Opinion
00-CV-0172E(Sc)
June 6, 2002
MEMORANDUM and ORDER
Plaintiff Charles Tedesco ("Tedesco") brings this action to recover damages for personal injuries sustained when he allegedly fell on "black ice" at a railroad yard in Cheektowaga, N.Y. (the "Railroad Yard") owned and operated by the defendants (hereinafter collectively "Norfolk"). Presently before this Court is Norfolk's motion for summary judgment of dismissal. For the reasons stated herein, such motion will be granted.
Inasmuch as the parties have referred to the defendants as a single entity "Norfolk," the Court will do so as well.
Tedesco's wife, Laurie, also brings claims against Norfolk for loss of consortium and services. Her claims are derivative of her husband's and thus will be dismissed as well. Unless otherwise indicated, all references to "plaintiff" or "Tedesco" are to Charles.
Tedesco was employed by Commercial Carriers, Inc. ("Carriers") as a commercial driver responsible for picking up vehicles delivered by train to the Railroad Yard and redelivering them to car dealers throughout the northeast. Pl's Dep. at 7, 15-16. While working on the morning of December 9, 1996, Tedesco "surveyed" the Railroad Yard and noticed "scattered ice" but did not report it to either Norfolk or Carriers. Id. at 34-35, 39-40, 55. Tedesco returned to the Railroad Yard to load his truck at approximately 4:00 or 4:30 p.m. while it was still light, id. at 40, although it became dark at around 4:41 p.m. See Tedesco's Affidavit dated Oct. 3, 2001, at 617 ("Pl's Aff."). At approximately 5:45 p.m. that same day, while loading cars onto his truck Tedesco allegedly fell on black ice located in the area where he was working. Pl's Dep. at 31-35, 48, 54, 71-72. Tedesco fell on the black ice in the dark after having loaded five vehicles onto his truck and while in the process of removing and replacing jump-skids from his truck. Id. at 57-66. In using the jump-skids Tedesco walked around both sides of the truck — but, because it was dark, he did not observe any black ice. Id. at 66-67, 70. Although Tedesco testified that he had seen "scattered ice" and "small patches of ice" and concluded that "it was slippery" in the Railroad Yard — id. at 38, 51-52, — he had not seen any black ice during his daylight inspection of the area where he was to work — an inspection that he was specifically trained to perform. Id. at 76-77, 144-145, 149. The area where Tedesco was working was in the line-of-sight of Rick Joyner, Tedesco's co-worker, who was in the adjoining loading bay. Id. at 72-73. No snow had fallen that day and there was no snow or accumulation of snow on the ground at the Railroad Yard, Tedesco's home or at Carriers' place of business. Id. at 37, 51.
To the extent that plaintiffs have not controverted material facts as set forth in defendant's Statement Of Undisputed Facts Pursuant To Local Rule 56 ("Def's Statement"), such material facts will be deemed admitted. LRCvP 56. Accordingly, plaintiffs are deemed to have admitted, inter alia, that Tedesco noticed "scattered ice" but did not report such to Norfolk. Def's Statement, at 67.
A jump-skid is "a device to get from the tractor to the trailer to put a vehicle behind the cab. *** You have to drive through the trailer to get to the tractor and then you have to use the jump-skids to get across between the two points." Pl's Dep. at 61-63.
It should be noted that Tedesco's Affidavit adds new allegations, some of which contradict his previous deposition testimony. However these departures from and additions to Tedesco's deposition testimony fail to create a genuine issue of material fact because "factual allegations that might otherwise defeat a motion for summary judgment will not be permitted to do so when they are made for the first time in the plaintiff's affidavit opposing summary judgment and that affidavit contradicts [affiant's] own prior deposition testimony." See Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001). Accordingly, this Court need not consider Tedesco's Affidavit in ruling on Norfolk's motion for summary judgment. Certain allegations raised in Tedesco's Affidavit are nonetheless addressed, although such consideration does not alter this Court's conclusion that summary judgment is to be properly awarded to Norfolk.
