Guzman v. United States

09-5110-cv Guzman v. United States of America

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of New 4 York, on the 30 th day of September, two thousand and ten. 5 6 PRESENT: JON O. NEWMAN, 7 GUIDO CALABRESI, 8 RICHARD C. WESLEY, 9 Circuit Judges. 10 11 12 13 ISABELLE GUZMAN, 14 15 Plaintiff-Appellant, 16 17 -v.- 09-5110-cv 18 19 WACKENHUT CORPORATION, 20 21 Defendant-Appellee, 22 23 UNITED STATES OF AMERICA, L-3 COMMUNICATIONS, SECURITY 24 DETECTION SYSTEMS CORPORATION, 25 26 Defendants. * 27 28

* The Clerk of the Court is directed to amend the official caption to conform with the caption above.

1 FOR APPELLANT: GREGORY R. PRESTON, Preston, Wilkins, 2 Martin & Rodriguez, PLLC, New York, NY. 3 4 FOR APPELLEE: BRENDAN T. FITZPATRICK, Ahmuty, Demers & 5 McManus, Albertson, NY. 6 7 Appeal from the United States District Court for the 8 Southern District of New York (Sweet, J.) 9 10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

11 AND DECREED that the judgment of the district court be VACATED 12 and REMANDED. 13 Plaintiff-Appellant, Isabelle Guzman appeals from a 14 judgment of the United States District Court for the 15 Southern District of New York (Sweet, J.), which granted 16 summary judgment in favor of Defendant-Appellee Wackenhut 17 Corporation. We assume the parties’ familiarity with the 18 underlying facts, the procedural history, and the issues 19 presented for review. 1 20 Under New York Law, a plaintiff seeking recovery for 21 personal injuries under a negligence theory must show duty, 22 breach, actual and proximate causation, and damages. 23 Williams v. Utica College of Syracuse Univ., 453 F.3d 112,

1 Plaintiff, Guzman, sued the United States of America as owner and operator of the Statue of Liberty and Liberty Island thus invoking the district court’s jurisdiction. 28 U.S.C § 1346(b). Claims against other defendants, including Wackenhut Corporation, were included pursuant to the district court’s supplemental jurisdiction. 28 U.S.C § 1367. The United States is no longer party to this action. Plaintiff’s remaining negligence action against Wackenhut is a matter of New York State law. We review de novo a grant of summary judgment. Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 2005).

1 116 (2d Cir. 2006). An existence of a duty of care is 2 usually a question of law for the court. Palka v. 3 Servicemaster Mgmt. Serv. Corp., 83 N.Y.2d 579, 585 (1994). 4 It is for the fact-finder to determine whether the duty was 5 breached and, if so, whether the breach was the proximate 6 cause of plaintiff's injury. Id. 7 Wackenhut is an independent contractor, hired by the 8 National Park Service (“NPS”) to provide security services 9 at the Statute of Liberty. As the district court correctly 10 noted, a contractor generally does not owe an independent 11 tort duty of care to a non-contracting third party. Espinal 12 v. Melville Snow Contractors Inc., 98 N.Y.2d 136, 138—139 13 (2002); see also Church v. Callanan Industries, Inc., 99 14 N.Y.2d 104, 111 (2002). 15 However, there are three circumstances in which a duty 16 of care to non-contracting third parties may arise out of a 17 contractual obligation or the performance thereof: “(1) 18 where the contracting party, in failing to exercise 19 reasonable care in the performance of his duties, launche[s] 20 a force or instrument of harm,” Espinal, 98 N.Y.2d at 140, 21 or, stated differently, “negligently creates or exacerbates 22 a dangerous condition;” id. at 141—42; “(2) where the 23 plaintiff detrimentally relies on the continued performance 24 of the contracting party's duties; and (3) where the *3 1 contracting party has entirely displaced the other party's 2 duty to maintain the premises safely,” id. at 140 (internal 3 quotations and citations omitted); see also Church, 99 4 N.Y.2d at 111 (describing the first Espinal exception as 5 applying to circumstances “where the promisor, while engaged 6 affirmatively in discharging a contractual obligation, 7 creates an unreasonable risk of harm to others, or increases 8 that risk”). 9 We conclude that Guzman’s claim against Wackenhut for 10 the negligent operation and supervision of the x-ray machine 11 is viable under the first Espinal exception. Wackenhut was 12 employed, among other things, to operate the x-ray machines 13 at the Statue of Liberty. The protocol that NPS developed 14 to clean the machines required Fedcap employees, like 15 Guzman, to hold a rag on the x-ray machine’s conveyor belt 16 while the belt was moving. To facilitate this process, 17 Wackenhut employees, at the request of Fedcap employees, 18 would activate the conveyor belt and turn it off after 19 cleaning was completed. Guzman was injured while executing 20 this protocol. The Wackenhut employee started the conveyor 21 belt, running it in Guzman’s direction, and then left the 22 controls to retrieve a log book to mark down that the 23 machine was cleaned. At that moment, Guzman’s hand became *4 1 caught between the conveyor belt and the first metal roller. 2 While executing the cleaning protocol in cooperation 3 with Guzman, the Wackenhut employee controlled, and was 4 capable of launching, a potential instrument of harm. 5 Espinal, 98 N.Y.2d at 140. As the one responsible for 6 starting and stopping the machine while Guzman cleaned the 7 conveyor belt, the Wackenhut employee was in a position to 8 create or increase an unreasonable risk of harm to Guzman. 9 See Church, 99 N.Y.2d at 111. Under these circumstances, 10 Wackenhut owed a duty to Guzman to operate the conveyor belt 11 with reasonable care. Therefore, the district court’s grant 12 of summary judgment on the ground that Wackenhut owed Guzman 13 no duty of care was incorrect. 2 14 Moreover, we disagree with the district court to the 15 extent it suggested that there exist alternative grounds for 16 granting summary judgment, namely that there are no facts to 17 suggest that Wackenhut breached its duty of care or that 18 such breach caused Guzman’s injuries. Under New York law, 19 breach and proximate cause are questions for the finder of 20 fact. See Palka, 83 N.Y.2d at 585. Guzman’s expert raises

2 Wackenhut corporation is liable for any negligence of its employee arising from acts committed within the scope of the employee's employment. Brown v. Poritzky, 30 N.Y.2d 289 (1972). There is no dispute that the Wackenhut employee was acting within the scope of his employment.

1 issues of material fact as to whether, by turning the belt 2 on in her direction and/or by stepping away from the 3 controls while Guzman cleaned the belt, the Wackenhut 4 employee created an unreasonable risk of harm, thereby 5 breaching its duty of care, and whether those alleged 6 breaches caused Guzman’s injuries. The existence of these 7 issues of material fact render summary judgment improper. 8 See Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 9 2000). Accordingly, we remand to the district court for 10 further proceedings consistent with this Order. 11 For the foregoing reasons, the judgment of the district 12 court is hereby VACATED and REMANDED.

13 14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, Clerk 16 17