Opinion
100826/06.
Decided August 7, 2010.
Upon the foregoing papers, plaintiff's motion (No. 020) for summary judgment on the issue of liability under Labor Law §§ 240(1) and 241(6) is denied; the motions (Nos. 042 and 791) for summary judgment of defendants (a) Skanska USA Building, Inc. and (b) The City of New York and The New York City Economic Development Corp., respectively, are granted, in part, and denied, in part, in accordance with the following.
Plaintiff commenced this action to recover damages for personal injuries allegedly sustained on May 23, 2005 in the course of his employment as a welder for Transcontinental Steel Corp. (hereinafter, "Transcontinental") at the St. George Ferry Terminal on Staten Island. At the time of his injury, plaintiff's employer had been retained by the New York City Economic Development Corporation (hereinafter, the "EDC") to perform certain ironwork in connection with the St. George Intermodal Ferry Terminal Modernization Project. Skanska USA Building, Inc. (hereinafter, "Skanska") had been retained by the EDC as the construction manager for the project.
On the day of the incident, plaintiff was standing on top of a ten-foot scaffold, welding overhead structural steel beams. At his 50-h hearing and deposition, plaintiff testified that it was a very windy, sunny and hot day, and that while he was welding overhead, "it look[ed] like the breeze start[ed] catching fire, [his] mask [was] down and [he] couldn't see or smell anything." He further testified that next the back of his shirt, which had become untucked from his pants, "caught the fire". Plaintiff was wearing a safety harness and a welding jacket that did not cover the back of his shirt. According to plaintiff, sparks falling onto the wooden scaffold was "a typical thing that happens every day . . . usually a welder's clothes is always getting burn[ed]." Plaintiff's co-worker, Cooney, the designated "fire watch", was located on the ground below and was supposed to ensure that "nothing caught on fire." According to plaintiff, the person designated "fire watch" is charged with the duty of placing a fire extinguisher in a bucket on the scaffold. On the morning of the accident, there were two buckets on the scaffold, but while one contained his tools, the other was empty. After realizing that the end portion of the scaffold and the back of his shirt were on fire, plaintiff testified that he called out to the fire watch to no avail. He further testified that his safety rope "didn't [allow] much movement", and that he was unable to unhook it from the beam that he had "tied onto". This operated to impede his escape. Plaintiff further testified that he had not been provided with an independent safety line that could easily be detached. As a result, plaintiff claimed that he "couldn't get [him]self loose". He was "pacing" back-and-forth out of panic when the scaffold "started to get shaky" and tilt. At this point, plaintiff "decided to jump off" of the scaffold, intending "to roll [his body] on the floor". However, the safety cord which he had wrapped around the steel beam did not extend to the ground, so he ended up hanging from the lanyard, "swinging in the air" until his co-workers pulled him up onto the scaffold and released him. Plaintiff testified at his 50-h hearing that he jumped off the scaffold after his lanyard was detached, but, in his deposition testimony, plaintiff claimed that he was lowered to the ground by his co-workers. In any event, plaintiff admittedly was not injured in his descent. It is undisputed that plaintiff's employer provided him with the scaffold, welding jacket, safety line, harness and other tools he used on the day of the incident.
In moving for summary judgment dismissing the complaint as against it, defendant/third-party plaintiff Skanska maintains that pursuant to its "Consultant Contract" with the EDC, it was not responsible for the means, methods and procedures employed by Transcontinental in the performance of its work. Skanska further maintains that the safety devices which plaintiff used at the worksite functioned properly and prevented him from falling. In this regard, Skanska points out that plaintiff's burn injuries were caused by his welding, not by any gravity-related hazard. It is further argued that the Industrial Code provisions cited in plaintiff's bill of particulars are either too general in nature to support a finding of liability under Labor Law § 241(6), or are inapplicable to the facts of this case. In its third-party action, Skanska seeks contractual indemnification from plaintiff's employer, Transcontinental, under the terms of the latter's contract with the EDC. According to Skanska, any liability to which it may be subjected is attributable to the negligence of parties other than itself.
Defendants The City of New York and The New York City Economic Development Corp. (hereinafter, collectively, the "City") also move for summary judgment dismissing the complaint as against it on similar grounds, i.e., that the facts of this case do not support plaintiff's claims under either (1) Labor Law § 240(1), since plaintiff was not injured from an elevation-related hazard, or (2) Labor Law § 241(6), since the Industrial Code violations alleged by plaintiff are inapplicable to the facts or lack the required specificity to support a finding of liability. The City further contends that the record is devoid of any evidence that it had the authority to control the means, methods or manner of plaintiff's work.
