Opinion
02-CV-0733E(Sc).
July 28, 2004
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Plaintiffs commenced this personal injury action September 20, 2002 against defendants in New York State Supreme Court for the County of Niagara. Defendants subsequently removed such to this Court on January 14, 2003 and now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCvP). For the reasons set forth below, defendants' motion will be granted.
The following facts are undisputed unless otherwise noted. On October 12, 1999 plaintiff Elaine Winegarden allegedly fell while she attempted to cross a section of railroad tracks ("the Sidetrack") during her work-shift at American Axle Manufacturing, Inc. ("American Axle"). The Sidetrack is located in the South Yard of American Axle's property located at 1001 East Delavan Ave. in Buffalo, N.Y., and extends from the Marshalling Building in a southerly direction. The Sidetrack connects with another set of tracks known as the Erie Running Track. The Erie Running Track is located on property that is adjacent to the east side of the South Yard and is owned and operated by one or more of the defendants. The properties are separated by a fence and a gate.
Such term as used hereinafter shall denote the relevant section of railroad tracks that are the subject of plaintiffs' claims. The sidetrack is adjacent to defendants' rail lines allowing them access to the Marshalling Building of American Axle Manufacturing, Inc. See Thoman Aff. Ex. A. (Map of the South Yard and the surrounding area).
Although none of the defendants owns the property where the Sidetrack is located, plaintiffs allege that the defendants were negligent in their ownership, maintenance, operation, management and control of such tracks. Compl. ¶ 17. Plaintiffs contend that the defendants exercised such control over the Sidetrack pursuant to a Sidetrack Agreement ("the Agreement") that had been entered into by the defendants' predecessors and American Axle's predecessor. The original parties to the Agreement were General Motors Corporation ("GMC") and Erie Railroad Company ("Erie"). See Pls.' Mem. of Law, Ex. A (Agreement). Pursuant to the Agreement, Erie was granted a right of way, or a license, allowing it to enter onto GMC's property to construct and operate the Sidetrack. Id. at 3-4. However, the Agreement also states that GMC "shall, at its own expense, maintain, repair and renew to the satisfaction of the Superintendent of the Railroad Company, the sidetrack" and shall be responsible for the "removal of ice and snow." Id. at 4. With regard to liability, excluding certain acts related to fire and clearance obstructions and hopper coverage, the Agreement provides that each party "shall be solely liable for all loss, damage or liability to persons and property arising from its own sole acts or omissions, including negligence, and shall indemnify and hold harmless the other party to this agreement for such loss." Id. at 7. The Agreement further provides that, if liability arises from joint or concurring acts or omissions, including negligence of both parties, the liability "shall be borne by them equally." Ibid. Regarding assignment and possible successors, the Agreement states:
Specifically, the Agreement pertinently provides:
"2. Right of Way; Licenses
"The Railroad Company [Erie] "shall have the right to enter upon the property of [GMC] for the purpose of constructing, maintaining, and operating the sidetrack." Pls.' Mem. of Law, Ex. A.
Pursuant to the Agreement, GMC assumed a duty to cover any hopper — a kind of receptacle over which the sidetrack was constructed — at all times when it was not being used.
"Neither party may assign or transfer any of the rights or privileges hereto without consent of the other. The rights, duties, and obligations of the respective parties hereto under this Agreement shall carry to and be binding upon their heirs, executors, administrators, lessees, successors, and assigns respectively." Id. at 8.
American Axle acquired GMC's property and the Sidetrack in 1994. Each defendant is purportedly linked to Erie through a series of real estate and business transactions. In 1976 Erie's properties were transferred to Consolidated Rail Corporation ("Consolidated") pursuant to the Regional Railroad Reorganization Act of 1973. See T.O.F.C., Inc. v. United States, 683 F.2d 389, 390 (Cl.Ct. 1982). Consolidated, a wholly-owned subsidiary of Conrail, Inc. ("Conrail"), subsequently transferred its property rights and interests in the Erie Running Track to New York Central Lines, LLC ("Central Lines"). Central Lines then made an agreement with CSX Transportation, Inc. ("CSXT") allowing it to operate its trains on Erie Running Track. In addition, CSXT and Norfolk Southern Railway Company, a nonparty, acquired certain Consolidated assets. Norfolk Southern Railway Company is a wholly owned subsidiary of defendant, Norfolk Southern Corporation ("Norfolk"), which also has equity in Conrail and Consolidated. CSXT is a wholly-owned subsidiary of CSX Corporation ("CSX"). Norfolk, CSX, and Conrail are all holding companies, which neither operate railroads nor own railroad property.
