizon, (Dkt. No. 72), and NYSEG, (Dkt. No. 73), as well as a cross motion for summary judgment filed by plaintiffs, (Dkt. No. 81). For the reasons that follow, Verizon's motion is granted, and the remaining motions are denied.
This personal injury action arises out of an October 29, 2010 incident on Shear Hill Road in Mahopac, New York. (NYSEG Statement of Material Facts (SMF) ¶¶ 2-3, Dkt. No. 73, Attach. 2.) By way of background, NYSEG and New York Telephone Company, currently known as Verizon, previously entered into a Rental-Joint Ownership Agreement, which was in effect at the time relevant to this action. (Verizon SMF ¶ 1, Dkt. No. 72, Attach. 14; Dkt. No. 79, Attach. 11.) That agreement governs the ownership of certain utility poles as between NYSEG and Verizon, and sets forth procedures by which NYSEG and Verizon may acquire joint ownership in new utility poles erected by the other. (Dkt. No. 79, Attach. 11 at 13-20.) As relevant here, with respect to the erection of new poles, "joint ownership [is] deemed to exist" "[u]pon completion of erection of such poles." ( Id. at 16.)
NYSEG and Verizon were joint owners of four utility poles "that were in the ground and erected at or near the roadway of Shear Hill Road" in Mahopac. (NYSEG SMF ¶¶ 122, 124.) Utility Shared Services Corporation, an affiliate of NYSEG, had entered into a Master Services Procurement Agreement with Hawkeye, LLC to erect new utility poles at this location, (Verizon SMF ¶¶ 8-9; Dkt. No. 77, Attach. 3 at 20-57), and NYSEG had issued a "Contract Release Order" for the replacement of four poles by Hawkeye, (Dkt. No. 72, Attach. 11 at 2-4). On the date in question, Kerrigan, an employee of Hawkeye, (NYSEG SMF ¶ 5), was tasked with going to the site with a "digger truck" and "bucket truck, " while hauling telephone poles from a NYSEG yard in Mahopac, (Verizon SMF ¶¶ 27-28), to replace existing utility poles with new poles, (NYSEG SMF ¶ 19). Specifically, the project entailed "spotting poles, " which Kerrigan described as "go[ing] out and lay[ing] poles out." ( Id. ¶ 21-22; Dkt. No. 78, Attach. 6 at 101.) In order to transport the new poles to their ultimate erection site, the crew utilized a trailer attached to the digger truck to haul the poles to the site; the job also involved the use of a bucket truck and the foreman's pickup truck. (NYSEG SMF ¶¶ 37, 38.) The crew used the digger truck to load the trailer with four utility poles, each measuring either forty or forty-five feet in length. ( Id. ¶¶ 49, 52; Pls.' SMF ¶ 17, Dkt. No. 84.)
The crew for this particular job included Kerrigan, foreman Ben Gardner, lineman Kenneth Vanner, and an apprentice. (Verizon SMF ¶ 26; NYSEG SMF ¶¶ 6, 8.) The crew traveled to its destination in a caravan, with Gardner's pickup truck in front, followed by the digger truck and trailer operated by Vanner, and finally the bucket truck, driven by the apprentice, in which Kerrigan was a passenger. (NYSEG SMF ¶¶ 55-59.) Upon reaching the location where the first pole was to be laid out, the caravan stopped, and dropped one pole off of the trailer. ( Id. ¶¶ 61-62.) The caravan then proceeded down the road to drop off the second pole. ( Id. ¶ 63.) After approximately fifty yards, the caravan stopped again, although Kerrigan was not sure why. ( Id. ¶ 64; Dkt. No. 78, Attach. 6 at 147-49.) Kerrigan got out of his truck, and was told by Vanner to "hold on a minute, " so that Vanner could discuss something with Gardner. (Dkt. No. 78, Attach. 6 at 149.) During this time, the crew's trucks were "set up in the road, " in the east-bound lane of a two-lane roadway, because the shoulder on the road was "[n]o more than a foot, foot and a half" wide. ( Id. at 130-40, 143.)
While Kerrigan was standing in the road, "waiting on [Vanner] to come back and tell [him] what was going on, " he observed a tractor-trailer approaching them in the west-bound lane. ( Id. at 150-51.) When the tractor-trailer got approximately even with the crew's location, it stopped in the road because it could not fit underneath power lines that passed above its lane of travel. ( Id. at 152-54.) The driver of the tractor-trailer then exited his vehicle and asked Kerrigan if the crew could move their trucks, so that he could pass under the power lines in the east-bound lane. ( Id. at 155-56.) Kerrigan relayed this request to Vanner, who said he would "handle it" and again told Kerrigan to "hold on" while he figured out what to do. ( Id. at 155.) At that point, Vanner walked off, and two additional cars approached behind the stopped tractor-trailer in the west-bound lane. ( Id. at 156.) Kerrigan, in an attempt to get a better view of the traffic situation behind the tractor-trailer, "stepped back from the center of the roadway, " to a point "[b]etween the trailer that held the poles and the digger that pulled the poles." ( Id. at 156-57.) Unbeknownst to Kerrigan, Vanner had "got back in the truck[, ] put the truck in gear, " and began to pull the truck forward. ( Id. at 156-57, 166-67.) The truck hit Kerrigan, knocked him off balance, and ran over his ankle, breaking his leg. ( Id. at 168-69.) Plaintiffs subsequently commenced this action alleging several causes of action against NYSEG and Verizon.
III. Standard of Review
The standard of review pursuant to Fed.R.Civ.P. 56 is well established and will not be repeated here. For a full discussion of the standard, the court refers the parties to its decision in Wagner v. Swarts, 827 F.Supp.2d 85, 92 (N.D.N.Y. 2011), aff'd sub nom. Wagner v. Sprague, 489 F.Appx. 500 (2d Cir. 2012).
A. New York Labor Law ...