Opinion
16927/04.
Decided May 31, 2006.
Defendants move seeking an order granting them summary judgment over plaintiff. Defendants contend that as contractors, hired to perform work pursuant to a contract with a non-party, they are not liable to plaintiff, a third-party, for the accident alleged. Plaintiff opposes the instant motion alleging that questions of fact preclude summary judgement.
For the reasons that follow hereinafter, defendants' motion is hereby granted.
The instant action is one for personal injuries. Within his notice of claim, plaintiff alleges that defendants were contractors or engineers for a guard rail installation project on behalf of the State of New York Department of Public Works, which included the area located along Route 9W in Stony Point, particularly mile markers 8501 1245 and 8501 1256. It is alleged that defendants were negligent in, among other things, failing to erect guardrails at particular points of danger along Route 9W. Plaintiff, within his bill of particulars, alleges the following. On August 29, 2001, at approximately 12:30 AM, plaintiff, a passenger in a vehicle operated by a non-party, sustained injury when said vehicle left the roadway located on Route 9W near the town of Stony Point, Rockland, NY. Said vehicle entered an open area where no guardrails were present and thereafter plunged down an embankment. It is alleged that defendants are liable inasmuch as they designed, installed, and constructed a guardrail that was unreasonably dangerous, hazardous and unsafe. Moreover, it is alleged that defendants are liable inasmuch as they failed to design, install, construct or call for or recommend the placement of a guardrail at the location of the accident herein. It is further alleged that defendants are liable inasmuch as they failed to change or modify the plan given to them when they were retained.
In support of the within motion, defendants provide the deposition transcript of Jonathan Hubbell (Jonathan), who testified, in pertinent part, as follows. On the date of his deposition, Jonathan had been employed by defendant O.W. HUBBELL SONS (Hubbell), since 1971, serving as its vice president for the preceding eight years. Hubbell's business was dipping and galvanizing steel. Hubbell was started by Jonathan's grandfather back in 1925. After World War II, Jonathan's father and uncle joined the business forming the partnership known as Hubbell. Thereafter, Hubbell and Hubbell Highway Signs, another business, were sold to Michigan General Corporation (Michigan) who at the time was putting together a conglomerate of companies in several states. Jonathan's uncle continued to manage Hubbell when it was bought by Michigan. Hubbell was ultimately sold back to Jonathan's uncle in the early 1980s, along with several other companies such as Hubbell Electric and Highway. These companies operated through 1990, performing sign and guardrail projects in several states. These companies went into bankruptcy and the only company to survive was Hubbell, a galvanizing company. Jonathan had no personal knowledge of the project involving the installation of guardrails near Stony Point nor of any documents concerning the same. His knowledge was limited to his experience while employed with Hubbell. In his experience, with regard to guardrail installation for the Department of Transportation (DOT), the DOT engineer marked the locations where the guardrail would be installed and a contractor, such as Hubbell would install the guardrails in accordance with the plan provided. The DOT engineer had an inspector who would travel with the contractor marking the areas where the guardrail would be installed. DOT projects were always performed pursuant to written contracts. The general contractor would execute the contract and would almost always subcontract portions of the work to be performed, also using a written contract. Contractors would not be involved in the design plan for the installation of guardrails when they performed work for the DOT. Instead, the DOT would determine the placement of the guardrails and would have an engineer on the field who would specify exactly what they wanted. Jonathan identified plans for the removal and reinstallation of guardrails in Rockland County, at Stony Point. He described these plans as detailing where the guardrail was to be placed. Hubbell was the contractor on said project and it involved Route 9W. Based on Jonathan's experience, DOT would maintain and repair the guardrails once installed.
Defendants submit unsworn and uncertified accident and reconstruction reports memorializing the accident herein. Said reports indicate that the accident herein occurred on August 29, 2001 at approximately 12:55PM on Route 9W Stony Point.
Defendants submit an unsworn and uncertified copy of guardrail contract RC 46-95 from the State of New York Department of Public Works Division of Construction. Said contract states was for the removal of existing guide rail and for the erection of cable guard rails on a Highland Lake-Tompkins Cove. O.W. Hubbell was the contractor. The contract specified where the guardrails were to be installed.
