DAVID R. HOMER, U.S. MAGISTRATE JUDGE
Plaintiff Christopher Labadia ("Labadia") brought this action under 42 U.S.C. § 1332 alleging in a single cause of action that the defendants were negligent in maintaining railcar LNAC 5832 and thus caused his injuries on June 18, 1998. Am. Compl. (Docket No. 10). Presently pending are defendants' motions for summary judgment and plaintiff's cross-motions for summary judgment pursuant to Fed.R.Civ.P. 56. Docket Nos. 44, 50, 57, 61, 71, 75, 81, 85. For the reasons that follow, the motion of defendant General Electric Railcar Services ("GE") for summary judgment is granted, the motions of defendants Stanislaus Food Products Company ("Stanislaus"), Consolidated Rail Corporation ("Conrail"), Burlington Northern Santa Fe Railway Company ("BNSF") and Modesto Empire Traction Company ("MET") for summary judgment are denied, and Labadia's cross-motions for summary judgment are denied.
I. Background
GE is the owner of railcar LNAC 5832. Ex. E (Byrne Dep.) at 81-82. In 1996, GE leased this railcar to MET, which then transferred the railcar to Stanislaus on June 8, 1998. Id. at 9; Ex. I (Beard Dep.) at 16. Stanislaus loaded the railcar with pizza sauce, checked that all doors operated properly and placed seals on both sets of doors. Ex. H (Valadez Dep.) at 32-40, 45. Stanislaus conducted an inspection of the railcar before and after loading the pizza sauce. Id. at 15. These inspections included checking the bars and locking mechanisms on the railcar doors. Id. at 7, 38-40. On June 9, 1998, MET received the railcar from Stanislaus and conducted a safety inspection before BNSF received the railcar. Ex. I at 31; Ex. J (Henderson Dep.) at 6-7. BNSF conducted a safety inspection before accepting the railcar from MET. Ex. J at 8-10, 12, 15. On June 14, 1998, BNSF delivered the railcar to Conrail, which also inspected the railcar prior to acceptance. Ex. K (Davis Dep.) at 8-9, 21-22. On June 17, 1998, Conrail delivered the railcar to Papa John's Foods. Ex. K at 9, 24.
"Ex." followed by a letter refers to the exhibits attached to Theresa J. Puleo's Affidavit. Docket No. 60.
On June 18, 1998, Labadia was working at Papa John's Foods in Schenectady, New York. Ex. D (Labadia Dep.) at 10. Labadia and his co-worker, Jeffrey Hayden, were preparing to unload the pizza sauce from the railcar. Id. at 82; Ex. H at 41. Two people were required to open the railcar door because there are two handles. Ex. D at 74, 88, 212, 223. Labadia and Hayden broke the seal off the door and opened the right door of the railcar. Id. at 87-88. When they moved to the left door, Labadia held the right handle and Hayden held the left handle. Id. at 224, 229. Both men pulled their handles, but the right handle did not move as normal. Id. at 89. Labadia then exerted additional force, felt the handle pop and fell back against the loading dock injuring his back. Id. at 89, 230. Conrail sent carman Kenneth Layman to Papa John's after Labadia's fall to open the railcar door. Ex. G (Layman Dep.) at 11-12. Layman determined that there was a defect in the top locking device on the rod attached to the left handle of the left door which prevented the left handle from moving and the door from opening. Id. at 9, 13-17, 27; Ex. F (Thompson Dep.) at 9. This action followed.
II. Discussion A. Summary Judgment Standard
Under Fed.R.Civ.P. 56(c), if "there is no genuine issue as to any material fact[,] . . . the moving party is entitled to judgment as a matter of law." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The moving party bears the burden of demonstrating that no genuine issue of material fact exists. Flanigan v. General Elec. Co., 242 F.3d 78, 83 (2d Cir. 2001). Once the moving party has come forward with sufficient evidence in support of the motion for summary judgment, the opposing party must "set forth specific facts showing that there is a genuine issue for trial" and cannot rest on "mere allegations or denials" of the facts asserted by the movant. Fed.R.Civ.P. 56(e); Irby v. New York City Transit Auth., 262 F.3d 412, 414 (2d Cir. 2001).