Rule 56(c) of the Federal Rules of Civil Procedure ("FRCvP") states that summary judgment may be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In other words, after discovery and upon a motion, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., at 322. Summary judgment is thus appropriate where there is "no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Tedesco's brief primarily cites state cases construing summary judgment under section 3212 of New York's Civil Procedure Law and Rules ("CPLR"), which does not provide the relevant summary judgment standard for federal court, regardless of where the action was filed. See Miller v. Steloff, 686 F. Supp. 91, 92 fn. 1 (S.D.N.Y. 1988) (noting that, in an action removed to federal court, "while the substantive New York laws will be applied, it is pursuant to the standards governing [FRCvP 56] that the motion [for summary judgment] may or may not be granted."). Indeed, it is elementary that in diversity actions state substantive law is applicable whereas federal procedural law governs. See Yeshiva Chofetz Chaim Radin, Inc. v. Village, 98 F. Supp.2d 347, 359-360 (S.D.N.Y. 2000) ("Even in a diversity action addressing only state claims, the Supreme Court has held that when there is a conflict between federal and state law, `federal courts are to apply state "substantive" law and federal "procedural" law. . . . When a situation is covered by one of the Federal Rules, . . . the court has been instructed to apply the Federal Rule,' unless the party opposing application of the Rule can demonstrate that the Federal Rule in question `transgresses . . . the terms of the [Rules] Enabling Act or constitutional restrictions.'") (quoting Hanna v. Plumer, 380 U.S. 460, 471 (1965)). The standard for summary judgment is procedural in nature and is thus governed by FRCvP 56(c). Id. at 360 (declining to apply CPLR 3212 because the "standards for granting summary judgment motions in the federal courts are clearly established in FRCP Rule 56 and federal case law"); Rowe v. Wal-Mart Stores, Inc., 11 F. Supp.2d 265, 266 (W.D.N.Y. 1998) (applying FRCvP 56 in a diversity action as well as New York law governing negligence in slip-and-fall cases). Consequently, much of the analysis in Tedesco's brief is irrelevant.
Furthermore, Tedesco contends that the affidavit of Norfolk's counsel carries no evidentiary weight. This is true. Nor does it need to. On a motion for summary judgment — where Tedesco will bear the burden of proof at trial — Norfolk may meet its burden at the summary judgment stage by merely showing that the evidence in the record is insufficient to carry Tedesco's burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). ("Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record that] demonstrate the absence of a genuine issue of material fact."); see also Sukhnanan v. Triborough Bridge Tunnel Auth., No. 93 CIV. 8583 (LAP), 1996 WL 39330, at *5 (S.D.N.Y. Feb. 1, 1996) ("The moving party *** does not bear the burden of disproving an essential element of the nonmoving party's claim.") (citing Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223-1224 (2d Cir. 1994) ("[T]he moving party may obtain summary judgment by showing that little or no evidence may be found in support of the nonmoving party's case.") (emphasis added). As discussed below, Norfolk has shown that the evidence in the record would be insufficient for Tedesco to carry his burden of proof at trial.
See footnote 5.
Of course, the moving party bears the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970)). If the moving party makes such a showing, the non-moving party must then come forward with evidence of specific facts sufficient to support a jury verdict in order to survive the summary judgment motion. Ibid.; FRCvP 56(e).
With respect to the first prong of Anderson, a genuine issue of material fact exists if the evidence in the record "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, at 248. Stated another way, there is "no genuine issue as to any material fact" where there is a "complete failure of proof concerning an essential element of the nonmoving party's case." Celotex, at 323. Under the second prong of Anderson, the disputed fact must be material, which is to say that it "might affect the outcome of the suit under the governing law ***." Anderson, at 248.
See also Anderson, at 252 ("The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.")
Furthermore, "[i]n 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) (citing Anderson, at 255). In other words, summary judgment is improper if there is any evidence in the record from which a reasonable inference could be drawn in favor of the non-moving party. Ibid. Nonetheless, mere conclusions, conjecture, unsubstantiated allegations or surmise on the part of the non-moving party are insufficient to defeat a well-grounded motion for summary judgment. Goenaga, at 18.
See footnote 7, supra.
Turning to the governing substantive law, a plaintiff in a negligence action must generally establish that the defendant owed the plaintiff a cognizable duty of care, that the defendant breached such duty and that the plaintiff suffered damage as a proximate result of the breach. Solomon v. City of New York, 66 N.Y.2d 1026, 1027 (1985). As the owner and operator of the Railroad Yard, Norfolk had a duty to maintain such premises in a reasonably safe condition. Basso v. Miller, 40 N.Y.2d 233, 241 (1976). To establish a prima facie case of negligence in a "slip-and-fall" action, a plaintiff must demonstrate either that the defendant created the condition which caused the accident or that the defendant had actual or constructive notice of such condition. Gordon v. Am. Museum of Natural History, 67 N.Y.2d 836, 837 (1986). As discussed below, nothing in the record indicates either that Norfolk created any black ice or that it had either actual or constructive notice of any black ice.
