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Yazujian v. Jacobs Project Management Co.

United States District Court, Third Circuit

November 6, 2013

HARRY YAZUJIAN and ALICE YAZUJIAN Plaintiffs,
v.
JACOBS PROJECT MANAGEMENT CO., TEK SOLV, INC., and WALTER YASIEJKO D/B/A/ WGY CONSULTING Defendants.

MEMORANDUM

BUCKWALTER, S. J.

Pending before the Court are the Motion for Summary Judgment by Defendant Jacobs Project Management, Inc. (“Jacobs”) and the Motion for Summary Judgment by Defendant Tek Solv, Inc. (“Tek Solv”). For the following reasons, Defendant Jacobs’s Motion for Summary Judgment is granted, and Defendant Tek Solv’s Motion for Summary Judgment is denied.

I. FACTUAL AND PROCEDURAL HISTORY[1]

Plaintiffs are a married couple residing in Pennsylvania. (Am. Compl. ¶ 1.) Defendant Jacobs Project Management Co. (“Jacobs”) is a privately-held subsidiary of Jacobs Engineering Group, Inc., with its principal place of business in Virginia. (Id. ¶ 3.) Defendant Tek Solv, Inc. (“Tek Solv”) is a Delaware corporation with its principal place of business in California. (Notice of Removal 2.) Defendant Walter Yasieljko is a resident of Delaware, doing business as WGY Consulting, a sole proprietorship with its principal place of business in Delaware. (First Am. Compl. ¶ 5.)

Plaintiff Harry Yazujian (“Plaintiff”) is a construction laborer who was performing demolition work to remove a section of a drop ceiling at Amtrak’s 30th Street Station in Philadelphia, Pennsylvania. (Am. Compl. ¶¶ 10, 13.) Plaintiff performed the work as an employee of Merrell & Garaguso, Inc. (“M&G”). (Id. ¶ 8, 13.) Defendant Jacobs, in its capacity as the general contractor for the construction project at the 30th Street Station, retained M&G to perform demolition work associated with “30th Street Station Enhancements.” (Id., Ex. C, “Design-Build Agreement” at 2; Pl.’s Resp. to Tek Solv’s Mot. Summ. J., Dep. of David Winoski, March 13, 2013 (“Winoski Deposition”), 9:5–8, 10:11–12.)

Several provisions of the “Design-Build Agreement” between Jacobs and M&G addressed safety. M&G had “overall responsibility for safety precautions and programs in performance of the Work.” (Design-Build Agreement, Art. 3.5.1.) M&G was responsible for “develop[ing] a safety program” and “advis[ing] Jacobs in writing of measures, if any, necessary or appropriate to obtain compliance with said program.” (Id., Art. 3.5.2.) M&G also agreed to “take all responsible precautions for safety” and “provide reasonable protection to prevent damage, injury, or loss from all causes to . . . employees performing work on site” and “erect and maintain . . . reasonable safeguards for safety and protection of persons and property[.]” (Id., Art. 3.5.3 3.5.4.) Jacobs retained the following right:

If Jacobs obtains knowledge of a safety violation or other unsafe condition on or about the Work Site which has an immediate potential or adverse effect on life or property, Jacobs is authorized, without prior notice to [M&G], to take all actions deemed necessary and appropriate by Jacobs under the then existing circumstances to prevent such actual and potential adverse effect and, in such case, [M&G] shall be responsible for all Jacobs’ costs incurred thereby. At all times [M&G]’s Safety Program and practices and procedures on the Worksite shall comply in all respects with the safety policies adopted by Jacobs and set forth herein as Attachment “A.”[2]

(Id., Art. 3.5.7.) Another provision of the agreement that did not specifically pertain to safety gave Jacobs the following general responsibility:

If Jacobs becomes aware of any error, omission or failure to meet the requirements of the Contract Documents or any fault or defect in the Work, Jacobs shall give prompt written notice to [M&G]. The failure of Jacobs to give such notice shall not relieve [M&G] of its obligations to fulfill the requirements of the Contract Documents.

(Id., Art. 4.1.2.)

Jacobs’s on-site representatives included project manager David Winoski. (Winoski Dep. 9:14.) Winoski routinely toured the work site, compiled “Safety Observation Reports, ” and, when he observed workers who were not wearing their protective equipment, reminded personnel working on the site to wear their protective equipment. (Id. at 36:13–23.)

M&G contracted with Defendant Tek Solv to “[p]rovide Merrell & Garaguso, Inc. with a Site Safety Professional.” (Id., Ex. F, “Subcontract Agreement” at 1.) In that subcontract agreement, Tek Solv further warranted that “work performed . . . [is] free from any defect of equipment, material or design furnished or workmanship performed by [Tek Solv] or any of its tier subcontractors or suppliers.” (Id. at 4.) Tek Solv then hired Defendant Walter Yasieljko (“Yasieljko”) “[t]o be a safety person for Merrell and Garaguso.” (Id., Ex. E, Dep. of Bryan Jones, Feb.15, 2013 (“Jones Dep.”), 10:4–9.) Tek Solv hired Yasieljko on the basis of his prior experience working for Tek Solv, his “strong safety background, ” and knowledge of “safety requirements in these types of facilities.” (Id. at 12:16–19.) Additionally, under the “Subcontract Agreement” with M&G, Tek Solv was obligated to “[d]evelop a project specific HSE [health and safety] plan.” (Jones Dep. at 16:1–14; Subcontract Agreement.) Although M&G “had inquired” about developing a health and safety plan, Tek Solv “never did participate in” the development of such a plan with M&G. (Jones Dep., 16:18–20.)