The trial court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. Grain Traders, Inc. v. Citibank, N.A., 160 F.3d 97, 100 (2d Cir. 1998); see also Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985). "Furthermore, the non-movant `will have his allegations taken as true, and will receive the benefit of the doubt when his assertions conflict with those of the movant.'" Samuels v. Mockry, 77 F.3d 34, 36 (2d Cir. 1996) (citations omitted). However, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
B. Defendants' Motions
Labadia conceded at oral argument that there was no evidence that GE was liable and the record fails to demonstrate any evidence raising any question of fact as to GE's liability. Accordingly, GE's motion for summary judgment here is granted.
The facts described below are presented in the light most favorable to Labadia as the non-movant on defendants' motions for summary judgment.See Ertman v. United States, 165 F.3d 204, 206 (2d Cir. 1999).
There is no question that subject-matter jurisdiction exists in this case through diversity of citizenship. 28 U.S.C. § 1332. When an action is based on diversity jurisdiction, a federal court must apply the substantive law of the state in which the district court is located and federal procedural law. See Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 416 (1996); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
Under New York law, a plaintiff must demonstrate three elements to establish a prima facie case of negligence: (1) the defendant owed a duty to the plaintiff, (2) the defendant breached the duty, and (3) the defendant's breach was the proximate cause of plaintiff's injury. Solomon v City of New York, 66 N.Y.2d 1026, 1027 (1985); see also Kampff v. Ulster Sanitation Inc., 280 A.D.2d 797 (3d Dep't 2001). Additionally, the plaintiff must prove that the defendants created the defect or had actual or constructive notice of the defect. Van Skyock v. Burlington Northern-Santa Fe Co., 265 A.D.2d 545, 546 (2d Dep't 1999).
1. Duty Breach of Duty
Whether a duty exists is a question of law for the court. See Palka v. Servicemaster Mgmt. Servs. Corp., 83 N.Y.2d 579, 585 (1994). Here, each defendant had a duty "`to exercise ordinary care to provide a reasonably safe car [and] is liable only for such defects as might have been discovered by reasonable care in inspection.'" Van Skyock, 265 A.D.2d at 546 (quoting Bierzynski v. New York Cent. R.R. Co., 31 A.D.2d 294, 297 (4th Dep't 1969)). Here, each defendant conducted a safety inspection of the railcar from the ground and each defendant failed to discover the defective door lock. Ex. H at 32-40, 45; Ex I at 31; Ex J at 8-10, 12, 15; Ex. K at 8-9, 21-22. There is evidence that the defective door lock could be seen from fifteen feet away while conducting a ground inspection. Ex. F at 19-20; Ex. J at 5-8, 11-15. Thus, Labadia has adduced evidence to raise a question of fact whether each defendant's failure to notice the defect was a breach of duty. Defendants' motions for summary judgment on this ground are denied.
2. Notice
In order to sustain liability, a plaintiff must establish that defendants' either created the defect or had actual or constructive notice of the defect. Van Skyock, 265 A.D.2d at 546. "Actual notice may be found where the defendant created the condition, or was in fact aware of its existence prior to the accident." Pianforini v. Kelties Bum Steer, 258 A.D.2d 634, 635 (2d Dep't 1999). "Constructive notice requires that a defect be visible and apparent for a reasonable length of time."Vergara v. Scripps Howard, Inc., 261 A.D.2d 302, 306 (1st Dep't 1999).
Viewing the evidence in the light most favorable to Labadia, there is sufficient evidence to raise questions of material fact regarding whether the defendants had actual or constructive notice of the defect on the railcar's door lock. There is evidence that defendant Stanislaus created the defect and thus had actual notice. Stanislaus loaded the pizza sauce onto the railcar with a forklift and then locked and sealed the doors. Ex. H at 29, 52-53. The damage to the door lock may have been caused by a forklift. Ex. G at 17; Ex. F at 26-27, 48; Ex. I at 34. Thus, a jury could infer that Stanislaus caused the damage and had actual notice. Defendant Stanislaus' motion for summary judgment on this ground is denied.