See also Goodwin v. Knolls at Stony Brook Homeowners' Assoc., 674 N.Y.S.2d 411, 412 (2d Dep't 1998) (same).
Tedesco contends that an award of summary judgment would be premature because he has yet to obtain discovery from Norfolk. Tedesco, however, fails to appreciate that the deadline for discovery was June 29, 2001 and that motions for summary judgment could not be served later than July 23, 2001. He failed to complete (or apparently conduct any) discovery by June 29, 2001. He did not seek an extension and such are not routinely granted by this Court in any event. Consequently, Norfolk's motion for summary judgment is not premature; indeed, it was made on the last day upon which such motions were allowed to be made pursuant to this Court's Scheduling Order Dated September 22, 2000. Accordingly, Tedesco's contention that granting summary judgment is premature is patently without merit.
First, assuming that black ice existed, Tedesco can point to no evidence that Norfolk created such hazard. The existence of ice in the Railroad Yard coupled with the bald allegation that Norfolk failed "to properly maintain the property by proper plowing, salting and sanding the premises" does not create a genuine issue of material fact as to whether Norfolk created black ice. See FRCvP 56(e) (requiring an opposing party to "set forth specific facts showing that there is a genuine issue for trial" where the moving party has shown that summary judgment is appropriate); Nolan v. United States, No. 99-CV-0269E(Sc), 2001 WL 392086, at *2 (W.D.N.Y. Mar. 21, 2001) ("The mere incantation that defendant utilized `insufficient snow and ice removal procedures' which created the dangerous condition creates no genuine issues of material fact where there is nothing in the record which supports such an assertion."). Accordingly, such unsubstantiated allegations cannot forfend the falling of the hammer of summary judgment. There is simply no evidence that Norfolk created any black ice.
See Pl's Aff., at 615.
See also Gam v. Pomona Prof. Condominium, 737 N.Y.S.2d 113, 114 (2d Dep't 2002) (finding that no issue of material fact is created where "plaintiff merely speculated that the defendants may have created the icy condition by negligently shoveling ***"); Goodwin — see footnote 10 —, at 412 ("since plaintiff admitted that he did not see the plowing of his driveway, his claim that negligent plowing created the ice upon which he slipped is nothing more than speculation and conjecture").
As noted above, this Court may disregard the allegations raised in Plaintiff's Affidavit. Brown, at 252. Tedesco alleges in his Affidavit that inadequate lighting caused and/or contributed to his injury. Pl's Aff. at 18. Even when considered, however, this does not show that Norfolk "created" the hazard posed by black ice because Tedesco's deposition testimony indicates that he inspected the area allegedly containing the black ice during the daylight hours, but failed to observe any such. Pl's Dep. at 76-77, 144-145, 149. Therefore, if Tedesco could not see black ice during the daylight while specifically conducting a safety inspection of the area around his truck where he was going to be working, the absence of lighting cannot be said to have "created" the hazard. Plaintiff further alleges that Norfolk failed to provide adequate salt. Id. at 35, 42-43, 52. This, however, does not show that Norfolk "created" the hazard where Tedesco testified that he did not see any black ice because, if Tedesco did not see such, then there is no genuine issue of material fact created by plaintiff's implication that he would have used salt to remedy an unperceived danger. Moreover, even if the salt was too hard for Tedesco to use, there is no evidence that he notified Norfolk of this condition. Id. at 35 (stating that he could not specifically recall whether or not he discussed the salt with Norfolk).
Second, Tedesco has provided no evidence that Norfolk had actual notice of black ice. Indeed, as pointed out by Norfolk, Tedesco's Interrogatory Responses concede that he has no basis upon which to allege that Norfolk had such notice. Pl's Int. Res. No. 10 ("As currently ascertained, Plaintiffs do not claim any knowledge of any actual notice to Defendants."). Furthermore, Tedesco's failure to notice black ice before his fall, despite his inspection of the area, undermines his contention that Norfolk had actual notice of such condition. Smith v. State, 688 N.Y.S.2d 774, 777 (3d Dep't 1999) ("Contentions alleging actual notice are belied by [the plaintiff's] admission that the black ice was not apparent to him prior to the fall ***").
