JAAA v. MAVO SYSTEMS, INC.

REPLY to Response to Motion re MOTION for Summary Judgment Reply Brief in Further Support of its MSJ

E.D. Pa.October 25, 2017

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA SEIF J AAA Plaintiff, CIVIL ACTION vs. 16-cv-2494-LDD MAYO SYSTEMS, INC., et al. Defendants DEFENDANT MAYO SYSTEMS, INC.'S (CORRECTLY NAMED "MAYO SYSTEMS SCAFFOLDING, INC.") REPLY BRIEF IN FURTHER SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT I. INTRODUCTION Plaintiff Seif Jaaa's ("Plaintiff) Response in Opposition to Defendant Mavo Systems, Inc.'s (correctly named "Mavo Systems Scaffolding, Inc.") ("Mavo") Motion for Summary Judgment raises no genuine issues of material fact precluding the grant of summary judgment in favor of Mavo as a matter of law. Plaintiff seeks to defeat summary judgment by relying upon evidence that Mavo corrected the allegedly defective condition after the incident - - evidence that is wholly inadmissible as a subsequent remedial measure. Without that, Plaintiff is unable to set forth any evidence to establish that Mavo created the allegedly defective condition or was otherwise negligent in its installation of the scaffolding. This is further supported by Plaintiffs repeated reference to the fact that Covanta, not Mavo, caused Plaintiffs alleged injuries. As a result, and for the reasons set forth in Mavo's Motion for Summary Judgment, which is incorporated by reference herein, Mavo respectfully requests that this Court grant its Motion for Summary Judgment, dismissing all claims and crossclaims asserted against it, with prejudice. 1 Case 2:16-cv-02494-PD Document 36 Filed 10/25/17 Page 1 of 8 II. LEGAL ARGUMENT A. Plaintiffs Assertion that Mavo Corrected the Allegedly Defective Scaffolding After the Incident is Inadmissible Evidence not Sufficient to Defeat Summary Judgment. Plaintiff repeatedly asserts in his Opposition that Mavo could have originally designed and built the subject scaffolding using an aluminum rather than a wood-top plank at the top of the stairs where Plaintiff allegedly fell. (Plaintiffs Opposition, pp. 9-10, 14-15, 21). Plaintiff makes this claim by relying upon the fact that, after the incident, Mavo used an aluminum plank to replace the wood-top plank at the top of the stairs. (Id.). However, this evidence is inadmissible evidence of subsequent remedial measures, which cannot be used to defeat summary judgment. It is well-established that, "[a]t the summary judgment stage, courts only consider material that would be admissible at trial." Wright v. City of Phila., 685 Fed. Appx. 142, 148 (3d Cir. 2017); see also Fed. R. Civ. Pro. 56(c); Gonzalez v. Sec 'y of Dep 't of Homeland Sec., 678 F.3d 254, 262 (3d Cir. 2012) ("Affidavits and declarations considered on summary judgment must set out facts that would be admissible in evidence."); Davis v. City of Phila., No. 10-2646, 2011 U.S. Dist. LEXIS 11375, at *3, n.l (E.D. Pa. Sept. 29, 2011) ("Evidence considered at summary judgment must be admissible or capable of being reduced to admissible evidence."). The Federal Rules of Evidence expressly preclude the introduction of evidence of subsequent remedial measures to prove a party's negligence or culpable conduct. See Fed. R. Evid. 407; see also Hogan v. City of Easton, No. 04-759, 2006 U.S. Dist. LEXIS 90235, at *24 (E.D. Pa. Dec. 13, 2006). Rule 407 provides that "[w]hen measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove ... culpable conduct." Wright, 685 Fed. Appx. At 149 (quoting Fed. R. 2 Case 2:16-cv-02494-PD Document 36 Filed 10/25/17 Page 2 of 8 Evid. 407). The Rule has been "consistently applied to exclude evidence of subsequent remedial measures taken by the party against whom the post-accident modification is offered." Sell v. Ingersoll-Rand Co., 136 Fed. Appx. 545, 546 (3d Cir. 2005). Under this guidance, courts in the Third Circuit have routinely refused to consider evidence of subsequent remedial measures at the summary judgment state. See, e.g., Wright, 685 Fed. Appx. At 148-150 (affirming summary judgment for