Opinion
00-CV-0786E(F)
December 3, 2001
MEMORANDUM and ORDER
Plaintiff Francis Collins commenced this action for negligence August 2, 2000 in the New York State Supreme Court, Niagara County. Defendant Olin Corporation filed a notice of removal with the Clerk of this Court September 8, 2000. Plaintiff is a resident of New York and defendant is a Virginia corporation with its principal place of business in Connecticut. The amount in controversy exceeds $75,000 so this case could have originally been brought before this Court as a diversity action under 28 U.S.C. § 1332. Therefore, it was properly removed to this Court pursuant to 28 U.S.C. § 1441.
Plaintiff was injured November 2, 1999 while working as a union pipefitter at defendant's plant in Niagara Falls, N.Y. He was working as an employee of third-party defendant Danforth, rerouting pipe for an outdoor safety shower and repositioning an angle iron support bracket. It was raining and plaintiff slipped and fell on a slippery grate, injuring his knee while carrying the hundred pound angle iron bracket across a ten-foot by ten-foot stainless steel elevated platform over a sump pit. Plaintiff filed a Complaint alleging that this accident was caused by defendant's violation of section 200 of New York's Labor Law in having failed to provide plaintiff with a safe workplace. As an alternative theory of liability, plaintiff also alleges that his injury was caused by defendant's violation of section 241(6) of the Labor Law by its having failed to equip, guard, arrange, operate and conduct the area where plaintiff was to perform construction work. Following the filing of its answer, defendant filed a Third-Party Complaint against John W. Danforth Company alleging that, pursuant to a contract between defendant and Danforth, the latter was obligated to comply with all of defendant's safety provisions and requirements and had agreed to protect, indemnify and hold defendant harmless for any claim asserted by any of Danforth's employees arising out of or connected to the work being performed by Danforth. Defendant also alleges that Danforth possessed exclusive control over plaintiff's workplace and any liability against defendant would be exclusively vicarious.
Plaintiff's injuries to his knee consisted of a complete rupture of the anterior cruciate ligament of his right knee, a bucket handle tear of the medial meniscus of the right knee, an osteochondral defect of the lateral femoral condyle of the right knee and bruises, contusions, abrasions and surgical incisions. Collins's Answer to Interrogatories at ¶ 4.
Defendant then filed a motion on May 14, 2001 for summary judgment on plaintiff's section 200 claim on the grounds that defendant had exerted no actual supervisory control over the manner in which plaintiff performed his work and that the condition of plaintiff's work area was open and obvious. Defendant also moved for summary judgment on plaintiff's section 246(1) claim on the ground that the grating on which plaintiff allegedly slipped was not a walkway, passageway or elevated workplace and therefore was not covered by the statute.
Third-party defendant Danforth filed an Answer to the Third-Party Complaint and made its own motion for summary judgment on the following grounds — viz., (1) common law contribution and indemnification claims against it are barred by section 11 of New York's Workers Compensation Law because plaintiff has not sustained a "grave injury" as defined therein, (2) the cause of action for contractual indemnification fails to state a claim upon which relief can be granted because defendant has failed to allege any "release order" pursuant to which plaintiff then was an employee of Danforth, because plaintiff actually was working under a subcontract with Scrufari Construction Company, Inc. and because the indemnification provision violates section 5-322.1 of New York's General Obligations Law.
Rule 56(c) of the Federal Rules of Civil Procedure ("FRCvP") states that summary judgment "shall be rendered forthwith 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 judgment as a matter of law." The party seeking summary judgment bears the burden of demonstrating to the court the "lack of a genuine triable issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). A fact is material if it "might affect the outcome of the suit under the governing law" and is genuine if it "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, 477 U.S. 242, 247-248 (1986). When ruling on a motion for summary judgment the court must view the facts in the "light most favorable to the opposing party." Adickes v. Kress Co., 398 U.S. 144, 157 (1970). However, the opposing party may not rest upon conclusory statements in his pleadings, but rather is required to "set forth specific facts showing that there is a genuine issue for trial." FRCvP 56(e). Before addressing the parties' respective motions for summary judgment this Court must first decide which state's law is applicable to this case.
A federal court acting pursuant to diversity jurisdiction applies the substantive law of the forum state including its conflict of law rules. Day Zimmerman, Inc. v. Challoner, 423 U.S. 3, 4-5 (1975); Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496 (1941). However, where the parties, without addressing the issue of choice of law, rely on the law of the forum state in their briefs, this court should apply such law pursuant to "the principle that implied consent to use a forum's law is sufficient to establish choice of law * * *." Tehran-Berkely v. Tippetts-Abbett, 888 F.2d 239, 242 (2d Cir. 1989); see also American Fuel Corp. v. Utah Energy Development Co., 122 F.3d 130, 134 (2d Cir. 1997). In the present case, defendant and third-party defendant have argued for the application of New York law and plaintiff has relied upon New York law; accordingly, because by doing so the parties have expressly or impliedly consented to the application of the law of the forum state, this Court will apply New York law.
