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Alexander v. Tutor Perini Corp.

United States District Court, E.D. Pennsylvania

September 14, 2017



          EDUARDO C. ROBRENO, J.

         This personal injury action arises out of a construction accident that occurred on January 30, 2014, at the Chestnut Street Tower Project (the “Project”) located at 30th and Chestnut Streets in Philadelphia, Pennsylvania. Defendant Tutor Perini Building Corporation (“TPBC”), the construction manager on the Project, subcontracted the concrete superstructure work to Carson Concrete Corporation (“Carson”). Plaintiff Aaron Alexander, an employee of Carson who worked on the Project as a concrete laborer, suffered injuries when he was struck from behind by pieces of concrete that unexpectedly shot out of a hose used to place concrete on site. He seeks to hold TPBC and its parent company, Tutor Perini Corporation (“Tutor Perini”), liable for these injuries on a theory of negligence.

         Following discovery, Defendants together moved for summary judgment, and Plaintiff responded in opposition thereto. For the reasons that follow, the Court will grant summary judgment in favor of Defendants on all claims in this case.


         Plaintiff is a 30-year-old resident of Philadelphia, Pennsylvania, who has worked as a construction worker for various construction companies since 2008. See Aaron Alexander Dep. Tr. at 6:19-24; 9:22-11:19; 13:5-15:19; Defs.' Mot. Summ. J. Ex. A, ECF No. 26-3. At the time of the accident underlying this lawsuit, Plaintiff had been working for Carson as a concrete laborer for approximately one year. See Id. at 9:22-10:3.

         TPBC is a construction management company and a wholly-owned subsidiary of Tutor Perini, a publicly traded company.[1] See Rule 7.1 Disclosure Statement Form, ECF No. 2. TPBC was hired to manage the Project, which was the construction of a 34-story high-rise apartment building located on 30th Street between Chestnut and Walnut Streets in Philadelphia. See Jack Cooney Dep. Tr. at 13:13-22, Defs.' Mot. Summ. J. Ex. C, ECF No. 26-5. This hire was made by Campus Crest at Philadelphia, GP (“Campus Crest”), which effectively owned the premises on which the Project was located (the “Premises”).[2] See Constr. Mgmt. Servs. Agmt., Oct. 22, 2012, Defs.' Mot. Summ. J. Ex. D-1, ECF No. 26-6. In turn, TPBC entered into a subcontract agreement with Carson regarding the superstructure concrete work on the Project.[3] See Carson Subcontract, Defs.' Mot. Summ. J. Ex. E, ECF No. 26-8.

         In conjunction with the Project, TPBC developed an environmental health and safety plan detailing the rules and procedures with which subcontractors and their employees were expected to comply. See Safety Plan, Defs.' Mot. Summ. J. Ex. G, ECF No. 26-10; see also John Schellenberg Dep. Tr. at 35:7-24; 37:10-18, Defs.' Mot. Summ. J. Ex. H, ECF No. 26-11. TPBC kept an office and a trailer on the premises of the Project in order to monitor the Project and enforce its safety procedures, and TPBC employees maintained a constant presence on site. See John Schellenberg Dep. Tr. at 92:11-20 (testifying that TPBC had an office on site at the Project); Jack Cooney Dep. Tr. at 26:9-13, 27:16-24 (testifying that at least one TPBC superintendent was on site at the Project every day).

         On the morning of the accident, January 30, 2014, Plaintiff arrived on the premises of the Project around 7:00 a.m. and learned that he, along with a crew of four to six additional laborers, needed to determine the location of a concrete jam inside the pipes. See Aaron Alexander Dep. Tr. at 66:4-6. After disconnecting a series of pipes several floors below the location of the day's planned concrete pour, this crew identified two to four pipes in which the concrete had become “frozen” or “hard.” Id. at 83:14-21; 85:4-18. The crew removed this concrete from the pipes, and Plaintiff thereafter returned to the upper floors to prepare for the pour--only to discover that more concrete had become jammed somewhere else in the pipes. Id. at 89:13-16; 91:5-8. Plaintiff and the rest of the crew began disassembling the pipes on the upper floors and found more of what Plaintiff described as “[f]rozen concrete, solid hard concrete in the top of the pipe.” Id. at 94:4-7. While chipping this concrete out of the top of the pipe, Plaintiff was “hit from behind with concrete in the back of [his] leg and in [his] back.” Id. at 95:14-21.

         Plaintiff was then taken in a Carson work truck to the emergency room at Hahnemann Hospital. Id. at 113:1-7. He was discharged after several hours without being administered any medication. Id. at 113:18-114:1. Plaintiff's medical records reflect a diagnosis of “[k]nee contusion and first degree burn to the buttocks.”[4] Hahnemann Records, Defs.' Mot. Summ. J. Ex. L at 4, ECF No. 26-15.

         Plaintiff initiated this action by filing a complaint in the Philadelphia County Court of Common Pleas on January 14, 2016. On February 3, 2016, Defendants timely removed the case to this Court on the basis of diversity jurisdiction. ECF No. 1. Defendants answered the complaint on February 4, 2016. ECF No. 3. Following discovery, Defendants moved for summary judgment, which Plaintiff opposed. ECF Nos. 26, 27. The motion is now ripe for disposition.


         Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). “A motion for summary judgment will not be defeated by ‘the mere existence' of some disputed facts, but will be denied when there is a genuine issue of material fact.” Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)). A fact is “material” if proof of its existence or nonexistence might affect the outcome of the litigation; a dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.

         In considering a motion for summary judgment, the Court views the facts in the light most favorable to the nonmoving party. “After making all reasonable inferences in the nonmoving party's favor, there is a genuine issue of material fact if a reasonable jury could find for the nonmoving party.” Pignataro v. Port Auth. of N.Y. & N.J., 593 F.3d 265, 268 (3d Cir. 2010). The moving party bears the initial burden of showing the absence of a genuine issue of material fact, but meeting this obligation shifts the burden to the nonmoving party, who then must “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250 (quoting Fed.R.Civ.P. 56(e)).

         III. ...

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