Third, Tedesco fails to produce any evidence that Norfolk had constructive notice of black ice. Indeed, the New York Court of Appeals has held that, "[t]o constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it." Gordon, at 837 (emphasis added). Consequently, the "the plaintiff must present evidence of the length of time the condition existed prior to the alleged fall." Hammond-Warner v. United States, 797 F. Supp. 207, 211 (E.D.N.Y. 1992) (citing Gordon and granting defendant's motion for summary judgment because the plaintiff's "failure to offer evidence as to the length of time the substance was on the sidewalk requires the dismissal of her claim").
See also Quarles v. Columbia Sussex Corp., 997 F. Supp. 327, 332 (E.D.N.Y 1998) (same).
Tedesco, however, produced no evidence that any such black ice was visible and apparent. Indeed, Tedesco testified that he did not see any black ice despite his inspection of the area where he was to load his truck. Pl's Dep. at 76-77, 144-145, 149. If black ice went unnoticed during Tedesco's safety inspection, then it was not visible and apparent such that Norfolk could be charged with constructive knowledge thereof. Nolan, at *1-2 (finding no constructive notice where plaintiff, upon entering a post office, failed to observe ice upon which she fell when leaving the post office). Further, testimony that the black ice was "shiny" does not show that the condition was visible and apparent such that Norfolk may be charged with constructive notice.
Obviously ice itself is not black but, when situated vis-`-vis a black or very dark background, the ice is not visible except via a reflected light.
See also LaDuke v. Albany Motel Enters., 724 N.Y.S.2d 507, 509 (3d Dep't 2001) (finding no constructive notice of black ice where plaintiff acknowledged in her deposition that, "prior to the accident, she was unable to discern any dangerous condition, and she apparently slipped on a wet surface that she had not noticed"); Knolls — see footnote 10 —, at 412 (finding no constructive notice because ice was not visible and apparent where "plaintiff clearly testified during his examination before trial that he did not see the three foot by one-and-one-half foot patch of ice at the foot of his driveway when he emptied his mailbox earlier that day, nor did he see the ice before he fell while putting out the garbage ***"); Gam — see footnote 14 — at 114 (no constructive notice where plaintiff "did not see the patch of ice on the sidewalk"); Smith v. Smith, 735 N.Y.S.2d 630, 632 (3d Dep't 2001) (plaintiff's failure to see black ice until after fall supported finding that defendant lacked constructive notice); Golonka v. Saratoga Teen Recreation of Saratoga Springs Inc., 672 N.Y.S.2d 472 (3d Dep't 1998) (patron at beer-tasting event failed to show that the hosting organization had either created a dangerous condition in a parking lot or had actual or constructive notice of the condition where plaintiff admitted that he had slipped on "black ice" but presented no evidence to indicate how long the condition had existed).
Pl's Dep. at 149.
See Corsaro v. Stop Shop, Inc., 732 N.Y.S.2d 95, 96 (2d Dep't 2001) ("That the ice appeared brown and muddy, standing alone, is insufficient to raise an issue of fact as to constructive notice") (citations omitted); Wimbush v. City of Albany, 727 N.Y.S.2d 745, 747 (3d Dep't 2001) ("Plaintiff's deposition testimony that he slipped on a patch of bumpy, broken ice which he failed to see at any point before he fell — including on his way into the building earlier that evening — is insufficient to raise an issue of fact as to whether a visible condition existed for a sufficient period of time to put defendant on constructive notice") (citations omitted).
Furthermore, Tedesco fails to produce any evidence that black ice had been on the ground for any appreciable length of time prior to his fall such that Norfolk's employees should have, in the exercise of due care, discovered the condition and remedied it. Pl's Int. Res. No. 9(d) ("The length of time that the condition existed prior to the Plaintiff's fall is currently unascertained"); Simmons v. Metropolitan Life Ins. Co., 84 N.Y.2d 972, 973 (1994) (affirming dismissal of complaint where there was no evidence "as to the origin of the patch of ice on which plaintiff allegedly slipped and whether defendant had sufficient time to remedy the dangerous condition.").