FRCvP 56(c) states that summary judgment "shall be rendered forthwith 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 a judgment as a matter of law." A genuine issue of fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether summary judgment is appropriate, this Court must draw all factual inferences in favor of the non-moving party. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970).
Nevertheless, the non-moving party must rebut the motion for summary judgment with more than conclusory allegations and general denials. FRCvP 56(e); see also Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) ("conclusory allegations, conjecture and speculation * * * are insufficient to create a genuine issue of fact"). Furthermore, 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. v. Catrett, 477 U.S. 317, 322 (1986).
Plaintiffs assert that the defendants owed plaintiff Elaine M. Winegarden a duty of care because they had been granted a right of way to enter onto the Sidetrack to perform maintenance and repairs pursuant to the Agreement. Plaintiffs contend that defendants breached such a duty by negligently maintaining and repairing the Sidetrack. In addition, plaintiffs contend that defendants breached their duty of care as abutting landowners.
In support of their summary judgment motion, defendants first argue that plaintiffs cannot establish a prima facie case of premises liability because they cannot show that any of the defendants owned, operated, maintained, managed or controlled the Sidetrack. Secondly, defendants assert that none of them received any property interests or rights as successors to the Agreement. Third, defendants contend that, assuming arguendo that the Agreement was binding between American Axle and the defendants, the Agreement explicitly assigned the duty to maintain and repair the Sidetrack to American Axle. Fourth, defendants assert that such a contractual agreement did not provide a basis for tort liability against the defendants. Finally, defendants contest plaintiffs' allegations that they owed plaintiff Elaine M. Winegarden a duty of care as abutting landowners.
Defendants also assert that Conrail, CSX and Norfolk are not liable as a matter of law because they are holding companies that do not operate railroads.
The Court will grant summary judgment to the defendants because (1) assuming arguendo that the Agreement was binding on Consolidated and the other defendants, as successors-in-interest or otherwise, the Agreement did not confer a duty upon the defendants to maintain the Sidetrack and (2) plaintiffs have failed to raise a triable issue of fact regarding defendants' negligence.
Thus, no discussion is required with respect to the parties' arguments regarding the issue of whether the Agreement is binding upon them.
It is well established under New York law that, before a defendant can be found liable for negligence, it must be determined that such defendant owed, and breached, a duty of care to the plaintiff. Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136, 138 (2002); Badou v. N.J. Transit Rail Operations, 633 N.Y.S.2d 530, 532 (2d Dep't 1995). The existence and scope of a duty is a question of law. Espinal, at 138. As the owner of the property at issue in this case, American Axle owed a duty to "exercise reasonable care under the circumstances" to prevent injury to persons on its property. Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 329 (1981). Plaintiffs' contention that the defendants also owed a duty of care to them because of the right of way that was granted to them under the Agreement is unavailing because (1) the Agreement explicitly placed the duty to maintain the Sidetrack on American Axle and (2) defendants' contractual obligations under the Agreement cannot provide the basis for their tort liability.
The Agreement pertinently provides that "[t]he Industry [GM or American Axle] shall, at its own expense maintain, repair and renew * * * the sidetrack." Thus, as expressly provided by the Agreement, the duty to maintain and repair the sidetrack belonged to GMC and, subsequently, American Axle. Further, absent three circumstances, "a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party." Espinal, at 138. The three circumstances in which a party to a contract who agrees to render services may have assumed a duty of care — and thus be potentially liable in tort — to third persons are: "(1) where the contracting party, in failing to exercise reasonable care in performance of his duties, `launches a force or instrument of harm', (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely." Id. at 140 (citations omitted). There is simply no evidence in the record that any of these circumstances are present here. Plaintiffs' theory of liability is simply circular and conjectural. In essence, plaintiffs argue that one or more of the defendants must have acted negligently because they utilized the Sidetrack, pursuant to their right of way, in moving their railroad cars but failed to use reasonable care in maintaining and repairing the Sidetrack. However, without a duty to maintain the property, defendants cannot be found liable for negligence. Plaintiffs have offered no credible evidence showing that any of the defendants owed a duty of care to maintain the Sidetrack.
