Opinion
00 CV 6765 (JG)
October 16, 2002
ALISA LEBENSOHN, Sherman Basichas, LLP, New York, NY, for Plaintiffs.
S. ALYSSA YOUNG, Leader Berkon LLP, New York, NY, for Defendant.
MEMORANDUM AND ORDER
Plaintiffs Alexsandr Yakubzon ("Yakubzon") and his wife, Natalya Yakubzon, bring this action alleging that defendant E.I. du Pont de Nemours and Company ("Duponf") was negligent in its maintenance of one of its railcars and thus caused injury to Yakubzon. Dupont has moved for summary judgment. For the reasons set forth below, the motion is granted.
The plaintiffs incorrectly sued the defendant as DuPont Corporation.
BACKGROUND
The following facts are drawn from defendant's Rule 56.1 Statement and the exhibits to the affidavit of defendant's attorney. Plaintiffs' Rule 56.1 Statement consists almost exclusively of conclusions of law, as opposed to statements of fact. Plaintiffs did not dispute any of the facts stated here in their brief in opposition to this motion.
In September of 1999, Yakubzon was employed as a "loader" by Matlack Systems, Inc. ("Matlack"), a freight transportation company in Elizabeth, New Jersey. Matlack operated railcars owned by Dupont. As a loader, it was Yakubzon's job to move railcars along a single track to a loading station. There, the contents of the railcars would be transferred to a tanker truck for delivery.
On September 28, 1999, Yakubzon suffered injury to his foot when he was forced to jump from a moving railcar (the "Railcar"). In order to move the Railcar to the loading station, he had uncoupled it from the car behind it and disengaged the hand brake. He then stood on the front platform of the Railcar as it traveled forward, his hands on the wheel that controlled the hand brake. When the car seemed to be gathering more speed than was normal, Yakubzon attempted to engage the brake but found he was unable to do so. Fearing that he would hit another railcar, Yakubzon jumped and fell to the ground, injuring his foot under the front wheel of the Railcar.
In July of 1999, before sending the Railcar to Matlack, Dupont put it in the repair shop at Rescar, Inc. ("Rescar"), for preventive maintenance, pursuant to Dupont's ten-year preventive maintenance cycle. As part of this maintenance program, an inspection of the safety appliances, including the brake system, was performed. A certificate of inspection provided to Dupont shows that Rescar inspected the Railcar's hand brake at this time. Nothing in the maintenance records indicates that any problem with the hand brake was uncovered during that inspection.
After the maintenance inspection, the Railcar was received by Dupont at its Sabine River facility in Texas on July 23, 1999. It was then sent empty to another Dupont site in Bloomington, Texas. From Texas, it carried chemicals to Richmond, Virginia, and was shipped back to the plant in Bloomington on August 24, 1999. On September 10, 1999, the Railcar was sent to Matlack in New Jersey. Pursuant to Dupont's regular practice, the Railcar was subject to visual inspection each time it left a Dupont facility. None of these inspections revealed any problem with the Railcar's hand brake. The Railcar was then out of Dupont's custody until September 30, 1999.
B. Procedural History
The plaintiffs originally commenced this action in the Supreme Court of the State of New York, Richmond County, on September 28, 2000. On November 13, 2000, Dupont removed the case to this court on the basis of diversity jurisdiction. Dupont now moves for summary judgment.
DISCUSSION
A. The Standard for Summary Judgment
Summary judgment must be granted where "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." Fed.R.Civ.P. 56(c). In determining whether material facts are in dispute, all ambiguities must be resolved and all reasonable inferences drawn in favor of the non-moving party. See Castle Rock Entm't, Inc. v. Carol Publ'g Group, 150 F.3d 132, 137 (2d Cir. 1998). The initial burden is upon the moving party to demonstrate the absence of any genuine issues of material fact. See Adams v. Department of Juvenile Justice, 143 F.3d 61, 65 (2d Cir. 1998). "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. In the language of the Rule, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial."Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citations and internal quotation marks omitted). The non-moving party cannot survive a properly supported motion for summary judgment by resting on the pleadings "without offering `any significant probative evidence tending to support the complaint.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 290 (1968)).
B. The Negligence Claim
Under New York law, a plaintiff must demonstrate three elements to establish a claim of negligence: (1) the defendant owed a duty to the plaintiff; (2) the defendant breached that duty; and (3) the defendant's breach was the proximate cause of plaintiff's injury. See Solomon v. City of New York, 66 N.Y.2d 1026, 1027 (1985). Additionally, the plaintiff must prove that the defendant created the defect or had actual or constructive notice of the allegedly dangerous condition which caused the injury. See Van Skyrock v. Burlington Northern-Sante Fe Co., 697 N.Y.S.2d 145, 146 (2d Dep't 1999). Actual notice requires a defendant to have created the condition or to have been aware of it prior to the incident. See Pianforini v. Kelties Bum Steer, 685 N.Y.S.2d 804, 805 (2nd Dep't 1999). "To 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." Hammond-Warner v. United States, 797 F. Supp. 207, 211 (E.D.N.Y. 1992) (quoting Gordon v. American Museum of Natural History, 501 N.Y.S.2d 646, 647 (1st Dep't 1992)).
It may well be that New Jersey substantive law governs this case because the accident occurred there. However, I apply New York law with the consent of the parties, who agreed at the oral argument that there are no meaningful differences between the law of the two states as it bears on this case.
The plaintiffs in this case have failed to present any evidence showing that Dupont had notice, either actual or constructive, of the allegedly defective hand brake. Although Dupont has a duty to "exercise ordinary care to provide a reasonably safe [rail]car[,] the company is liable only for such defects as might have been discovered by reasonable care in inspection." Bierzynski v. New York Cent. R.R., 297 N.Y.S.2d 457, 460 (4th Dep't 1969). The plaintiffs argue that Dupont had constructive notice because "reasonable" inspection would have revealed the hand brake's alleged defect. (Pl.'s Opp'n Br. at 15.) However, the plaintiffs offer no evidence in support of this argument. There is nothing to suggest that the visual inspections of the Railcar by Dupont as part of its regular practice were unreasonable. Furthermore, plaintiffs offer no evidence that suggests that the defect was visible at the time of the inspections or that an inspection beyond what Dupont performed would have revealed the defect. Indeed, given the fact that the hand brake functioned properly immediately before the accident, according to Yakubzon's own deposition testimony, it seems unlikely that an inspection would have revealed any defect. Accordingly, plaintiffs have failed to raise a triable issue of fact with respect to whether Dupont had notice of the alleged defect. See Deans v. CSX Transp., Inc., 152 F.3d 326, 330 (4th Cir. 1998) (affirming summary judgment for the defendant where there was no evidence that defendants had either constructive or actual notice of a hand brake defect). Moreover, the Yakubzons have also failed to produce evidence sufficient to create a genuine issue of fact as to whether Dupont breached its duty of care.
CONCLUSION
For the reasons set forth above, Dupont's motion for summary judgment is granted. The Clerk is informed that this order closes the case.