Gray v. Wackenhut Services, Alutiiq Security & Technology

10-3706-cv
Gray v. Wackenhut Services, Alutiiq Security & Technology
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX 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 for the
2 Second Circuit, held at the Daniel Patrick Moynihan United States
3 Courthouse, 500 Pearl Street, in the City of New York, on the 15th
4 day of November, two thousand eleven.
5 PRESENT:
6 ROSEMARY S. POOLER,
7 ROBERT D. SACK,
8 REENA RAGGI,
9 Circuit Judges.
10 --------------------------------------
11 GWENDOLYN GRAY,
12 Plaintiff-Appellant,
13 - v - No. 10-3706-cv
14 WACKENHUT SERVICES, INCORPORATED,
15 ALUTIIQ SECURITY & TECHNOLOGY, LLC,
16 AFOGNAK NATIVE CORPORATION,
17 Defendants-Cross-
18 Claimants-Cross-
19 Defendants-Appellees.
20 --------------------------------------
21 For Appellant: GEORGE A. KOHL, II, Finkelstein &
22 Partners LLP, Newburgh, NY
1 For Appellee Wackenhut
2 Services, Incorporated: BRENDAN T. FITZPATRICK, Ahmuty,
3 Demers & McManus, Albertson, NY
4 For Appellees Alutiiq Security
5 & Technology, LLC, Afognak
6 Native Corporation: JOHN SANDERCOCK, Lester Schwab Katz
7 & Dwyer, LLP, New York, NY
8 Appeal from the United States District Court for the
9 Southern District of New York (Sweet, J.).
10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
11 DECREED that the judgment of district court be, and it hereby is,
12 AFFIRMED.
13 Petitioner Gray brought a negligence action against
14 Wackenhut Services, Incorporated ("Wackenhut"), Alutiiq Security
15 & Technology, LLC and Afognak Native Corporation (collectively
16 "Alutiiq") after a civilian motor vehicle accident on the grounds
17 of the West Point Military Academy in New York State. Her claims
18 against both defendants were dismissed by the district court on
19 summary judgment. We assume the parties’ familiarity with the
20 underlying facts, procedural history, and specification of issues
21 for review.
22 This case arises under the laws of New York, where, "[i]n
23 order to set forth a prima facie case of negligence, the
24 plaintiff’s evidence must establish (1) the existence of a duty
25 on defendant’s part to plaintiff; (2) a breach of this duty; and
26 (3) that such breach was a substantial cause of the resulting
27 injury." Merino v. New York City Transit Auth., 218 A.D.2d 451,
28 457 (1st Dep’t), aff’d, 89 N.Y.2d 824 (1996). Where a defendant
2
1 establishes that a plaintiff's negligence was the sole proximate
2 cause of an accident, the defendant is not liable to the
3 plaintiff for damages. See, e.g., Gallagher v. McCurty, 85
4 A.D.3d 1109, 1109 (2d Dep't 2011). Because the defendants have
5 established as a matter of law that Gray's own negligence was the
6 sole proximate cause of her accident, this Court need not reach
7 the issue of duty or breach.
8 First, there is no evidence in the record that Gray heard
9 the Wackenhut employee say, "they can go," before she drove her
10 car into a barricade. Gray did not testify at her deposition
11 either that she heard the Wackenhut employee tell her she could
12 drive forward, or that her passenger, who heard it, repeated the
13 employee's instruction to "go" so that Gray might have acted upon
14 it. Summary judgment is appropriate as to Wackenhut because
15 there is thus no evidence that the Wackenhut employee's actions
16 were a cause of the accident. Where a plaintiff cannot show that
17 she relied upon the "signal given to her by the defendant's
18 employee," the plaintiff cannot "meet her burden of proving" that
19 the collision was caused by the signal. Shapiro v. Mangio, 259
20 A.D.2d 692, 692 (2d Dep't 1999) (discussing Valdez v. Bernard,
21 123 A.D.2d 351, 352 (2d Dep't 1986)).
22 Second, although the evidence suggests that an Alutiiq
23 employee may have signaled for Gray to proceed, and told her to
24 "go" or that she was "good to go," that creates no genuine
3
1 dispute of material fact to be tried. As the district court
2 concluded, the barrier Gray drove into had to have been visible
3 to her in light of the damage caused by the barrier to the top of
4 the car's grill. "A driver is required to see that which through
5 proper use of his or her senses he or she should have
6 seen . . . ." Rahaman v. Adodeledhman, 64 A.D.3d 552, 553 (2d
7 Dep't 2009). Under New York law, "[n]o person shall move a
8 vehicle which is stopped, standing, or parked unless and until
9 such movement can be made with reasonable safety." N.Y. Veh. &
10 Traf. Law § 1162. A violation of that law constitutes negligence
11 per se. See Elliott v. City of New York, 95 N.Y.2d 730, 734
12 (2001).
13 As the district court noted, New York courts have not been
14 reluctant to grant summary judgment where the record reflected
15 that one party's negligence was the sole proximate cause of an
16 accident. See, e.g., Groboski v. Godfroy, 74 A.D.3d 1524, 1525
17 (3d Dep't 2010) (affirming grant of summary judgment for
18 defendant who hit plaintiff's car broadside because plaintiff
19 failed to yield the right-of-way); Stevens v. Zukowski, 55 A.D.3d
20 1400, 1401 (4th Dep't 2008) (affirming grant of summary judgment
21 to plaintiff who hit a car with his motorcycle after car pulled
22 out suddenly in front of him); Garnsey v. Bujanowski, 13 A.D.3d
23 857, 857 (3d Dep't 2004) (affirming summary judgment for
24 defendant who struck an all-terrain vehicle causing a fatal
4
1 accident because the ATV driver failed to yield the
2 right-of-way); Irwin v. Mucha, 154 A.D.2d 895, 896 (4th Dep't
3 1989) (relying on VTL § 1162 to affirm grant of summary judgment
4 in favor of plaintiff whose foot was run over by a driver after
5 she exited rear seat of the driver's car).
6 The undisputed facts are that Gray could have seen the
7 barrier that she drove into and that she drove into it anyway.
8 Her actions were thus the sole proximate cause of the accident.
9 For the foregoing reasons, the judgment of the district
10 court be and it hereby is AFFIRMED.
11 FOR THE COURT:
12 CATHERINE O'HAGAN WOLFE, CLERK
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