Initially, it must be noted that the City's motion for summary judgment was served on February 8, 2010 which is more than sixty days from the filing of the note of issue in this action on November 4, 2009. Although no excuse has been proffered for its untimeliness, the motion will nevertheless be entertained by this Court since a timely motion for summary judgment had already been made by its codefendant, Skanska, on identical grounds ( see Grande v Peteroy , 39 AD3d 590 , 591-592). In any event, this Court could address the merits of the City's motion upon searching the record ( see Parrales v Wonder Works Constr. Corp. , 55 AD3d 579, 582).
Turning first to Labor Law § 240(1), it is familiar law that recovery thereunder is dependent upon plaintiff's ability to demonstrate that his or her injuries were proximately caused by a contractor or property owner's failure to furnish adequate scaffolding, ladders, pulleys, ropes and other safety devices that provide proper protection from gravity-related hazards ( see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 499-502). The duties articulated therein are held to be nondelegable and the liability imposed absolute when the breach thereof is found to be a proximate cause of an injury ( see Jock v Fien, 80 NY2d 965, 967-968).
Consonant with the foregoing, and notwithstanding that plaintiff's welding work required his presence at an elevation, the injuries he sustained resulted from an unrelated hazard, i.e., the sparks generated by his welding igniting a fire, rather than from the effects of gravity and the inadequacy or absence of enumerated safety devices ( see Rocovich v Consolidated Edison Co., 78 NY2d 509, 514-515; accord Melber v 6333 Main St., 91 NY2d 759, 763-764). Stated otherwise, a welder's risk of "getting burned" is not the kind of hazard which the protective equipment listed in Labor Law § 240 (1) is designed to avert ( see Rocovich v Consolidated Edison Co., 78 NY2d at 514; accord Melber v 6333 Main St., 91 NY2d at 764). Since it is undisputed that plaintiff was not injured as the result of his descent from the elevated work site, and that the burns he sustained flowed from other deficiencies in the methods and manner of his work, this injury is not within the purview of Labor Law 240(1) ( see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 501). Accordingly, any causes of action predicated upon an alleged violation of Labor Law § 240(1) must be severed and dismissed.
With regard to the alleged Labor Law § 241(6) claims, it is well settled that recovery thereunder is dependent upon a plaintiff's ability to demonstrate that his or her injuries resulted from an owner or contractor's violation of a concrete and specific safety provision of Rule 23 of the New York State Industrial Code ( 12 NYCRR §§ 23-1.1 et seq.) ( see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 501-502). Pertinently, the statutory duty imposed by these regulations has also been held to be nondelegable ( e.g., Long v Forest-Fehlhaber, 55 NY2d 154, 159; Allen v Cloutier Constr. Corp., 44 NY2d 290). As a result, if a viable claim under Labor Law § 241(6) has been asserted, the plaintiff need not establish that a defendant owner or contractor exercised supervision and control over his worksite in order to recover ( see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 502; cf. Labor Law § 200).
Applying the foregoing criteria to the case at bar, so much of the complaint as is predicated on an alleged violation of 12 NYCRR § 23-1.5 is insufficient to support a claim under Labor Law § 241(6), since this provision constitutes a general rather than concrete safety standard ( see Gasques v State of New York , 59 AD3d 666 , 668). As for the alleged violations of 12 NYCRR § 23-1.7 (Protection from general hazards), 12 NYCRR § 23-1.8 (Personal protective equipment), 12 NYCRR § 23-1.15 (Safety railing), 12 NYCRR § 23-1.16 (Safety belts, harnesses, tail lines and lifelines), 12 NYCRR § 23-[11.7] 1.17 (Life nets), 12 NYCRR § 23-1.26 (Lead fumes and dust from structural steel), 12 NYCRR § 23-1.30 (Illumination), 12 NYCRR § 23-2.1 (Maintenance and housekeeping) and 12 NYCRR § 23-5 (Scaffolding), it is the opinion of this Court that these regulations are either per se inapplicable to the facts of this case or that their alleged violation was not a proximate cause of plaintiff's burns ( see Osorio v Kenart Realty, Inc. , 35 AD3d 561 , 562-563; Piazza v Frank L. Ciminelli Constr. Co. , 2 AD3d 1345 , 1349; cf. Parrales v Wonder Works Constr. Corp., 55 AD3d at 582). Thus, defendants are entitled to summary judgment dismissing so much of plaintiff's Labor Law § 241(6) cause of action as is predicated upon the alleged violation of the above regulations.
