Opinion
98-CV-0027E(F)
July 26, 2000
Attorneys for the Plaintiff, James R. Walsh, Esq., c/o Walsh, Roberts Grace, 400 Rand Bldg., Buffalo, NY.
Attorneys for the Defendant, Norton — Preston Lee Zarlock, Esq., c/o Phillips, Lytle, Hitchcock, Blame Huber, 3400 HSBC Center, Buffalo, NY. HVES — James Schultz, Esq., c/o Law Offices of James M. DeVoy, 298 Main St., Suite 302, Buffalo, NY. Haseley — Robert E. Scott, Esq., c/o Givson, McAskill Crosby, 69 Delaware Ave., Suite 900, Buffalo, NY.
MEMORANDUM and ORDER
In this diversity personal injury action, plaintiff Francis D. Szlachta alleges that, due to the negligence of defendant Norton Company ("Norton") in keeping its factory entryways and surrounding parking lot in a passable, ice-free condition, he slipped and fell, thereby suffering extensive injuries for which he seeks damages in the amount of $4 million. Jurisdiction being proper pursuant to 28 U.S.C. § 1332, the undersigned now addresses the motion for summary judgment brought by third-party defendant Haseley Trucking Co., Inc. ("Haseley"). Because Haseley has failed to establish the absence of any genuine issue of material fact, its motion will be denied.
Plaintiff Francis D. Szlachta is the person who allegedly slipped and fell; his wife, Deborah M. Szlachta, has brought a claim for loss of consortium. Unless otherwise indicated, all references to "plaintiff" or "Szlachta" are to Francis.
As a threshold matter, Norton argues that Haseley's motion should be denied for the latter's failure to append to its motion a statement of undisputed facts as called for by Rule 56 of the Local Rules of Civil Procedure ("LRCvP"). Inasmuch as Haseley did ultimately submit a statement with its reply papers and inasmuch as Norton will suffer no prejudice given the within disposition of Haseley's motion, the undersigned will exercise the discretion accorded him by LRCvP 56 and consider the late submission.
Plaintiff alleges that he was injured February 18, 1997 at approximately 6:55 a.m. when he slipped and fell in the parking lot of Norton's plant in Wheatfield, N.Y More specifically, plaintiff claims to have slipped on a patch of "black ice" on the walkway leading to Door #35 and fallen backwards onto the trailer hitch of a trailer owned by third-party defendant H.V.E.S. Electrical, Inc. The single factual dispute for purposes of the instant motion is how far from Door #35 plaintiff was when he allegedly fell.
These facts are not disputed. For many years prior to February 18, 1997 Norton had contracted with Haseley to plow and salt its Wheatfield plant's parking lot. A facet of that agreement is reflected in the following excerpt from the parties' Hold Harmless Agreement:
"[Haseley] hereby agrees to defend, indemnify and hold [Norton] harmless against any and all suits, actions and proceedings, legal or administrative, public or private, and any and all claims, liabilities, judgments, damages, interest, attorney's fees, costs and expenses of whatsoever kind or nature which are or are alleged to be caused by or as a result of any act, omission, fault or negligence, active or passive, of [Haseley], its sub-contractors, agents, employees, or any other third party acting under [Haseley's] direction or control." Hold Harmless Agreement, attached as Exh M to Dec. 6, 1999 Aff. of Robert E. Scott, Esq.
As part of their snow-removal duties, Haseley's employees were to plow and salt as close to the Norton building as possible. They were similarly responsible for getting as close as possible to any trailers or other vehicles parked near the main building. At the same time, Norton employees — in particular one Thomas Sawyer — were responsible for removing snow from the vicinity of the doorways, including Door #35. On the night before the alleged incident, Haseley did five hours of plowing and two hours of salting, all of which was concluded at approximately midnight.
Plaintiff's action was removed to this Court by notice filed January 12, 1998. On September 1, 1998 Norton filed a Third-Party Complaint naming Haseley and H.VE.S. as third-party defendants in an action for contribution and indemnification. In support of its motion for summary judgment, Haseley argues that, given the scope of its contract with Norton — responsibility for the parking let, but not the walkways in front of the doors —, Haseley owed no duty to plaintiff. This is so, contends Haseley, because, under New York law, a snow-removal contractor may not be held liable in connection with a snow-removal related injury unless the contract at issue is sufficiently "comprehensive" — i.e., so broad as to displace the landowner's duty to maintain the property safely. Accordingly, the argument goes, because Haseley's contract with Norton was "limited," Haseley owed no duty to plaintiff. As a second ground for summary judgment, Haseley argues that plaintiff cannot show that he relied to his detriment on Haseley's continued performance of its snow-removal obligation.