Defendants submit a portion of a deposition transcript for Philip Crocker, who stated that in installing guardrails he would rely on the standards contained in the highway design manual, also known as the State of New York and American Association of State Highway Officials (AASHO).
In opposition to the motion herein, plaintiff submits an affidavit from Joseph Champagne (Champagne), a professional engineer, who states, in pertinent part, as follows. After being retained to evaluate this case, he reviewed the accident and reconstruction reports of the New York State Police, he reviewed plaintiff's deposition transcript, and he personally visited the scene of the accident herein. Plaintiff's vehicle left the roadway and entered a gap in the guardrails approximately 198 feet long. The cable guardrails in between which plaintiff's car left the roadway were installed by defendants in 1946. The project, that of installing guardrails, was carried out according to an initial plan prepared by the New York State Department of Public Works. The project called for the removal of existing timber guardrails and for their replacement with cable guardrails. The plan set out the precise locations said rails were to be placed along the roadway. Defendants followed the State's plans without regard to standards in effect at the time. The failure to place guardrails at the location herein, which abutted a 200 foot drop down an embankment, was a flagrant violation of guidelines and standards for cable guardrail installation as promulgated by AASHO, which provides that guardrails be used at points of extreme danger. Points of extreme danger are "fills over 6 feet in height at locations where topographic or other conditions such as sharp change in alignment, force a material reduction is speed." The location of the within accident required a guardrail since it had a fill height of 200 feet and at that location Route 9W turned sharply left thereby mandating a material reduction in speed. Defendants were or should have been aware that the installation plan constituted a clear and patent violation of the AASHO standards and should have rejected the plan as patently defective. Defendants should have advised the State that a guardrail was needed at this location and had they done so the within accident would not have occurred.
Plaintiff also submits a copy os several unsworn and uncertified photographs depicting the scene of the within accident and a copy of AASHO guidelines. Said guidelines state much of what Champagne described within his affidavit and in addition state that "[t]he use of a guardrail is advised at points of extreme danger."
The Law and Standard on Summary Judgment
The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). There is no requirement that the proof for said motion be submitted in affidavit form, rather, the requirement is that the evidence proffered be in admissible form. Muniz v. Bacchus, 282 AD2d 387 (1st Dept. 2001). Once movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact. Zuckerman v. City of New York, 49 NY2d 557 (1980). The burden, however, always remains where it began, with the movant on the issue. Hence, "if the evidence on the issue is evenly balanced, the party that bears the burden must lose." Director Office of Workers Compensation Programs v. Greenwich Collieris, 512 U.S. 267 (1994); 300 East 34th Street Co. V. Habeeb, 248 AD2d 50 (1st Dept. 1997).
It is worth noting, however, that while the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. On this issue the Court of Appeals has stated [t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing summary judgment' in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact.' Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case. (Internal citations omitted).
Friends of Animals v. Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067-1068 (1979). Thus, while evidence inadmissible when the motion is made and inadmissible when the case is tried, is insufficient to raise an issue of a fact precluding summary judgment; inadmissible evidence, whose inadmissability has been excused and which may likely be admissible at trial, may be considered. Phillips v. Joseph Kantor Company, 31 NY2d 307 (1972). In Phllips, for example, the court discussed that in lieu of affidavits from actual witnesses, detailing the substance of their testimony, affidavits listing witnesses' names, the substance of their testimony, and how said witnesses acquired their knowledge, could be considered and could raise an issue of fact sufficient to defeat summary judgment. Id. Similarly, in Zuckerman v. City of New York, 49 NY2d 557 (1980), the court discounted an attorney affirmation as speculative, in that said attorney lacked no personal knowledge of the facts he was proffering. Id. The court, however, in recognizing that inadmissible evidence could be used to preclude summary judgment, stated that if said attorney had personal knowledge of a witnesses' testimony and that witnesses' testimony created an issue of fact, said affirmation would suffice to defeat summary judgment. Id.; See, Indig v. Finkelstein, 23 NY2d 728 (1968); Graso v. Angerami, 79 NY2d 813 (1991).