defendant and finding trial court did not abuse its discretion in ruling that a memorandum issued three years after plaintiffs incident was inadmissible evidence of subsequent remedial measures); Davis, 2011 U.S. Dist. LEXIS 11375, at *3, n.l (refusing, at the summary judgment stage, to consider evidence of a policy issued after plaintiffs death as it was inadmissible under Rule 407); Hogan, 2006 U.S. Dist. LEXIS 90235, at *23-24 (finding reports dated after the incident were not admissible to defeat summary j udgment). In line with this well-established precedent, this Court should similarly exclude Plaintiffs reliance upon the fact that Mavo corrected the allegedly dangerous scaffolding after Plaintiffs incident. Under Rule 407, this evidence is classic subsequent remedial measure evidence that is inadmissible and cannot be considered for purposes of Plaintiff s attempt to defeat summary judgment by proving Mavo's negligence or culpable conduct. Without this, Plaintiffs claim that Mavo could have originally designed and built the subject scaffolding using an aluminum rather than a wood-top plank at the top of the stairs where Plaintiff allegedly fell is without support and should not be considered. 3 Case 2:16-cv-02494-PD Document 36 Filed 10/25/17 Page 3 of 8 B. Plaintiff Cannot Set Forth Any Evidence to Establish that Mavo Created the Alleged Tripping Hazard. Plaintiff's assertion that a 1.5 to 2 inch elevated scaffolding plank existed at the time of Plaintiffs alleged trip and fall is unavailing, as Plaintiff cannot set forth any evidence to establish that Mavo created this alleged tripping hazard. To the contrary, as set forth at length in Mavo's Motion for Summary Judgment, which is incorporated by reference herein, the uncontroverted evidence of record establishes that Mavo did not create the alleged tripping hazard - - the 1.5 to 2 inch elevated scaffolding. Plaintiff harps on the fact that Mavo's representatives testified that Mavo designed the scaffolding with a known elevated plank of half an inch. (Plaintiffs Opposition, pp. 8, 12, 21). Yet, an elevation of half an inch is not what caused Plaintiffs alleged fall. As Plaintiff admits in his opposition, Plaintiff tripped and fell on a 1.5 to 2 inch elevation. {Id., p. 7). Plaintiffs Opposition was Plaintiffs chance to set forth credible facts of record establishing that Mavo indeed created the 1.5 to 2 inch tripping hazard or otherwise knew about it prior to Plaintiffs fall, but Plaintiff has done neither. Thus, there is no evidence of record suggesting that Mavo created the alleged dangerous condition upon which Plaintiff fell. Plaintiff nevertheless doubles-down on this argument, asserting, under Section 385 of the Restatement (Second) of Torts, that, since Mavo created the dangerous condition on the Covanta property, it is liable for Plaintiffs accident and resulting injuries. (Plaintiffs Opposition, p. 20). Yet, even if Plaintiff could establish that Mavo created the allegedly dangerous condition, which he cannot, Plaintiff makes no showing, certainly not one to defeat summary judgment, establishing (a) that Mavo was aware of the allegedly dangerous condition, and (b) that the danger was unlikely to be discovered by Covanta. See Carlstrom v. Country Classics at Morgan Hill Cond. Ass'n, No. C-48-2012-5638, 2015 Pa. Dist. & Cnty. Dec. LEXIS 771, at *16 (Pa. 4 Case 2:16-cv-02494-PD Document 36 Filed 10/25/17 Page 4 of 8 2000) (explaining that, for purposes of finding liability pursuant to Section 385, a plaintiff must establish that the defendant created a dangerous condition, the defendant was aware of the danger, and the danger was unlikely to be discovered by the possessor of land or others entering upon it). As set forth at length in Mavo's Motion for Summary Judgment, Plaintiff cannot meet these three elements because there is no evidence of record, nor has Plaintiff put forth any in his Response, that the scaffolding as erected by Mavo was in the condition it was at the time of Plaintiffs incident or that Mavo was aware of any