THE BLAME GAME
THE BLAME GAME
By: Megan Finger
In re Bridge Constr. Servs. of Fla.
2016 U.S. Dist. LEXIS 63411, 2016 WL 2755877 (S.D.N.Y. May 12, 2016).
This case stems from an incident where Jose Ayala fell off a barge and into the Hudson River. Tutor Perini Corporation (“Tutor Perini”) was the general contractor in a project to repair the Tappan Zee Bridge and hired Ayala to work on the HUGHES 660, a barge chartered from Hughes Bros., Inc. (“Hughes”). Tutor Perini also entered into a subcontract with Bridge Construction Services of Florida, Inc. (“Bridge”) to provide a tugboat needed for the project. Ayala was the sole deckhand on the HUGHES 660, and at some point in the process of moving the barge Ayala fell into the river. Both Tutor Perini and Bridge claimed that the other party caused the fall.Tutor Perini argued that Bridge was at fault because the tug used to move the HUGHES 660 was under the command of an unlicensed captain who did not maintain communication with Ayala throughout the moving process. Tutor Perini further claimed that the tug bumping the barge is what caused Ayala’s fall. Bridge claimed that Tutor Perini was responsible because Ayala failed to clear the ice from the HUGHES 660 which ultimately caused his fall. Bridge also claimed that Tutor Perini did not properly train Ayala.Bridge and Tutor Perini both settled with Ayala and subsequently sought indemnification from the other. The court had to decide which, if any party, was at fault and whether indemnity was owed. The contract between Tutor Perini and Bridge had a broad indemnification clause stating that Bridge would indemnify Tutor Perini for any liability stemming from its own negligence, but excluded indemnification for Tutor Perini’s negligence. The Court stated that each party at some point was responsible for Ayala’s safety on the date of the incident. Tutor Perini was responsible for training Ayala and making sure he followed safety procedures. Bridge on the other hand was responsible for providing a captain to properly operate its tug.After hearing the parties’ arguments, the Court concluded: “[i]t is clear by more than a preponderance of the evidence that a confluence of factors contributed to the fall, including the bump from the tug as well as the icy condition that had not been cleared by Ayala as it should have been.” Which party was ultimately to blame came down to the tug’s maneuvering on that day.The trial judge applied the Pennsylvania Rule to find that Bridge was statutorily negligent because the master of the tug was unlicensed which violated a Coast Guard regulation and the nature of the incident was the type the regulation was intended to prevent.The court also addressed an issue of spoliation of evidence as the master of the tug destroyed a log book. Recent amendments to Rule 37(e) of the Federal Rules of Evidence changed the rules relating to spoliation of Electronically Stored Information (“ESI”). It overruled the decision of the Second Circuit in Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99 (2d Cir. 2002) and the adverse inference of destroyed evidence. The amendment provides that “no adverse inference instruction is available unless the proponent of the request for the instruction demonstrates that the party who destroyed the ESI acted with the intent to deprive another party of the information’s use in the litigation.” (2016 U.S.Dist. LEXIS 63411 at *33). As the evidence in this case was a log book and not ESI and as the master destroyed it after litigation began, the amendment did not apply. Hence, the adverse inference applied.The Court then analyzed the process involved in moving the barge and found that at the time of the fall Ayala was standing on the edge of the barge in order to tie up to the side of the bridge. Without alerting Ayala, the captain of the tug began to move the barge before Ayala finished tying up to the bridge. The court noted that movement of a barge is complete only when the barge is tied up, and the movement of the HUGHES 660 was not complete at the time of Ayala’s fall, therefore his safety was Bridge’s responsibility. Because of this finding, the court stated that Bridge could not seek indemnification from Tutor Perini because Ayala’s injuries did not arise solely from Tutor Perini’s negligence.The Court ultimately concluded that Bridge’s negligence caused 40% of Ayala’s damages and Tutor Perini’s negligence caused 60% of Ayala’s damages. However, because Tutor Perini had already settled with Ayala for an amount exceeding its percentage of fault, Bridge was required to indemnify Tutor Perini for the excess damages.