When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v. Talman, 278 AD2d 811 (4th Dept. 2000):
Supreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint (see, Mickelson v. Babcok, 190 AD2d 1037, 593 NYS2d 657; see generally, Black v. Chittenden, 69 NY2d 665, 511 NYS2d 833, 503 NE2d 1370; Capelin Assocs. v. Globe Mfg. Corp., 34 NY2d 338, 34, 1357 NYS2d 478, 313 NE2d 776). Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial(see, Schoen v. Rochester Gas Elec., 242 AD2d 928, 665 NYS2d 372; Mickelson v. Babcock, supra). See also, Yaziciyan v. Blancato, 267 AD2d 152 (1st Dept. 1999); Perez v. Bronx Park Associates, 285 AD2d 402 (1st Dept. 2001); Glick Dullock v. Tri-Pac Export Corp., 22 NY2d 439 (1968); Singh v. Kolcaj Realty Corp., 283 AD2d 350 (1st Dept. 2001).
Accordingly, the Court's function when determining a motion for summary judgment is issue finding and not issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978). When the existence of an issue of fact is even debatable, summary judgment should be denied. Stone v. Goodson, 8 NY2d 167 (1960). It is well established that inadmissable hearsay is insufficient to raise any triable issues of fact sufficient to defeat summary judgment. Schwartz v. Nevatel Communications Corp., 778 NY2d 308 (2nd Dept. 2004); Zuckerman v. City of New York, 49 NY2d 557 (1980).
Self serving affidavits, meaning those which contradict previous deposition testimony, will not be considered by the Court in deciding summary judgment and cannot raise a triable issue of fact sufficient to defeat summary judgment. Lupinsky v. Windham Construction Corp., 293 AD2d 317 (1st Dept 2002); Joe v. Orbit Industries, Ltd., 269 AD2d 121 (1st Dept. 2000); Kistoo v. City of New York, 195 AD2d 403 (1st Dept. 1993).
A defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively, with evidence demonstrating the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof. Mondello v. DiStefano, 16 AD3d 637 (2nd Dept. 2005); Peskin v. New York City Transit Authority, 304 AD2d 634 (2nd Dept. 2003).
Common Law Negligence
Absent a duty of care to the person injured, a party cannot be held liable in negligence. Palsgraf v. Long Island R.R. Co., 248 NY 339 (1928). In cases where there is a duty and that duty is breached, a party is held to have acted negligently. To impose common-law negligence, the tort, the duty breached, must be the proximate cause of the accident. Misirlakis v. East Coast Entertainment Props., 297 AD2d 312 (2nd Dept. 2002).
It is well settled, that a contractor hired to perform work is generally not liable in tort or for breach of contract for injuries sustained by a third party. Church v. Callanan Industries, Inc., 99 NY2d 104 (2002); Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136 (2002); Moch v. Rensselaer Water Co., 247 NY 160 (1928); Bugiada v. Iko, 274 AD2d 368 (2nd Dept. 2000). This is because, contractors are generally hired to perform work pursuant to contract and "[u]nder our decisional law a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party." Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136, 139 (2002). When there is a breach, such contractors are generally only liable to the person who hired them, the promisee. However, they are not liable to third parties for any injuries resulting from a breach of their contractual obligation. Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136 (2002). Consequently, if a contractor is to be held liable for injury to a third-party, occasioned by their work, one of three scenarios must exist. First, a contractor is liable for injury to a third-party ifthe putative [contractor] has advanced to such a point as to have launched a force or instrument of harm, or has stopped where inaction is at most a refusal to become an instrument for good.
Id. at 139, quoting, Moch v. Rensselaer Water Co., 247 NY 160, 168 (1928). Stated differently, a contractor is liable to an injured third-party when said contractor causes or creates the condition alleged to have caused injury. Id.; Church v. Callanan Industries, Inc., 99 NY2d 104 (2002). Second, a contractor is responsible for a third-party's injury when the third-party detrimentally relies on the contractor's continued performance and the contractor's failure to perform, positively and actively, causes injury. Church v. Callanan Industries, Inc., 99 NY2d 104 (2002); Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136 (2002); Eaves Brooks Costume Company, Inc. v. Y.B.H. Realty Corp., 76 NY2d 220 (1990); Bugiada v. Iko, 274 AD2d 368 (2nd Dept. 2000). Lastly, when the contract is comprehensive and exclusive as to maintenance, so that due to its broadness the contractor displaces and in fact assumes the owner or possessor's duty to safely maintain, said contractor is liable to an injured third-party resulting from a breach of the services undertaken. Church v. Callanan Industries, Inc., 99 NY2d 104 (2002); Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136 (2002); Palka v. Servicemaster Management Services Corporation, 83 NY2d 579 (1994); Bugiada v. Iko, 274 AD2d 368 (2nd Dept. 2000).
In Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136 (2002), the Court concluded that a contractor was not liable to a third-party in a case involving a slip and fall on ice. In that case, plaintiff slipped and fell on an icy condition. Id. The owner of the premises therein had contracted with a contractor for the removal of ice and snow from its premises. Id. Plaintiff alleged that the snow had not been properly removed and that the contractor created the condition which caused her fall. Id. The Court granted the contractor summary judgment, finding, that by clearing snow as the contract required, the contractor had not created a dangerous condition, and as such was not liable under that exception to the general rule. Id. Further, the contractor was not liable under the exclusive control exception to the general rule, since under the contract between the contractor and the owner, the owner retained its duty to maintain and inspect the premises. Id.
In Church v. Callanan Industries, Inc., 99 NY2d 104 (2002), the court granted a subcontractor's motion for summary judgment, after concluding that it was not liable to the plaintiff for any breaches of its contract with the State, the entity who hired the contractor. In that action, the subcontractor was hired to install guide rails along a portion of the state thruway by a contractor who was initially hired by the state to install said guide rails. Id. Plaintiff was an occupant of a vehicle, whose driver fell asleep at the wheel, causing said vehicle to careen down an embankment accessible through an area which was slotted for guide rail installation, but which the subcontractor had yet to begin work upon. Id. The court held that the subcontractor was not liable to the plaintiff under any of the exceptions cited above. Id. First, the Court held that the subcontractor's failure to install guide rails at the location of the accident therein, did not cause or create a dangerous condition, since the subcontractor's failure to install guide rails thereat did not make the area therein any more dangerous than it was without the guide rails. Id. At best, the omission failed to make the highway less safe. Id. Second, the Court found that there was no detrimental reliance by plaintiff upon the subcontractor's continued performance of its duties. Id. Lastly, the court concluded that the contract between the subcontractor and the State was not one whereby the contractor assumed all safety related obligations with regard to the installation of guide rails. Id. As such, the contract was not comprehensive and exclusive as to inspection and supervision and as such, the contractor did not displace or assume the owner or possessors duty to safely maintain the guide rails. Id.
It has also been held that a contractor may be liable to a third party when in performing the work he was hired to perform, said contractor follows plans which are "so apparently defective, that an ordinary builder of ordinary prudence would be put on notice that the work was dangerous and likely to cause injury." Ryan v. the Feeney and Sheehan Building Company, 239 NY 43, 46 (1929); Gee v. City of New York, 304 AD2d 615 (2nd Dept. 2003); Pioli v. Town of Kirkwood, 117 AD2d 954 (3rd Dept. 1986). Such exception imposes liability only if the defects were so glaring and out of the ordinary that they put the contractor on notice that the work he was performing by following the plans would cause injury. Id. The inquiry is one which focuses upon notice at the time the work was done and as such, that an expert examined the plans post construction and concluded that the plans were faulty, is insufficient to impose liability upon the contractor. Id. Further evidence that the person who hire the contractor, accepted the work, and performed inspections in connection therewith, precludes any third-party liability upon the contractor. Id. In this Court's view this last exception is actually an extension of the first exception described above, i.e., that a contractor is liable to a third party for conditions he causes and creates. This is because following blatantly defective plans where resultant injury is foreseeable is akin to causing and creating a dangerous condition.
Discussion
Defendants have established prima facie entitlement to summary judgment. The evidence submitted by defendants indicates that they were contractors hired to install guardrails along the area herein. The design plan was created by the State and defendants merely followed the State's plan. Defendants did not alter the State's plan and instead installed the guardrails were they were asked to do so. The State's plan did not require installation of guardrails at the location of the within accident. As such, it is clear that defendants were contractors and plaintiff was a third party, not subject to the contract. Since generally, a contractor is not liable to a third party in tort or for breach of contract defendants have established entitlement to summary judgment.