All defendants contend that the defect could not be seen from the ground during their individual safety inspections and, thus, they did not have constructive notice. Docket No. 66 at 2; Docket No. 73 at 8; Docket No. 83 at 6; Docket No. 92 at ¶ 6. However, there is evidence in the record that the defect could be seen from the ground by an inspector standing fifteen feet from the railcar. Ex. F at 19-20; Ex. J at 5-8, 11-15. As each defendant conducted their own safety inspection of the railcar from the ground, each defendant could have seen the defect. This suffices to present a question of fact as to whether there was constructive notice. Accordingly, the defendants' motions for summary judgment on this ground is denied.
3. Causation
Labadia contends that the defect in the door lock was a proximate cause of his injury. The defendants contend that Labadia's hands slipped off the handle, proximately causing his injuries.
"[L]iability will not attach [in a negligence action] unless a defendant's act or omission is the proximate cause of a plaintiff's injury." Tel Oil Co. Inc. v. City of Schenectady, 278 A.D.2d 571, 575 (3d Dep't 2000). It is the plaintiff's "burden to show that the defendants' conduct was a substantial causative factor in the sequence of events that led to [his] injury." Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 520 (1980); see also Dormena v. Wallace, 282 A.D.2d 425, 426 (2d Dep't 2001). If it is more probable than not that the defendant caused the injury-producing event to occur, proximate cause is established. Koester v. State, 90 A.D.2d 357, 361-62 (4th Dep't 1982).
Here, there is sufficient evidence to support Labadia's theory of proximate cause. It required two individuals turning both handles at the same time to open the door. Ex. D at 74, 88, 212, 223. The top door locking device on the left side controlled the operation of the left door. Ex. G at 14. Due to the defective top door lock, the left handle was immobile and the left door would not open. Ex. G at 9, 13-17, 27. When Labadia applied additional pressure to the right handle to force the handle to move, he heard something pop, fell backwards and injured his back. Ex. D at 89, 230. A question of fact exists as to whether the immobility of the left handle and the left door due to the defective lock was the proximate cause of Labadia's injuries. Therefore, the defendants' motions for summary judgment on this ground is denied.
C. Spoliation
Labadia contends that defendants GE and Conrail spoliated evidence and thus prejudiced his case. It is unclear whether New York or federal law governs this issue, but under either, notice of a pending lawsuit or the possibility of a future lawsuit is required to establish spoliation.Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 436 (2d Cir. 2001);New York Cent. Mut. Fire Ins. Co. v. Turnerson's Elec., Inc., 280 A.D.2d 652, 653 (2d Dep't 2001). GE was not aware of Labadia's injuries until the year 2000 and, thus, could not have known about the possibility of a lawsuit in 1998 when it repaired the railcar. Ex. E at 39-40. Labadia presents no evidence to contradict this assertion. Therefore, GE could not have spoliated evidence when it repaired the railcar. GE's motion for summary judgment on this ground is granted.
There exists a question of fact as to whether Conrail was aware of Labadia's injuries when their employee, Layman, discarded the defective door lock. Layman arrived at Papa John's to open the railcar door on the same day that Labadia injured himself. Ex. G at 10. Layman inspected the railcar and found the defective door lock. Ex. G at 16. Layman then cut off the defective door lock, put it in his truck and disposed of it in Conrail's car shop. Id. at 19, 21. A jury could infer that Layman knew about Labadia's injuries and then spoliated evidence. Thus, defendant Conrail's motion for summary judgment on this ground is denied.
D. Labadia's Cross-Motions for Summary Judgment
On Labadia's cross-motions, the evidence is viewed in the light most favorable to the defendants as the non-movants. See Ertman, 165 F.3d at 206. Questions of fact exist for each element necessary to establish negligence. See Section II(B) supra. For the following reasons, Labadia's cross-motion for summary judgment is denied.