On or about September 27, 2010, Plaintiff reported to the 30th Street Station work site and participated in a three-to-four-hour “safety meeting” with Amtrak employees and contractors new to the site. (Tek Solv’s Mot. Summ. J., Ex. D, Dep. of Harry Yazujian, Jan. 18, 2013, (“Yazujian Dep.”) 109:11–24, 111:6–16.) To Plaintiff’s recollection, nothing in the “safety meeting” concerned Plaintiff’s demolition work specifically. (Id. at 110:14–20.) Yasieljko also held a meeting at the start of each work day with “all the individuals that were involved with the job [to] go over . . . what personal protective equipment was necessary and required, and precautions.” (Id., Ex. H, Dep. of Walter Yasieljko (“Yasieljko Dep.”) at 33:16–20.) At some point after Yasieljko started working on the site but before September 29, 2010, at least one representative of Tek Solv visited the work site to “see the job.” (Jones Dep. 11:5–21.)

On September 29, 2010, Plaintiff was demolishing an approximately nine-to-ten-foot-high drop ceiling in an old restroom area of 30th Street Station. (Am. Compl. ¶ 10; Yazujian Dep. 119:17–23; Yasieljko Dep. 13:7–16, 16:13–14.) To perform his work, Plaintiff stood on an eight-foot ladder. (Yazujian Dep. 119:17–23; Yasieljko Dep. 19:4–6.) The ladder stood on all four points and was completely opened, but was not otherwise secured. (Yasieljko Dep. 118:8–14.) While working, Plaintiff stood on the top of the ladder, with the top half of his body above the ceiling level. (Yazujian Dep. 194:4–21.) In his work demolishing the drop ceiling, Yasieljko had instructed Plaintiff to cut the ceiling in “two-feet sections.” (Yazujian Dep. 152:7–8.) In order to demolish such a section, Plaintiff had to cut several wires and then “push down on the section [he] wanted to cut away.” (Id. at 195:1–196:20.) At approximately 2:45 p.m., approximately fifteen to thirty minutes before the end of his work day, Plaintiff cut away a section of the ceiling larger than a two-foot section, without cutting all of the wires. (Id. at 150:10–14, 196:5–13, 245:16–246:2.) That piece of ceiling fell to the floor, striking the ladder on which Plaintiff was standing, causing Plaintiff to fall to the floor. (Tek Solv’s Mot. Summ. J., Ex. I, Deposition of Francis Pratt (“Pratt Dep.”), Feb. 25, 2013, 33:2–13.) The fall caused injuries to Plaintiff’s spine, pelvis, torso, wrist, head, and shoulders. (Am. Compl. ¶ 23.)

Plaintiffs initiated the present litigation by filing a complaint, on February 14, 2012 in the Court of Common Pleas of Philadelphia County. (Notice of Removal 2.) On March 22, 2012, Defendant Jacobs removed this case from the Court of Common Pleas of Philadelphia County to this Court. (Id. at 1.) After some initial motion practice, Plaintiffs filed their Amended Complaint on September 18, 2012. Plaintiffs set forth two causes of action: Counts I–III allege that Defendants were negligent. (Am. Compl. ¶¶ 31–36.) Counts IV–VI[3] claim loss of consortium. (Id. ¶¶ 37–43.)

Defendant Tek Solv filed its pending Motion for Summary Judgment on June 5, 2013. Defendant Jacobs filed its pending Motion for Summary Judgment on June 12, 2013. Plaintiffs filed a Response in Opposition to Tek Solv’s Motion on June 26, 2013 and a Response in Opposition to Jacobs’s Motion on July 2, 2013. Defendant Jacobs filed a Reply to Plaintiffs’ Response to its Motion on July 10, 2013. Defendant Tek Solv filed a Reply to Plaintiffs’ Response to its Motion on July 12, 2013. Plaintiffs filed a Sur-Reply to Jacobs on July 16, 2013.

II. STANDARD OF REVIEW

Summary judgment is proper “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.” Fed.R.Civ.P. 56(c). A factual dispute is “material” only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For an issue to be “genuine, ” a reasonable fact-finder must be able to return a verdict in favor of the non-moving party. Id.

On summary judgment, it is not the court’s role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. Boyle v. Cnty. of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998) (citing Petruzzi’s IGA Supermkts., Inc. v. Darling-Del. Co. Inc., 998 F.2d 1224, 1230 (3d Cir. 1993)). Rather, the court must consider the evidence, and all reasonable inferences which may be drawn from it, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987). If a conflict arises between the evidence ...


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