Section 200 of New York's Labor Law sets forth a "general duty to protect the health and safety of employees." "An implicit precondition to this duty is that the party charged with that responsibility [has] the authority to control the activity bringing about the injury." Comes v. New York State Electric and Gas Corporation, 82 N.Y.2d 876, 877 (1993). Defendant does not have a duty to protect plaintiff against a condition that may readily be observed. Ramski v. Zappia Enterprises, Inc., 645 N.Y.S.2d 364 (4th Dep't 1996).
Defendant has moved for summary judgment on this cause of action both on the grounds that the danger was obvious and that defendant did not have the authority to control plaintiff's work activity. Assuming — without deciding — that defendant did have such authority to control the activity, the undersigned opines that there is no genuine issue that the presence of a slippery condition would be obvious to plaintiff, especially given the fact that there were rainy conditions and that plaintiff stated in his deposition that he knew he had to be careful when walking across the grate. Collins Dep. at 58. Therefore, this Court grants defendant's motion for summary judgment on plaintiff's cause of action under section 200. Under Labor Law § 241(6), "All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places." Section 241(6) "imposes a non-delegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers." Comes at 878. "It reiterates the general common-law standard of care and then contemplates the establishment of specific detailed rules through the Commissioner's rule-making authority." Ross v. Curtis-Palmer Hydro-Electric Company et al., 81 N.Y.2d 494, 503 (1993). In order for an injury to fall within the coverage of section 241(6), plaintiff is "required to establish a violation of an implementing regulation setting forth a specific standard of conduct." Stairs v. State Street Associates, L.P., 615 N.Y.S.2d 478, 479 (3d Dep't 1994). The corresponding regulations promulgated by the Commissioner can be found in section 23-1.7 of New York's Codes, Rules and Regulations ("NYCRR") with subsection (d) being applicable to slippery conditions.
Plaintiff stated in his answers to interrogatories that, as an alternative to section 246(1) liability under NYCRR § 23-1.7(d), defendant would also be liable under NYCRR § 23-1.7(e) which is applicable to injuries caused by tripping over scattered debris. Defendant has moved for summary judgment on the ground that plaintiff has not plead that there were any scattered items would which have caused him to fall and plaintiff has admitted such in his deposition. Collins Dep. at 39. This Court finds that plaintiff has not raised a genuine issue as to whether his fall was caused by conduct by defendant which violated such aspect of section 23-1.7(d); therefore this Court will grant summary judgment on this ground.
NYCRR 23-1.7(d) provides:
"Employers shall not suffer or permit an employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing." Defendant has moved for summary judgment on the basis that section 23-1.7(d) is not applicable because the metal grating on which plaintiff slipped was not a "floor, passageway, walkway, scaffold, platform or other elevated working surface" under such regulation. New York Courts hold that an area so qualifies under the regulation as long as it is part of the workplace and manmade.
Rothschild v. Faber Homes, Inc., 668 N.Y.S.2d 793, 795 (4th Dep't 1998) qualified); Cottone v. Dormitory Authority of State of New York, 639 N.Y.S.2d 631, 632 (4th Dep't 1996) (holding that plywood boards placed over wet grass qualify); Whalen v. City of New York, 704 N.Y.S.2d 305, 308 (2d Dep't 2000) (holding that the staircase where the accident occurred was covered because it was a "passageway to the work site"). This Court is convinced that, under New York Law, such a platform would qualify under the regulation and therefore rejects this ground for summary judgment advanced by defendant.
Having rejected defendant's grounds for summary judgment on plaintiff's section 241(b) cause of action, this Court can now address defendant's indemnification action and defendant's and third-party defendant Danforth's grounds for summary judgment regarding the same.
As a preliminary matter the undersigned notes that, in addition to the grounds for summary judgment raised by defendant, Danforth has also moved for summary judgment on the ground that water on an open uncovered area is not a foreign substance so section 23-1.7(d) does not apply. Such argument is without merit because the section by its express terms applies to "[i]ce, snow, water, grease and any other foreign substance which may cause slippery footing." (Emphasis added). An employer should not be able to continue its work during inclement weather and then claim that it is not responsible for injuries caused by such conditions. Rothschild at 890-891. Therefore, Danforth's motion for summary judgment against plaintiff on the ground that water is not a foreign substance will be denied.
Danforth's remaining grounds for summary judgment have already been raised by defendant and are addressed above. The undersigned therefore will order that Danforth's motion shall be denied on every ground on which defendant's motion was denied and granted on every ground on which defendant's motion was granted.
Danforth has moved for summary judgment on defendant's common law indemnification claim on the ground that such is barred by section 11of New York's Worker's Compensation Law because plaintiff has not sustained a "grave injury." Under section 11, an employer cannot be held liable for contribution or indemnification to any third person for an employee's injuries occurring in the scope of employment unless such injuries are considered grave.