1. Duty and Breach of Duty
There is a question of fact as to whether each defendant exercised ordinary care in providing a reasonably safe railcar and whether the defect could be discovered with reasonable care in inspection. Each defendant conducted an inspection of the railcar and no defendant found a defect in the locking mechanism. However, there is evidence that the defect could be seen from the ground if the inspector was standing fifteen feet away from the railcar. Ex. F at 19-20; Ex. J at 5-8, 11-15. A railcar inspection is conducted from a distance of five to six feet and not fifteen feet. Ex. F at 19-20. Additionally, Layman could not see the defect until he stood on top of the railcar. Ex. J at 16. Thus, there is a question as to whether the defect was visible during an ordinary inspection. Labadia's motion for summary judgment on this ground is denied.
2. Notice
Defendant Stanislaus may not have had actual notice because there is evidence that the defect may not have been caused by a forklift. The defect could have been caused by the door hitting a passenger ramp or hitting another railcar. Ex. F at 50. Additionally, there is evidence that Stanislaus may not have used a forklift to close the railcar doors. Ex. H at 52-53. Thus, a question exists as to whether Stanislaus created the defect and thus had actual notice.
There is evidence to support the other defendants' contentions that they did not have constructive notice because the defect could not be seen from the ground. Each inspection was conducted from a distance of five to six feet and there was only a fifteen percent chance that the defect could be seen from fifteen feet away, and then only if the inspector was specifically looking for the defect. Ex. F at 19-20; Ex. J at 5-8, 11, 13-15; Wolfe Reply Aff. (Docket No. 68) at ¶¶ 14-17. Additionally, Layman could not see the defect until he reached the top of the railcar and he was specifically looking for a defect in the door. Ex. G at 16. Thus, Labadia's motion for summary judgment on this ground is denied.
3. Causation
A question of fact exists as to whether the defective door lock was the proximate cause of Labadia's injuries. There is evidence that the left and right handles worked independently of each other and, thus, a defect in the left handle could not have caused the right handle to stop working. Wolfe Reply Aff. at ¶ 20; Layman Reply Aff. (Docket No. 69) at ¶ 13. Additionally, Labadia exerted additional force to cause the right handle to move, his hands slipped off the handle and he fell. Ex. D at 230, 232, 234. Thus, Labadia's injuries could have been caused by his hands slipping off the handle. Labadia's motion for summary judgment on this ground is denied.
E. GE's Indemnification Claim
GE contends they are entitled to contractual indemnification from MET. MET contends that they are not obligated to indemnify GE for their own negligence. MET argues that GE was negligent because it was GE's sole responsibility to repair the door hardware. MET agreed to indemnify GE against any and all liability, including attorney's fees and costs, unless the liability was the result of GE's negligence or willful misconduct. See LaRoque Aff. (Docket Nos. 47 49) at Ex. P, 10, ¶ 17. There is no evidence in the record that GE was negligent in this action and, thus, the language of the contract unequivocally obligates MET to indemnify GE for all attorney's fees and costs incurred to defend this action. GE's motion for summary judgment on this ground is granted.
III. Conclusion
WHEREFORE, for the reasons set forth above, it is hereby ORDERED that:
1. The motion of defendant GE (Docket No. 44) for summary judgment on all claims and cross-claims, including its cross-claim against defendant MET for indemnification, is
GRANTED;
2. The motions of defendants Stanislaus (Docket No. 81), Conrail and BNSF (Docket No. 57), and MET (Docket No. 71) for summary judgment are
DENIED in all respects; and
3. The cross-motions of plaintiff Labadia for summary judgment (Docket Nos. 50, 61, 75 85) for summary judgment are
DENIED in all respects; and
IT IS FURTHER ORDERED that the Clerk of Court serve a copy of this order, by regular mail, upon all parties to this action.
IT IS SO ORDERED