Notably, there is no evidence in the record that any complaints were made about black ice that would support Tedesco's contention that Norfolk should be charged with constructive notice thereof. Pl's Dep. at 34-35, 39-40. In an effort to support such contention, plaintiff submits an affidavit by co-worker Ricky A. Joyner dated September 30, 2001 ("Joyner Aff."). Joyner states that he "complained about the condition of the vehicle loading area *** to the guard located at the entrance of the rail yard facility." Joyner Aff. at 612. Joyner's complaint is insufficient to charge Norfolk with constructive notice of black ice for two reasons. First, notice of a hazardous condition in the area where Joyner was working — i.e., an adjoining truck bay — is insufficient to charge Norfolk with constructive notice of black ice in the area where Tedesco was working. See Gordon, at 838 (finding that the existence of a similar dangerous condition (i.e., wax papers) on another portion of the steps where plaintiff fell on a different piece of wax paper was insufficient to charge the defendant with constructive notice of the piece of wax paper on which plaintiff slipped). Second, Joyner's complaint would only have provided Norfolk with a general awareness that a dangerous condition might be present in the Railroad Yard. As discussed below, such a general awareness is insufficient to charge Norfolk with constructive notice of black ice elsewhere.
See Taylor v. United States, 56 F. Supp.2d 271, 274 (N.D.N.Y. 1999) (dismissing complaint because plaintiff failed to establish that defendant had actual or constructive notice of the ice upon which plaintiff slipped and fell where, inter alia, there was no evidence of any complaints).
Indeed the facts in this case are even more compelling than were the facts in Gordon where the dangerous condition that Joyner noticed was in an area of the Railroad Yard that was separate from the area where Tedesco was working — to wit, an adjoining truck bay. Applying Gordon, plaintiff would have to provide evidence that Joyner complained about the patch of black ice upon which Tedesco fell. In other words, under Gordon, Norfolk could not be charged with constructive notice of black ice based on its having received complaints of ice in the adjoining truck bay where Mr. Joyner was working. But see Armstrong v. Ogden Allied Facility Mgmt. Corp., 722 N.Y.S.2d 503, 505 (1st Dep't 2001) ("a trier of facts could find constructive notice, based upon the similar hazardous condition that was known to have existed for at least two years elsewhere in the building."). To the extent that Armstrong is contrary to the New York Court of Appeals' ruling in Gordon, this Court follows Gordon.
In any event, Armstrong may be harmonized with Gordon. The hazardous condition in Armstrong existed inside a building — i.e., a contained environment over which a property owner may be expected to exercise a higher degree of diligence in discovering hazardous conditions such as the "metal clip protruding from the floor" in Armstrong. Id. at 504. In Gordon (and in the present case), however, the hazardous condition existed outdoors — i.e., in an environment that is more difficult to monitor and control. Moreover, the hazardous condition in Armstrong had existed for two years. Ibid.
A general awareness that some dangerous condition may be present is insufficient to constitute constructive notice. Gordon, at 838; Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 969 (1994). Accordingly, evidence that there was "scattered ice" throughout the Railroad Yard is insufficient to show that Norfolk had constructive notice of black ice. Rather, Tedesco must proffer "evidence establishing constructive notice of the particular condition that caused [his] fall," which he fails to do here. Rivera v. Nat'l RR. Passenger Corp., No. 90 Civ. 5201 (KMW), 1994 WL 512421, at *3 (S.D.N.Y. Sept. 19, 1994) (emphasis added) (plaintiff failed to show constructive notice where she only alleged that it was raining but failed to provide any evidence that "she or anyone else actually observed water or any other slippery substance on the escalator before her fall"). Plaintiff has produced no evidence showing that Norfolk had constructive notice of the particular condition that caused his fall to wit, black ice.
See also Gordon, at 838 ("nor [is] the fact that plaintiff observed other papers on another portion of the steps approximately 10 minutes before his fall legally sufficient to charge defendant with constructive notice of the paper [plaintiff] fell on").
Finally, a prior slip-and-fall at the Railroad Yard five years before plaintiff's slip-and-fall is insufficient to charge Norfolk with constructive notice of a particular patch of black ice on which Tedesco allegedly fell. Simmons, at 973 (affirming dismissal of slip-and-fall case because, "[a]lthough plaintiffs presented evidence that icy patches had been noticed weeks prior to the accident, no testimony was introduced that defendant was notified of these conditions.").
See Aff. of John Anderson dated Oct. 3, 2001.
Smith, at 821 ("Similarly unavailing are contentions alleging constructive notice due to *** proof that the walkway had been prone to icing following similar circumstances").
Accordingly, it is hereby ORDERED that defendants' motion for summary judgment is granted and that this case shall be closed.