Opinion
May 18, 1993
Appeal from the Supreme Court, New York County (Walter M. Schackman, J.).
On May 14, 1988, plaintiff Carlo Cappiello was employed by third-party defendant New Superior Construction, a subcontractor at a large building project site under construction on Staten Island. A carpenter by trade, Cappiello's assigned duty that day called for him to build a plywood form around the base of an already hardened concrete structural column so that more fresh concrete could be poured in to strengthen it. While he was engaged in driving a masonry nail through the plywood and into the concrete, the nail suddenly flew back and hit him in the left eye. As a result, Cappiello suffered permanent loss of vision in that eye.
At the time of the accident defendant Telehouse was the owner of the site and defendant Kajima was the general contractor of the job. Plaintiffs brought this action against these defendants to recover damages for the injury based on negligence and under the Labor Law based on allegations that defendants failed in their duty to provide protective safety goggles.
Supreme Court erred in granting defendants' application for summary dismissal. At the very least, in our view, a viable cause of action raising triable issues was presented under Labor Law § 241 (6), and more particularly pursuant to the regulation promulgated by the Industrial Board of Appeals ( 12 NYCRR 23-1.8 [a]), which provides: "Eye protection. Approved eye protection equipment suitable for the hazard involved shall be provided for and shall be used by all persons while employed in welding, burning or cutting operations or in chipping, cutting or grinding any material from which particles may fly, or while engaged in any other operation which may endanger the eyes." (Emphasis added.)
Also germane is 12 NYCRR 19.4 (a), which in relevant part provides: "Employees engaged in operations or work which directly endanger the eyes, and other employees required to work in proximity to such operations or work, shall be provided with goggles except in those cases where the danger is effectively removed by the interposition of suitable screens or shields."
The IAS Court considered itself bound to direct dismissal by the then recent Fourth Department holding in Herman v Lancaster Homes ( 145 A.D.2d 926, lv denied 74 N.Y.2d 601) that because carpenters are not specifically mentioned in the cited regulations, there is no duty to furnish them with protective goggles. While we could factually distinguish Herman from the case before us (here the carpenter was joining wood to concrete and not wood to wood), we would in any event decline to adopt that Court's extremely narrow interpretation of the safety requirement which gives virtually no weight to the broad reference, in 12 NYCRR 23-1.8 (a), to employees "engaged in any other operation which may endanger the eyes."
Both the Herman decision and the IAS Court cited the Third Department case of Amedure v Standard Furniture Co. ( 125 A.D.2d 170, appeal withdrawn 70 N.Y.2d 708), which dismissed a claim based on an injury from a ricocheting nail in a wood-to-wood joining, despite Justice Harvey's acknowledgement that the plaintiff in Amedure, a carpenter with 25 years of experience, had testified that "a ricocheting nail was not an uncommon occurrence" (125 A.D.2d, supra, at 173). Obviously, what is "not uncommon" can become, depending on the circumstances, clearly foreseeable.
Thus the foreseeability of this unfortunate incident (i.e., whether Cappiello's activity presented an apparent eye hazard) presents a triable issue of fact. In reaching that conclusion, we follow and apply the reasoning contained in a later decision of the Third Department, Rapp v Zandri Constr. Corp. ( 165 A.D.2d 639, 643), which completely abandoned the analysis of Amedure, albeit sub silentio, and affirmed the potential liability of a general contractor for failure to furnish goggles to a carpenter's helper. There, a fellow worker, engaging in horseplay, fired a pneumatic staple gun at the carpenter's feet, and one of the staples ricocheted and struck the carpenter in the eye. (The record contained proof that the general contractor had knowledge of prior episodes of similar horseplay.)
While we find that defendants' motion for summary judgment should have been denied with respect to plaintiffs' claim under Labor Law § 241, we affirm insofar as plaintiffs seek alternatively to predicate liability on Labor Law § 240, which is limited to the provision of scaffolding, and section 200, which codifies the common law duty of owners and contractors to provide a safe place to work (Allen v Cloutier Constr. Corp., 44 N.Y.2d 290, 299). The obligation under section 200 of those in defendants' position to provide a safe work place does not ordinarily extend to negligent acts occurring as a detail of a subcontractor's work or arising out of a defect in the subcontractor's own plant, tools and methods (see, Persichilli v Triborough Bridge Tunnel Auth., 16 N.Y.2d 136, 145-147).
Inasmuch as we are reinstating the statutory claim under Labor Law § 241, the derivative claim for loss of consortium should also be reinstated (Spose v Ragu Foods, 124 A.D.2d 980, 981; see also, Wright v State of New York, 110 A.D.2d 1060, 1061, affd 66 N.Y.2d 452, 462).
Concur — Carro, J.P., Ellerin, Wallach, Kassal and Rubin, JJ.