In opposition, Norton argues that this motion should be denied because there exist genuine issues of material fact both as to whether plaintiff's alleged fall took place in the parking lot — which area Haseley was charged to plow — and as to whether Haseley created or contributed to the allegedly hazardous condition. If either of those contentions is true, Haseley would, by virtue of its agreement with Norton, be required to indemnify Norton, irrespective of whether Haseley owed a duty to plaintiff.
Norton also argues that Haseley is liable to it based on implied indemnity. According to this theory, if Norton demonstrates that Haseley contributed in any way to plaintiff's injury, Haseley is liable — again, even if the Court finds that Haseley owed no duty to plaintiff. Similarly, Norton contends that there exist genuine issues of material fact as to whether Haseley created or increased the snow-related hazard and is, therefore, liable for contribution.
A motion for summary judgment may not be granted unless the movant demonstrates that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FRCvP 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). "In assessing the record to determine whether there is a genuine issue as to any material fact, the district court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000). In other words, if there is any evidence from which a reasonable inference could be drawn in favor of the non-moving party summary judgment is improper. Ibid. (citing Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988)).
Haseley's motion must be denied because its argument turns on a genuine issue of material fact — to wit, where plaintiff fell. Haseley contends that, because plaintiff fell — if he fell at all — in a zone for which Haseley had no responsibility, Haseley owed plaintiff no duty. Haseley's premise is that, because Norton's employees were responsible for clearing snow from the area extending six feet from Door #35 and plaintiff maintains that he fell within two feet of Door #35, then, regardless of the condition of the walkway, Haseley cannot have done anything wrong and is not, therefore, liable to Norton for indemnification or contribution. The difficulty with this position is that the record as it exists today gives rise to nothing resembling certitude as to the site of plaintiff's alleged fall. While clearly plaintiff has attested to his having fallen two feet from Door #35, his answers to two sets of interrogatories as well as other deposition testimony place the point of contact some five to eight feet from the door. The question is further complicated by the fact that Sawyer's testimony was that Norton employees shoveled "approximately" six feet from the plant's entryways. Even more significant for present purposes, however, is that, not only does plaintiff's description vacillate between two and eight feet, but his own rendering of the fall site suggests that, for him to have struck the H.V.E.S. trailer hitch on his way to the ground, the fall took place at least eight feet from Door #35. Thus, while this Court makes no determination as to where plaintiff fell or as to whether Haseley's performance of its duties can have given rise to any liability, it is nevertheless abundantly clear that the existence of genuine issues of material fact as to the location of the fall precludes the granting of summary judgment. See McBride v. Stewart's Ice Cream Company, Inc., 691 N.Y.S.2d 630, 630 (App.Div., 3d Dep't 1999) (holding that summary judgment in favor of third-party defendant on hold harmless agreement was precluded by genuine issues of material fact as to where plaintiff fell and how such location related to the question of third-party defendant's negligence vel non).
See Sawyer Dep., attached as Exh L to Scott Aff., at 28.
See Szlachta Dep., attached as Exh G to Scott Aff., at 35-38.
See Exhs A B as attached to Jan. 3, 2000 Aff. of Preston L. Szlachta, Esq., and Szlachta Dep. at 146. While the undersigned recognizes the procedural infirmity of plaintiff's having failed to sign the answers to his interrogatories, any such deficiency — for purposes of this motion, at least — is compensated for by the equivocation as to the site of the alleged fall within plaintiff's deposition testimony.
See Sawyer Dep., attached as Exh L to Dec. 6, 1999 Aff. of Robert E. Scott, Esq., at 28.
See Szlachta's Drawing, attached as Exh L to Zarlock Aff.
Accordingly and because there exist genuine issues of material fact as to where plaintiff fell — if indeed he did fall —, it is hereby ORDERED that third-party defendant Haseley's motion for summary judgment is denied.