allegedly dangerous condition. In light of the foregoing, an analysis of whether the purported danger was unlikely to be discovered by the possessor of land, or others entering upon it, is unnecessary. Nevertheless, Plaintiff argues that Mavo is liable under Section 385 because Covanta, as the possessor of the land, never noticed any tripping hazard or elevation changes in the scaffold planking in the area where Plaintiff allegedly fell. At the outset, Mavo notes that an analysis of the latency of the alleged defect is unnecessary, as Plaintiff cannot establish the other elements necessary to prove a claim under Section 385. Nevertheless, for these purposes, Mavo submits that Plaintiffs argument that Mavo violated Section 385 because of an allegedly latent defect is, regardless, unavailing. Plaintiff cannot have it both ways. Plaintiff cannot argue that Mavo erected the scaffolding in a defective manner and knew that the scaffolding was defective as installed, while at the same time arguing that the dangerous condition was latent, or unlikely to be discovered by Covanta or others on the land. Plaintiff is essentially arguing that the dangerous condition was both open and obvious (to Mavo) and undiscoverable (to Covanta and Plaintiff). Such a conclusion is not called for by Section 385. As a result, Plaintiff cannot establish, as a matter of law, that Mavo was negligent under Section 385 and Mavo's Motion for Summary Judgment must be granted. 5 Case 2:16-cv-02494-PD Document 36 Filed 10/25/17 Page 5 of 8 C. As Plaintiffs Response Makes Clear, Covanta is Liable for Plaintiffs Alleged Injuries. The fact that Plaintiff cannot establish that Mavo owed Plaintiff a duty or breached any duty allegedly owed to Plaintiff is conflated by Plaintiffs repeated references throughout its response to Mavo's Motion for Summary Judgment that it was Covanta who acted negligently. (See Plaintiffs Opposition, pp. 10-12, 15-16). Specifically, Plaintiff asserts that Plaintiffs accident would not have occurred had Covanta properly inspected, identified and required Mavo to correct any allegedly hazardous condition. Plaintiff asserts, once Covanta took over control, possession and responsibility for the scaffolding, it had several opportunities, including during numerous inspections, to identify and correct the allegedly dangerous condition, yet failed to do so. Clearly, Plaintiffs claims should be directed towards the proper defendant in this case - Covanta. III. CONCLUSION In light of the foregoing, Plaintiff has not raised any genuine issue of material fact warranting a denial of summary judgment in favor of Mavo as a matter of law. Accordingly, and for the reasons set forth at length in Mavo's Motion for Summary Judgment, which is incorporated by reference herein, Mavo respectfully requests that this Court grant its Motion for Summary Judgment, dismissing all claims and crossclaims against Mavo, with prejudice. 6 Case 2:16-cv-02494-PD Document 36 Filed 10/25/17 Page 6 of 8 COZEN O'CONNOR /s/Josh M. Greenbaum Josh M. Greenbaum E-mail:jgreenbaum@cozen.com Calli J. Padilla E-mail:cpadilla@cozen.com One Liberty Place 1650 Market Street, Suite 2800 Philadelphia, PA 19103 Telephone: 215.665.2788 Attorneys for Mavo Systems, Inc. (correctly named "Mavo Systems Scaffolding, Inc. ") Dated: October 25,2017 7 Case 2:16-cv-02494-PD Document 36 Filed 10/25/17 Page 7 of 8 CERTIFICATE OF SERVICE I, Josh M. Greenbaum, hereby certify that on the 25th day of October, 2017, I served a copy of the foregoing Reply Brief in Support of Motion for Summary Judgment on the following via ECF: Louis Silverman, Esq. John Trotman Jr., Esq. Silverman Trotman & Schneider, LLC 1500 Market Street, Suite 4060 Centre Square - West Tower Philadelphia, PA 19102 Attorneys for Plaintiff, SeifJaaa Benjamin E. Gordon, Esq. Stradley Ronon Stevens & Young, LLP 2005 Market Street, Suite 2600 Philadelphia, PA 19103 Attorneys for Defendants Covanta Energy, LLC, et al. /s/ Josh M. Greenbaum Josh M. Greenbaum 1 Case 2:16-cv-02494-PD Document 36 Filed 10/25/17 Page 8 of 8