Pilkington v. Tutor Perini Bldg. Corp.

DANIEL S. PILKINGTON, Plaintiff, v. TUTOR PERINI BUILDING CORP. and TUTOR PERINI CORPORATION, Defendants.

TUTOR PERINI BUILDING CORP. and TUTOR PERINI CORPORATION, Third-Party Plaintiffs, v. GILSTON ELECTRICAL CONTRACTING CORP. and HUDSON ELEVATOR GROUP, INC., Third-Party Defendants.

17cv00060 (DF)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

March 18, 2020

MEMORANDUM AND ORDER

DEBRA FREEMAN, UNITED STATES MAGISTRATE JUDGE:

In this personal-injury case, which is before this Court on consent under 28 U.S.C. § 636(c), plaintiff Daniel Pilkington ("Plaintiff") has asserted claims against defendants Tutor Perini Corporation ("TPC") and Tutor Perini Building Corp. ("TPBC") (collectively, the "Tutor Perini Companies") pursuant to New York Labor Law ("NYLL") §§ 200, 241(6) and for common-law negligence, for an injury sustained when Plaintiff allegedly tripped and fell at a construction worksite controlled by Tutor Perini. (Complaint, dated Sept. 13, 2016 ("Compl.") (Dkt. 1-1).) The Tutor Perini Companies, in turn, have asserted third-party claims against two TPC subcontractors, Gilston Electrical Contracting Corp. ("Gilston") and Hudson Elevator Group ("Hudson") (collectively, the "Subcontractors") for contractual and common-law indemnification and for breach of contract. Currently before this Court are four separate motions for summary judgment. As the parties' various motions are interrelated, the Court will address them all in this single Memorandum and Order, and, for the reasons discussed below, Plaintiff's motion for partial summary judgment (Dkt. 55) is granted; the Tutor Perini Companies' motion for summary judgment (Dkt. 60) is denied in its entirety; and the summary-judgment motions of the Subcontractors (Dkts. 49 and 64) are both granted in part and denied in part.

BACKGROUND¹

A. Factual Background

1. Plaintiff's Trip and Fall

Plaintiff's claims in this case relate to an injury he allegedly sustained on November 19, 2015, when he tripped and fell at a Brooklyn, New York, construction site, where he had been employed to work by third-party defendant Gilston, one of the construction project's electrical subcontractors. (Pl. 56.1 Stmt. ¶ 47; Gilston 56.1 Stmt. ¶ 5; see also Def. 56.1 Stmt. ¶ 1; Hudson 56.1 Stmt. ¶ 6.) The incident occurred when Plaintiff was exiting the premises via a pathway, accompanied by his coworker, Thomas Berghorn ("Berghorn") and six to eight other Gilston employees. (Pl. 56.1 Stmt. ¶¶ 43-50; Def. 56.1 Stmt. ¶¶ 5-7, 10; see also Hudson 56.1 Stmt. ¶¶ 9-16; Gilston 56.1 Stmt. ¶¶ 6-8.) It is undisputed that a group of workers and contractors were standing by the exit, and that there was debris - including four-by-four pieces of wood known as"dunnage" - on the pathway in front of the exit. (Pl. 56.1 Stmt. ¶¶ 51-53; Def. 56.1 Stmt. ¶¶ 11-12; see also Hudson 56.1 Stmt. ¶¶ 12-14.) The dunnage was protruding approximately two to three feet into the pathway from an adjacent area that was being used by third-party defendant Hudson, the Project's elevator subcontractor, to store its materials. (Pl. 56.1 ¶¶ 58, 60; Def. 56.1 ¶¶ 9-13; Hudson 56.1 Stmt. ¶¶ 9-11; see also Gilston 56.1 Stmt. ¶¶ 7-11.) It is undisputed that, as Plaintiff and the other employees maneuvered through the debris on the pathway, he tripped over the dunnage that was extending into the pathway. (Pl. 56.1 Stmt. ¶¶ 57-58, 60; Def. 56.1 Stmt. ¶¶ 12-13; see also Hudson 56.1 Stmt. ¶ 15; Gilston 56.1 Stmt. ¶ 8; Declaration in Support of Justin M. Reilly, Esq., dated Mar. 14, 2019, Ex. 13A ("Reilly Decl.") (Dkt. 57-13) at 66, 96 (Plaintiff testifying at deposition that he "had his feet together" when he tripped because "it was a crowded pathway" and that "I know I tripped over the dunnage in the pathway"); id. Ex. 12 (Declaration of Thomas Berghorn, dated Jan. 17, 2019 ("Berghorn Decl.") (Dkt. 57-12); Rex Decl. Exs. R-S.)² Plaintiff fell on his left knee, hip, and elbow, and, after complaining that his knee was hurting, he was helped to the Gilston trailer. (Pl. 56.1 ¶¶ 63, 67.)

Plaintiff brought his claims in this case against the Tutor Perini Companies, which, he contends, together served as the general contractor on the project. (See Compl.) In support of his motion, he not only asserts that the dunnage was in the pathway, creating a workplace hazard, but that the Tutor Perini Companies were aware of the hazard and failed to address it. (See Berghorn Decl. ¶¶ 21-23 (Berghorn asserting that he had attended meetings in which the general contractors had received complaints regarding the blocking of the pathway by debris, but that no action was taken to resolve those issues).)

