In a decision dated October 26, 2021, the Honorable Julian D. Schreibman of Ulster County Supreme Court granted the motion for summary judgment brought by our client, Kiewit Constructors, Inc. (“Kiewit”), seeking dismissal of the plaintiff’s negligence claim against it and summary judgment on its cross-claim against the defendant, Steelways, Inc. (“Steelways”), for contractual indemnification.  The plaintiff, an employee of the defendant, CSX Transportation (“CSXT”), alleged that on March 7, 2017, he sustained personal injuries when a CSXT train struck a man-lift which had inexplicably stopped on the railroad tracks at a public crossing, causing the man-lift and a derailed train car to strike a piece of track maintenance equipment in which the plaintiff was sitting.  Kiewit had provided the man-lift to Steelways to use to wash steel pipes pursuant to their contract.  The accident occurred at the end of the work day, when one of Steelways’ employees attempted to drive the man-lift across the tracks to Kiewit’s facilities for overnight storage while other Steelways employees flagged traffic.  The plaintiff alleged that Kiewit was negligent in providing a defective man-lift, failing to properly train and supervise Steelways’ employees and failing to operate the CSXT train at the proper speed.  To determine whether Kiewit was entitled to summary judgment, the Court first considered whether Kiewit owed the plaintiff a duty of care, which turned on whether Kiewit owed the plaintiff a duty to control CSXT’s and Steelways’ employee’s conduct.  

The Court agreed with Kiewit that it did not owe the plaintiff a duty to control CSXT’s conduct for the plaintiff’s benefit because Kiewit did not have any relationship with CSXT.  The Court also agreed with Kiewit that it was not responsible for Steelways’ employee’s alleged failure to properly operate the man-lift while crossing the tracks because Steelways was an independent contractor.  Kiewit’s contract with Steelways expressly provided that Steelways was to provide all supervision with respect to its work of power washing steel pipes for Kiewit.  The Court rejected Steelways’ argument that a contract provision requiring Steelways to perform the work “in a prompt manner as directed by Kiewit” created an issue of fact. The Court determined that the provision merely reflected Kiewit’s “general supervisory powers” over Steelways.  The Court also rejected Steelways’ argument that the contract should be construed against Kiewit, the drafter of the agreement, because the deposition testimony of Steelways’ president that he read every contract, including the contract at issue, showed he was a sophisticated party.  The Court was also unpersuaded by Steelways’ argument that Kiewit exercised supervision and control over the work because Kiewit had provided some initial training to Steelways’ employees regarding how to use the man-lift. According to the Court, this kind of activity only demonstrated that Kiewit exercised general supervisory control over the work.  The  Court also agreed plaintiff had failed to refute Kiewit’s prima facie showing that the man-lift was not defective.  Kiewit established its prima facie burden based on the evidence that its foreman had inspected the man-lift five days before the accident, that Steelways had inspected it on the morning of the accident and that Steelways’ employees had operated the man-lift on the day of the accident without incident.  The Court found that Steelways’ contentions that Kiewit failed to establish the man-lift was not in use in the five days between Kiewit’s safety inspection and the date of the accident, and that Steelways had not shown its inspection form was approved by the man-lift’s manufacturer were speculative and insufficient to create a triable issue of fact as to whether the man-lift Kiewit provided was defective. 

The Court also granted Kiewit’s motion for summary judgment on its cross-claim for contractual indemnification against Steelways because the accident “ar[ose] out of” Steelways’ work under the indemnity provision.  The Court rejected Steelways’ argument that the contract was void based on its president’s testimony that a person whom he could only identify as someone possibly named  “Dave” from Kiewit had orally told him that Kiewit would be responsible for supervising Steelways’ employees. The Court determined this testimony was insufficient to avoid summary judgment.    

Corey Kiernan v. CSX Transportation, Inc. et al., Index No. EF2017-2094 (Sup. Ct. Ulster Co., Oct. 26, 2021)