         09-5110-cv
         Guzman v. United States of America


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                          AMENDED SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of New
 4       York, on the 1 st day of October, two thousand and ten.
 5
 6       PRESENT: JON O. NEWMAN,
 7                GUIDO CALABRESI,
 8                RICHARD C. WESLEY,
 9                         Circuit Judges.
10
11
12
13       ISABELLE GUZMAN,
14
15                               Plaintiff-Appellant,
16
17                       -v.-                                                   09-5110-cv
18
19       WACKENHUT CORPORATION,
20
21                               Defendant-Appellee,
22
23       UNITED STATES OF AMERICA, L-3                               COMMUNICATIONS,              SECURITY
24       DETECTION SYSTEMS CORPORATION,
25
26                               Defendants. *
27
28




                 *
              The Clerk of the Court is directed to amend the
         official caption to conform with the caption above.
 1   FOR APPELLANT:     GREGORY R. PRESTON, Preston, Wilkins,
 2                      Martin & Rodriguez, PLLC, New York, NY.
 3
 4   FOR APPELLEE:      BRENDAN T. FITZPATRICK, Ahmuty, Demers &
 5                      McManus, Albertson, NY.
 6
 7        Appeal from the United States District Court for the
 8   Southern District of New York (Sweet, J.)
 9
10       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

11   AND DECREED that the judgment of the district court be VACATED

12   and REMANDED.

13       Plaintiff-Appellant, Isabelle Guzman appeals from a

14   judgment of the United States District Court for the

15   Southern District of New York (Sweet, J.), which granted

16   summary judgment in favor of Defendant-Appellee Wackenhut

17   Corporation. We assume the parties’ familiarity with the

18   underlying facts, the procedural history, and the issues

19   presented for review. 1

20       Under New York Law, a plaintiff seeking recovery for

21   personal injuries under a negligence theory must show duty,

22   breach, actual and proximate causation, and damages.

23   Williams v. Utica College of Syracuse Univ., 453 F.3d 112,

         1
           Plaintiff, Guzman, sued the United States of America
     as owner and operator of the Statue of Liberty and Liberty
     Island thus invoking the district court’s jurisdiction. 28
     U.S.C § 1346(b). Claims against other defendants, including
     Wackenhut Corporation, were included pursuant to the
     district court’s supplemental jurisdiction. 28 U.S.C §
     1367. The United States is no longer party to this action.
     Plaintiff’s remaining negligence action against Wackenhut is
     a matter of New York State law. We review de novo a grant
     of summary judgment. Huminski v. Corsones, 396 F.3d 53, 69
     (2d Cir. 2005).

                                   1
1    116 (2d Cir. 2006).   An existence of a duty of care is

2    usually a question of law for the court. Palka v.

3    Servicemaster Mgmt. Serv. Corp., 83 N.Y.2d 579, 585 (1994).

4    It is for the fact-finder to determine whether the duty was

5    breached and, if so, whether the breach was the proximate

6    cause of plaintiff's injury.   Id.

7        Wackenhut is an independent contractor, hired by the

8    National Park Service (“NPS”) to provide security services

9    at the Statue of Liberty.   As the district court correctly

10   noted, a contractor generally does not owe an independent

11   tort duty of care to a non-contracting third party.     Espinal

12   v. Melville Snow Contractors Inc., 98 N.Y.2d 136, 138—139

13   (2002); see also Church v. Callanan Indus., Inc., 99 N.Y.2d

14   104, 111 (2002).

15       However, there are three circumstances in which a duty

16   of care to non-contracting third parties may arise out of a

17   contractual obligation or the performance thereof: “(1)

18   where the contracting party, in failing to exercise

19   reasonable care in the performance of his duties, launche[s]

20   a force or instrument of harm,” Espinal, 98 N.Y.2d at 140,

21   or, stated differently, “negligently creates or exacerbates

22   a dangerous condition;” id. at 141—42; “(2) where the

23   plaintiff detrimentally relies on the continued performance

24   of the contracting party's duties; and (3) where the



                                    2
1    contracting party has entirely displaced the other party's

2    duty to maintain the premises safely,” id. at 140 (internal

3    quotations and citations omitted); see also Church, 99

4    N.Y.2d at 111 (describing the first Espinal exception as

5    applying to circumstances “where the promisor, while engaged

6    affirmatively in discharging a contractual obligation,

7    creates an unreasonable risk of harm to others, or increases

8    that risk”).

9        We conclude that Guzman’s claim against Wackenhut for

10   the negligent operation and supervision of the x-ray machine

11   is viable under the first Espinal exception.     Wackenhut was

12   employed, among other things, to operate the x-ray machines

13   at the Statue of Liberty.     The protocol that NPS developed

14   to clean the machines required Fedcap employees, like

15   Guzman, to hold a rag on the x-ray machine’s conveyor belt

16   while the belt was moving.     To facilitate this process,

17   Wackenhut employees, at the request of Fedcap employees,

18   would activate the conveyor belt and turn it off after

19   cleaning was completed.     Guzman was injured while executing

20   this protocol.   The Wackenhut employee started the conveyor

21   belt, running it in Guzman’s direction, and then left the

22   controls to retrieve a log book to mark down that the

23   machine was cleaned.   At that moment, Guzman’s hand became



                                     3
1    caught between the conveyor belt and the first metal roller.

2        While executing the cleaning protocol in cooperation

3    with Guzman, the Wackenhut employee controlled, and was

4    capable of launching, a potential instrument of harm.

5    Espinal, 98 N.Y.2d at 140.   As the one responsible for

6    starting and stopping the machine while Guzman cleaned the

7    conveyor belt, the Wackenhut employee was in a position to

8    create or increase an unreasonable risk of harm to Guzman.

9    See Church, 99 N.Y.2d at 111.       Under these circumstances,

10   Wackenhut owed a duty to Guzman to operate the conveyor belt

11   with reasonable care.   Therefore, the district court’s grant

12   of summary judgment on the ground that Wackenhut owed Guzman

13   no duty of care was incorrect. 2

14       Moreover, we disagree with the district court to the

15   extent it suggested that there exist alternative grounds for

16   granting summary judgment, namely that there are no facts to

17   suggest that Wackenhut breached its duty of care or that

18   such breach caused Guzman’s injuries.       Under New York law,

19   breach and proximate cause are questions for the finder of

20   fact. See Palka, 83 N.Y.2d at 585.       Guzman’s expert raises


         2
           Wackenhut corporation is liable for any negligence of
     its employee arising from acts committed within the scope of
     the employee's employment. Brown v. Poritzky, 30 N.Y.2d
     289, 292 (1972). There is no dispute that the Wackenhut
     employee was acting within the scope of his employment.

                                     4
1    issues of material fact as to whether, by turning the belt

2    on in her direction and/or by stepping away from the

3    controls while Guzman cleaned the belt, the Wackenhut

4    employee created an unreasonable risk of harm, thereby

5    breaching its duty of care, and whether those alleged

6    breaches caused Guzman’s injuries.   The existence of these

7    issues of material fact render summary judgment improper.

8    See Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.

9    2000).   Accordingly, we remand to the district court for

10   further proceedings consistent with this Order.

11       For the foregoing reasons, the judgment of the district

12   court is hereby VACATED and REMANDED.

13
14                               FOR THE COURT:
15                               Catherine O’Hagan Wolfe, Clerk
16
17




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