A "grave injury" is defined as:
"death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability."
Plaintiff has not suffered any of the injuries listed above so he has not suffered a grave injury. Therefore, summary judgment will be granted in favor of Danforth on defendant's common law indemnity cause of action.
In addition to common law indemnity, defendant has also asked for contractual indemnity arising out of Article XVII of the "Blanket Construction/Maintenance Agreement" (the "Agreement") between defendant and Danforth which provided that Danforth would indemnify defendant for losses due to bodily injuries arising out of work on the contract. Danforth has asked for summary judgment on this ground because, at the time of plaintiff's injury, he was working pursuant to a change order from Scrufari as a subcontractor and not pursuant to the Agreement. Defendant has replied by both opposing Danforth's motion for summary judgment and advancing its own motion for summary judgment on the grounds that the Scrufari subcontract also contains an indemnity provision which requires Danforth to indemnify defendant.
Article XVII states:
"* * * [Danforth] and Olin agree to indemnify and save harmless one another, against all loss or expense, including reasonable attorneys fees and related expenses, by reason of liability for damages because of bodily injury, including death, sustained by any person or persons, or on account of damage to property, arising out of or in consequence of the performance of the Work under this Agreement, to the extent such injury to persons or damage to property is due to the error, omission or act or misconduct of the indemnitor or any of its employees, agents, contractors or subcontractors."
The Scrufari Contract provides;
"ARTICLE NO. VII. INDEMNITY AGREEMENT
"To the fullest extent permitted by law, the Subcontractor [Danforth] shall indemnify, defend and hold harmless the Contractor [Scrufari], Owner [Olin] and Architect/Engineer from and against all claims, damages, loss, liability or expense of any kind, which is an any way connected with the work, to the extent such arises or results from any negligent act, omission, breach of statutory duty or obligation, on the part of the Subcontractor or any other person. This indemnity does not extend to that part of any claims, damages, loss, liability or expenses arising from the negligent acts or omissions of the Contractor.
"This indemnification includes, but is not limited to, any claims, damages, loss, liability or expense of any kind, which is in any way connected with the Work and which is based upon a breach of statutory duty or obligation on the part of the Contractor where the Contractor is not found to have committed a negligent act or omission."
Under the laws of New York, courts can give full effect to indemnity provisions in contracts — Kurek v. Port Chester Housing Authority, 18 N.Y.2d 450, 456 (1966) — and this Court sees no reason why such provision should not be given full effect here. Plaintiff's injuries are covered by the indemnification provision and, barring a reason not to give full effect to said provision, this Court will deny Danforth's motion for summary judgment and grant defendant's motion for summary judgment on the indemnification claim.
Danforth has argued that this Court should not give effect to the indemnification provision in the Scrufari subcontract because defendant did not allege said provision in its Third-Party Complaint and has not moved to amend its pleadings pursuant to FRCvP 15(a). Instead, defendant's Third-Party Complaint made reference only to the indemnification provision in its contract with Danforth. On June 20, 2001 defendant, as part of its Reply to Danforth's Opposition to Defendant's Motion for Summary Judgment, made a request pursuant to FRCvP 15(b) to amend its pleadings to conform to the evidence.
The Supreme Court has instructed the district courts that such motions are to be allowed even at this late stage in the litigation, Brandon v. Holt, 469 U.S. 464, 471 n. 19 (1985); therefore this Court will grant defendant leave to amend so as to allege the Scrufari subcontract as a basis for indemnification.
Danforth has next moved for summary judgment on defendant's contractual indemnification provision because, under section 5-322.1 of New York's General Obligation Law, a defendant is prohibited from being indemnified for its own negligence. New York's Court of Appeals has held that there must be a showing of negligence on the part of a defendant in order for the indemnification provision to be void. Itri Brick Concrete Corp. v. Aetna Casualty Surety Co., 89 N.Y.2d 786, 795 n. 5 (1997). There is nothing in the record to indicate that plaintiff's injuries were caused by anything other than his own negligence. Therefore, Danforth's motion for summary judgment on the grounds that indemnification would violate GOL § 5-322.1 will be denied.
In the absence of any reason to hold such indemnification provision invalid, this Court holds that defendant is entitled to summary judgment pursuant thereto and Danforth must, as a matter of law, "indemnify, defend and hold harmless" defendant.
Accordingly, it is hereby ORDERED that defendant's motion for summary judgment dismissing plaintiff's section 200 claim is granted, that defendant's motion for summary judgment on plaintiff's section 246(1) claim is denied, that Danforth's motion for summary judgment on defendant's common law indemnification claim is granted, that Danforth's motion for summary judgment on defendant's contractual indemnification provision is denied, that defendant's motion for summary judgment on its contractual indemnification provision is granted and that the parties shall appear in Part III in this Court on the 21st day of December, 2001 at 3:00 p.m., or as soon thereafter as the matter may be heard, to set a date for trial.