The same cannot be said, however, of the purported violation of 12 NYCRR § 23-1.25, which pertains to "Welding and flame cutting operations". However, since plaintiff failed to make a prima facie showing that he was free from contributory or comparative negligence, a viable defense under Labor Law § 241(6) ( see Rizzuto v L.A. Wenger Constr. Co., 91 NY2d 343, 350), he is not entitled to summary judgment ( cf. Parrales v Wonder Works Constr. Corp., 55 AD3d at 582).
Finally, even if true, the cited violation of OSHA regulations (art 1926) may not be used as a predicate for Labor Law § 241(6) liability against a nonsupervising owner or general contractor ( see Rizzuto v L.A. Wenger Contracting Co., Inc., 91 NY2d at 351 [footnote]). Inasmuch as the papers before this Court are devoid of evidence that Skanska or the City exercised any supervision or control over plaintiff's welding work, these defendants are also entitled to summary judgment dismissing any claims predicated upon alleged violations of OSHA article 1926.
Turning to plaintiff's remaining claims, Labor Law § 200 is a codification of the common-law duty imposed upon an owner or general contractor to maintain a safe construction site ( see Rizzuto v L.A. Wenger Constr. Co., 91 NY2d at 352). In the instant matter, it is undisputed that plaintiff's injuries arose from the manner in which the work was performed ( see Gomez v City of New York , 56 AD3d 522 , 523), and not from any dangerous or defective condition inherent in the premises itself ( see generally Markey v C.F.M.M. Owners Corp. , 51 AD3d 734 , 736-737; Ortega v Puccia , 57 AD3d 54 , 61; Keating v Nanuet Bd. of Educ. , 40 AD3d 706 , 708). "[W]hen a claim arises out of alleged defects or dangers in the methods or materials of the work, recovery against an owner or the general contractor cannot be had under Labor Law § 200 unless it is shown that the party to be charged had the authority to supervise and control the performance of [plaintiff's] work" ( Ortega v Puccia, 57 AD3d at 61). In this context "[a] defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed" ( id. at 62).
In view of the foregoing, it is the opinion of this Court that defendants Skanska and the City have demonstrated, prima facie, that the sole party with the authority to supervise and control the means and methods of plaintiff's work was his employer, Transcontinental, as per its written contract with the EDC. More particularly, said contract provides, inter alia, that Transcontinental is responsible for the means and methods of construction, supervision of the work, safety procedures and compliance with OSHA and all federal, state and city safety and health-related codes, rules and regulations. In the absence of any evidence that he received instructions, directions or equipment from any of the defendants ( see Russin v Louis N. Picciano Son, 54 NY2d 311, 316-317), or that they exercised supervision or control over his welding work ( see Comes v New York State Elec. Gas Corp., 82 NY2d 876, 877-877; Gallello v MARJ Distribs., Inc. , 50 AD3d 734 , 735), plaintiff has failed to raise a triable issue of fact ( see McKee v Great Atlantic Pacific Tea Co., ___ AD3d ___, 2010 NY Slip Op 4153). Accordingly, defendants Skanska and the City are entitled to summary judgment dismissing plaintiff's Labor Law § 200 and common-law negligence claims against them, as well.
Consonant with the foregoing, any Labor Law liability that may ultimately be imposed upon defendant/third-party plaintiff Skanska could only be vicarious in nature based on the relevant statutes. Hence, Skanska is entitled to enforce the indemnification provisions in its favor as set forth in Transcontinental's contract with the EDC ( see Macedo v J.D. Posillico, Inc. , 68 AD3d 508 , 510-511), and is entitled to conditional summary judgment thereon.
Accordingly, it is
ORDERED, that plaintiff's motion for summary judgment on the issue of liability as against defendants under Labor Law § 240(1) and Labor Law § 241(6) is denied; and it is further
ORDERED, that so much of defendants' motions as are for summary judgment dismissing plaintiff's claims against them under Labor Law §§ 240(1), 200 and common-law negligence are granted; and it is further
ORDERED, that the like branches of the motions of these defendants as are for summary judgment dismissing plaintiff's claims under Labor Law § 241(6) are granted, except as to any claims predicated upon the alleged violation of 12 NYCRR § 23-1.25, which causes of action, if any, shall survive and continue; and it is further
ORDERED, that causes of action upon which summary judgment has been granted are severed and dismissed; and it is further
ORDERED, that so much of the motion by defendant/third-party plaintiff Skanska USA Building, Inc. as is for summary judgment against third-party defendant Transcontinental Steel Corp. a/k/a Transcontinental Contracting, Inc. for contractual indemnification is granted conditionally; and it is further
ORDERED, that the Clerk enter judgment accordingly.