It bears noting that while many of the items submitted by defendants are in inadmissible form, such as the contract between defendants and the State, to the extent that these are the very items relied upon by plaintiff and his expert, and to the extent that the authenticity of these documents is unchallenged and in fact adopted and offered by plaintiff as true, they were considered by the Court in support of the within motion. The same is true of Jonathan's testimony as it relates to procedures utilized by Hubbell and the State in 1946. While Jonathan stated that he was unaware of said procedures, as they existed in 1946, he assumed that they were the same as they were in his experience since becoming employed with defendants. Much like the contents of the contract, Jonathan's testimony and its contents, as it relates to procedures, remains unchallenged and in fact was adopted and offered by plaintiff's expert as true.
Plaintiff's opposition fails to raise an issue of fact sufficient to preclude summary judgment. In fact, taking plaintiff's expert's opinions, with regards to defendants' duties and omissions as true, as a matter of law, defendants' bear no liability. Plaintiff's entire opposition rests upon Champagne's affidavit. Champagne's affidavit asserts that defendants were negligent in following the State's plan without suggesting changes. Changes, Champagne asserts, were mandated, since pursuant AASHO, the area herein required guardrails. This Champagne argues was something defendants should have been aware of and about which they should have notified the State.
Champagne's affidavit fails to establish that defendants as contractors, are liable to plaintiff as third party. Specifically, the evidence fails to demonstrate that any of the exceptions, normally giving rise to contractor liability, are present in the within action. First, there is no evidence that the defendants caused and created the condition herein. As discussed above, this Court is of the opinion that the omission argued by plaintiff. i.e., that defendants failed to erect a guardrail at the location herein or failed to apprise the State of the need for a guardrail at this location, is simply an extension of the cause and create exception discussed above. Moreover, much like in Church, by failing to erect a guardrail at the within location, it cannot be said that defendants created a dangerous condition, since while they did not make the location safer, they certainly did not make it more dangerous than it was when they first encountered it. Second, there is no evidence that the contract herein, between defendants and the State, was comprehensive and exclusive as to maintenance, so that due to its broadness the contractor displaced and assumed the State's duty to safely maintain the guardrail. The evidence demonstrates that the contract was limited to installing guardrails and that the State inspected the work and designated the placement of all guardrails. Lastly, there is no evidence that plaintiff detrimentally relied on the defendants' continued performance of the contract or any evidence that defendants failed to perform the contract, positively and actively. First and foremost, when this contract was performed in 1946, plaintiff who was 25 years old in 2001, was not alive, and therefore he could not have relied upon defendants' work. More importantly, the evidence demonstrates that defendants actually complied with all aspects of the contract and performed the same as contracted.
Assuming arguendo, that Ryan v. the Feeney and Sheehan Building Company, 239 NY 43, 46 (1929), is another and separate exception imputing liability upon a contractor rather than an extension of the cause and create exception already established by the case law, defendants are nevertheless not liable. Under Ryan, a contractor's liability stems from his choice to follow plans that are so obviously, and glaringly defective, that a reasonable contractor would not have followed the same and should; foresee injury if said plans are followed. In this case, Champagne's affidavit states that the plans were patently defective, to anyone with knowledge of AASHO. However, ASSHO, does not mandate guardrails at locations such as the one at issue but merely advises or recommends their use. Accordingly, the plan calling for an absence of guardrails at the location herein, to the extent that no regulations absolutely mandated the same, were not patently defective as argued by Champagne, since the very source he makes reference to as mandating guardrails does not actually mandate guardrails but merely recommends the same. Additionally, Champagne's affidavit fails to impute liability because while he opines that the plans were patently defective, he fails to opine that such a defect would have put the defendants on notice that the work was dangerous and likely to cause injury. Lastly, in this case, unlike Ryan, and its progeny, defendants did not install something that occasioned injury after following glaringly defective plans. Instead, defendants failed to install a guardrail where none ever existed. As such, this case is distinguishable from Ryan. It is hereby
ORDERED that the complaint and herein be dismissed with prejudice. It is further
ORDERED that defendants serve a copy of this Order with Notice of Entry upon all defendants within thirty (30) days hereof.
This constitutes this Court's decision and Order.