United States District Court, E.D. Pennsylvania
EDUARDO C. ROBRENO, J.
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
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.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
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
a construction management company and a wholly-owned
subsidiary of Tutor Perini, a publicly traded
company. 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”). 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. See Carson Subcontract, Defs.' Mot.
Summ. J. Ex. E, ECF No. 26-8.
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
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.
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.” Hahnemann Records, Defs.' Mot. Summ.
J. Ex. L at 4, ECF No. 26-15.
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.
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
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)).