Plaintiffs seem to argue that the defendants are considered owners or possessors of the Sidetrack pursuant to the right of way granted to their predecessor under the Agreement. As a result of these rights, plaintiffs argue that defendants assumed certain duties and responsibilities regarding the maintenance and repairs of the suspect tracks so as to prevent defective conditions from causing injuries to third-parties. See Pls.' Mem. of Law, at 3-4. However, as evinced by the express terms of the Agreement, Erie was merely given a license to enter onto GMC's property in order to perform certain functions. See Agreement, at 3-4 (section entitled "Right of Way; License"); see, e.g., Henry v. Malen, 692 N.Y.S.2d 841, 845 (3d Dep't 1999) (distinguishing an easement, which is an interest in real property, from a license, which implies no such interest, by, inter alia, the fact that a license is non-assignable and limited in duration); Willow Tex, Inc. v. Dimacopoulos, 68 N.Y.2d 963, 965 (1986) (noting that a license is characterized by its revocability); see also 49 N.Y. Jur.2d § 214 ("A license grants the licensee a revocable nonassignable privilege to do one or more acts upon the land of the licensor, without granting possession of any interest in the land"). The Agreement therefore neither gave Erie (or its successors) an ownership interest in the Sidetrack nor served to displace American Axle's duty of care as the owner of the property.
Moreover, the conjectural nature of plaintiffs' evidence regarding defendants' alleged breach mandates a finding of summary judgment for defendants with regard to plaintiffs' claim that is premised on the alleged negligence of defendants as abutting landowners. "[A]n owner or occupier of abutting property owes no duty to warn or protect others from a defective or dangerous condition on neighboring property unless the owner of the abutting property causes or contributes to that condition." Badou, at 531. Plaintiffs have not offered credible evidence that any defendant actually caused or contributed to the allegedly defective area around the Sidetrack. At most, plaintiff contends that defendants "presumably caused the defect through their 23 years of use without repair." Pls.' Mem. of Law, at 4. Such conjectural evidence is inadequate to raise a triable issue of fact that defendants caused or contributed to the alleged defective condition at issue. See Gipson v. Veley, 596 N.Y.S.2d 548, 548 (3rd Dep't 1993) (granting summary judgment to defendants because there was no evidence showing that they actually created or contributed to the dangerous condition that caused plaintiff's accident); see also Kerzer, at 400 ("conclusory allegations, conjecture and speculation * * * are insufficient to create a genuine issue of fact"). In sum, summary judgment must be granted to these defendants because it is undisputed that they owed no duty of care to plaintiffs and therefore, defendants are entitled to judgment as a matter of law.
To the extent that plaintiffs seek additional time to conduct discovery, such is denied. See Feb. 5, 2004 and Feb. 12, 2004 Affs. of Norton T. Lowe, Esq. Besides failing to provide sufficient reasons for this Court to extend the November 11, 2003 discovery deadline at such a late stage in the proceedings, plaintiffs have also failed to show that such discovery would be either relevant or justified pursuant to FRCvP56(f).
Finally, it is undisputed that Norfolk, CSX and Conrail ("the holding companies") are holding companies that neither own railroad properties nor operate railroads. As previously discussed, the holding companies are parent corporations of Norfolk Southern Railway Company, a non-party, CSXT and Consolidated Rail ("the subsidiaries"), respectively. In order for the holding companies to be liable in this case, plaintiffs must establish that the subsidiaries were "mere instrumentalit[ies]" of the holding companies and that the holding companies actually dominate their wholly owned subsidiaries such that the subsidiaries have "no existence of [their] own." Williams v. McAllister Bros., 534 F.2d 19, 21 (2d Cir. 1976). The plaintiffs produced no evidence showing such dominion, thereby providing another basis on which to grant summary judgment to such defendants.
Accordingly, it is hereby ORDERED that defendants' motion for summary judgment is granted and that the Clerk of this Court shall close this case.