2. The Construction Project at Issue, and the Roles of the Tutor Perini Companies

The construction project on which Plaintiff was working involved the construction of the New Academic Building School of Public Health at the State University of New York ("SUNY") Health Science Center at Brooklyn (the "Project"). (Pl. 56.1 Stmt. ¶ 1; Def. 56.1 Stmt. ¶¶ 1-2.) On August 24, 2012, the State University Construction Fund entered into an Agreement with TPC that provided for TPC to act as the general contractor for the Project. (Def. 56.1 Stmt. ¶ 2; Declaration of Beth Rex in Support of Defendants/Third-Party Plaintiffs Tutor Perini Building Corp.'s and Tutor Perini Corporation's Motion for Summary Judgment, dated Mar. 14, 2019 ("Rex Decl.") Ex. L.; see also Pl. 56.1 Stmt. ¶ 1; Hudson 56.1 Stmt. ¶ 7; Gilston 56.1 Stmt. ¶ 3.) TPC, through project superintendent Angelica Sepulveda ("Sepulveda"), "oversaw the work of the subcontractors" on the Project and "had overall control of the actual work site." (Pl. 56.1 Stmt. ¶¶ 5-10; see also Def. 56.1 Stmt. ¶ 15; Hudson 56.1 Stmt. ¶ 18; Gilston 56.1 Stmt. ¶¶ 9-11.)

At her deposition, however, Sepulveda gave somewhat confusing testimony regarding which of the Tutor Perini Companies was responsible for the Project. The daily reports from the worksite contained TPBC's name at the top, and not TPC's (Pl. 56.1 Stmt., Exs. 7-8; Pl. 56.1 Stmt. ¶¶ 81-83), and, at one point in her deposition, Sepulveda testified that her employer was TPBC (Def. 56.1 Stmt. Ex. P, at 9-10) and that she believed TPBC had been the general contractor for the Project (id., at 12). She amended that testimony, though, once she was shown the contract between TPC and SUNY (id. at 15-16), to which TPBC was not a signatory (Def. 56.1 Stmt. ¶ 16). At another point in her deposition, Sepulveda identified Keating Building Corporation ("Keating") as her employer, testifying that it was named on her paystubs. (Def. 56.1 Stmt., Ex. P, at 12-13.) It is not disputed by the parties that the Project was managed by Barry Gleason ("Gleason"), an employee of Keating (Def. 56.1 Stmt. ¶ 14), and Sepulveda suggested that Keating was owned by both TPC and TPBC (Def. 56.1 Stmt, Ex. P, at 12-13). No party has made clear to the Court the precise nature of the relationship between TPC and TPBC.

In her role as project superintendent, Sepulveda was responsible for directing the subcontractors on the locations in which to place their materials. (Pl. 56.1 Stmt. ¶¶ 14-15, 26-28; Def. 56.1 Stmt. ¶¶ 23, 25-26; Hudson 56.1 Stmt. ¶¶ 18, 20, 25; see also Gilston 56.1 Stmt. ¶¶ 10-11.) Sepulveda directed Hudson to use a specific location on the first floor, beside the elevator shafts, to store their materials, including elevator rails. (Pl. 56.1 Stmt. ¶¶ 26-28, 30-32; Def. 56.1 Stmt. ¶¶ 23, 25-26.)³ That area was adjacent to the pathway where Plaintiff trippedand fell. (Pl. 56.1 ¶¶ 58, 60; Def. 56.1 ¶¶ 9-13; Hudson 56.1 Stmt. ¶¶ 9-11; see also Gilston 56.1 Stmt. ¶¶ 7-11.) When elevator rails were delivered to the premises, they were stored on top of dunnage, which enabled easier lifting and prevented the rails from getting wet. (Pl. 56.1 Stmt. ¶¶ 35-36, 57; Def. 56.1 Stmt. ¶ 12; Hudson 56.1 Stmt. ¶ 15; Gilston 56.1 Stmt. ¶ 8.)

One of Sepulveda's duties as superintendent was to walk the site every day and, if she observed an unsafe condition, to have the condition corrected. (Def. 56.1 Stmt. ¶ 28; see also Hudson 56.1 Stmt. ¶¶ 23, 30; Gilston 56.1 Stmt. ¶ 13.) Sepulveda testified that she had not heard prior complaints regarding any debris on that pathway and knew of no prior instances of dunnage extending into the pathway. (Rex Decl. Ex. P at 54-56.)

3. The Hudson and Gilston Subcontracts

TPC entered into subcontracts with Hudson, as the sole provider of elevator work for the Project, and Gilston, as one provider for electrical work for the Project (Def. 56.1 Stmt. ¶¶ 3-4; Hudson 56.1 Stmt. ¶ 36; Gilston 56.1 Stmt. ¶ 17), and copies of both subcontracts have been placed before the Court (see Declaration of Lauren M. Solani in support of Third-Party Defendant Hudson Elevator Group, Inc.'s Motion for Summary Judgment, dated Mar. 14, 2019 ("Solani Decl.") (Dkt. 50) Ex. 31 (Dkt. 50-31) (the "Hudson Subcontract"), Third-Party Complaint, dated June 6, 2017, Ex. D (Dkt. 15-4) (the "Gilston Subcontract")⁴ (collectively, the "Subcontracts")).

The Subcontracts are, in relevant part, substantially similar. With respect to indemnification, each provides:

To the fullest extent permitted by law, Subcontractor agrees to indemnify, hold harmless and defend Contractor . . . and any agents or employees of any of them and such other parties included as "Indemnified Parties" . . . from and against any and all liability for loss, damage or expense for which the Indemnified Parties may be held liable by reason of injury (including death) to any person (including Subcontractor's employee) . . . arising out of or in any manner connected with the work to be performed for any of the Indemnified Parties . . . . Subcontractor's indemnity obligation under this Section 4.1 of the Subcontract specifically does not include the obligation to indemnify the Indemnified Parties for their own negligence, except to the extent permitted by law. [. . .] Subcontractor hereby expressly waives any provision of the applicable

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