Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bivens v. Wiseman

September 5, 2007

EUGENE BIVENS, AND DENISE BIVENS, HIS WIFE, PLAINTIFFS,
v.
TAYLOR, WISEMAN & TAYLOR, ENVIRONMENTAL EVALUATION GROUP, INC., CONOCO PHILLIPS HONORABLE JOSEPH E. IRENAS COMPANY, CONOCO PHILLIPS CORPORATION AND/OR CONOCO PHILLIPS, INC., EXXON MOBIL (JEI) CORPORATION, AND BNY WESTERN TRUST COMPANY, DEFENDANTS.
TAYLOR, WISEMAN & TAYLOR, AND ENVIRONMENTAL EVALUATION GROUP, INC., THIRD-PARTY PLAINTIFFS,
v.
THE HARTFORD FINANCIAL SERVICES GROUP, INC., WATERLINK, INC., CALGON CARBON CORPORATION, BARNEBEY SUTCLIFFE CORP., CONOCO PHILLIPS COMPANY, CONOCO PHILLIPS CORPORATION AND/OR CONOCO PHILLIPS, INC., HANDEX ENVIRONMENTAL RECOVERY, INC. AND/OR HANDEX CONSULTING & REMEDIATION, LLC, AND THOMAS J. O'BEIRNE & COMPANY, INC., THIRD-PARTY DEFENDANTS.



The opinion of the court was delivered by: Irenas, Senior District Judge

OPINION

On March 5, 2004, Plaintiff Eugene Bivens ("Plaintiff")*fn1 was maintaining a carbon filtration vessel located in a shed when he tripped and fell into a hole, injuring his back. His sole allegation is that Defendants*fn2 acted negligently in allowing a dangerous condition to exist and in failing to warn of or repair the condition. (Compl. ¶ 12). The Court has jurisdiction pursuant to 28 U.S.C. § 1332. Venue is appropriate under 28 U.S.C. § 1391(a)(1).*fn3

In its Amended Answer, Defendant ConocoPhillips Company ("Conoco")*fn4 filed a cross-claim against Defendants Taylor, Wiseman & Taylor ("TWT") and Environmental Evaluation Group, Inc. ("EEG")*fn5 seeking to compel TWT to defend and indemnify Conoco under an agreement between the parties. TWT then filed a Third-Party Complaint against The Hartford Financial Services Group, Inc. ("Hartford"), Waterlink, Inc. ("Waterlink"), Calgon Carbon Corporation ("Calgon"), Barnebey Sutcliffe Corp. ("Barnebey"), Conoco, Handex Environmental Recovery, Inc. ("HER"), Handex Consulting & Remediation, LLC ("HCR"), and Thomas J. O'Beirne & Co., Inc. ("TJO").*fn6

Count One of the Third-Party Complaint seeks a declaration regarding TWT's right of defense and indemnity under a Hartford insurance policy. In Count Two, TWT seeks defense and indemnification under the master and subcontractor agreements with Waterlink, Calgon, and Barnebey arising out of their alleged negligence in failing to properly train and supervise Plaintiff. TWT, in Count Three, seeks contractual defense and indemnification from TJO arising out of their contract to perform services. Lastly, in Count Four, TWT seeks joint tortfeasor contribution or indemnification from HCR*fn7 as a result of HCR's design plans and specifications that allegedly called for pipes to emerge from the hole into which Plaintiff fell.

Before the Court are TWT's motion for summary judgment dismissing Plaintiff's Complaint, Conoco's motion for partial summary judgment on its cross-claim against TWT, and Hartford's motion to dismiss both TWT's Third-Party Complaint and the cross-claims of all parties for failure to state a claim. For the reasons set forth below, the Court will deny all of the motions.

I.

On March 5, 2004, Plaintiff was injured on the property of a gas station owned by Conoco, located on Route 9 in Manalapan, New Jersey ("the site"). (Pl. R. 56.1 Stat. ¶¶ 1-2, 8). At that time, Conoco was in the process of remediating gasoline contamination at the site. (Id. ¶¶ 1-2). Conoco contracted with TWT to conduct testing and remediation of groundwater at the site pursuant to a Consulting Agreement. (Pl. Ex. B at 54:4-21). In order to accomplish this task, TWT maintained parts of a groundwater treatment system and soil vapor extraction system located inside a shed on the site. (Pl. R. 56.1 Stat. ¶ 3).

As part of the site remediation, TWT independently hired Barnebey to maintain a carbon filtration vessel that was part of the groundwater treatment system. (TWT R. 56.1 Stat. ¶ 2). At the time of the accident, Plaintiff and a co-worker, Timothy Savage, both employees of Barnebey, were given the task of vacuuming and re-bedding the carbon tanks located in the shed. (Pl. R. 56.1 Stat. ¶¶ 1, 4). While Savage had been to the job site on previous occasions, this was Plaintiff's first time. (Id. ¶ 4). Prior to beginning work, Plaintiff and Savage met with a TWT technician, who unlocked the shed and reviewed the site's health and safety plan.*fn8 (Id. ¶¶ 5-6). According to TWT's former owner, Phillip Brilliant, TWT would keep the shed locked at all times except when work was being performed inside. (Pl. Ex. B at 120:3-13). He testified that a TWT technician was always on site when Barnebey employees vacuumed and re-bedded the carbon tanks and that the technician's role was to open the shed, go over the health and safety plan, and make sure that the job was completed. (Id. at 124:17-24).

Inside the shed, located near the carbon tanks, was a hole in the ground, created as part of a sub-slab ventilation system on the adjacent property.*fn9 (Pl. R. 56.1 Stat. ¶¶ 8-9). Arising out of the hole were two pipes. (Id. ¶ 9). Plaintiff testified that the TWT technician pointed out the hole, which Plaintiff was able to see, and had Plaintiff sign a safety form. (TWT Ex. B at 69:22-70:24; 87:24-88:2). Once the TWT technician left, Plaintiff testified that he and Savage were left to their discretion as to how they vacuumed and re-bedded the carbon tanks. (Id. at 174:8-23).

While performing the duties with the carbon tanks in the shed, Plaintiff stepped into the hole and was injured. (Pl. R. 56.1 Stat. ¶ 8). According to Plaintiff, Savage had placed a lid on top of a vessel in the shed. When the lid began to fall, Plaintiff allegedly moved to catch it, despite the fact that he knew a hole was between himself and the vessel. (TWT Ex. B at 84:6-11; 89:23-90:14). In the act of trying to catch the lid, Plaintiff stepped into the hole. (Id. at 93:12-24).

II.

"Under Rule 56(c), summary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)).

In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). "'With respect to an issue on which the nonmoving party bears the burden of proof, the burden on the moving party may be discharged by 'showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case.'" Conoshenti v. Pub. Serv. Elec. & Gas, 364 F.3d 135, 145-46 (3d Cir. 2004) (quoting Celotex, 477 U.S. at 325). The role of the Court is not "to weigh the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.