Opinion
No. 99 Civ. 8707 (JGK).
December 8, 2000.
OPINION AND ORDER
The plaintiff Jesus Felipe Jimenez ("Jimenez") brought this action against the City of New York ("the City") and the New York City School Construction Authority ("NYCSCA") for injuries sustained in an accident that occurred during the renovation of a school owned by the City. The City filed a cross-claim against NYCSCA and a third-party complaint against Morse Diesel International, Inc. ("Morse Diesel"), Zanis Construction, Inc. ("Zanis"), and Eliou Scopelitis Steel Fabrication ("Eliou") The plaintiff moves for partial summary judgment against the City and NYCSCA on his claims under New York Labor Law §§ 240(1) and 241(6). The City cross-moves for summary judgment against NYCSCA and the third-party defendants for indemnity and against the plaintiff on his claim under New York Labor Law § 200. For the reasons explained below, the plaintiff's motion is granted in part and denied in part. The City's motion is also granted in part and denied in part.
The City has not opposed the plaintiff's motion for summary judgment, but NYCSCA has opposed the motion.
I.
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "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." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Gallo v.Prudential Residential Servs. Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). "The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue finding; it does not extend to issue-resolution."Gallo, 22 F.3d at 1224. The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts which are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986).
In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold. Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). With respect to the issues on which summary judgment is sought, if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994)
II.
Jurisdiction for this action is based on diversity of citizenship jurisdiction pursuant to 28 U.S.C. § 1332(a)(1). The plaintiff is a citizen of the Dominican Republic. (Compl. ¶ 3.) The defendants, the City and NYCSCA, are municipal corporations organized under the laws of the state of New York with their principal places of business in New York. (Compl. ¶¶ 1, 2; NYCSCA Answer ¶¶ 1, City Answer ¶ 2). Thus, there is complete diversity of citizenship between the plaintiff and the defendants and the Court has jurisdiction over the action.
There is no dispute with respect to the following facts except where specifically noted. On February 1, 1999, the plaintiff, a construction worker at the time, was injured in an accident while working at the P.S. 40 construction site at East 19th Street, New York, New York. At the time of the accident, the City was the owner of P.S. 40. (Pl.'s 56.1 St. ¶¶ 1, 2, NYSCSA's 56.1 Counter-St. ¶¶ 1 1, 2; NYC 56.1 St. ¶¶ 1, 2; NYCSCA Third Party Defs.' 56.1 Counter-St. ("Third Party Defs.' 56.1 Counter-St.") ¶¶ 1, 2.)
NYCSCA, a public benefit corporation, is an independent entity that possesses the power to enter into contracts for the design, construction, reconstruction improvement, rehabilitation, maintenance, furnishing, and repairing of educational facilities owned by the City. (NYC 56.1 St. ¶¶ 3, 4; Third Party Defs.' 56.1 Counter-St. ¶¶ 3, 4.) On June 9, 1997, NYCSCA entered into a construction management agreement with the third-party defendant, Morse Diesel. (NYC 56.1 St. ¶ 5; Third Party Defs.' 56.1 Counter-St. ¶ 5; NYC Ex. J.) Pursuant to the agreement, and at the time of the accident, Morse Diesel was an agent of NYCSCA and was responsible for coordinating and managing the construction work at P.S. 40. Morse Diesel entered into a contract with the third party defendant Zanis for construction work at P.S. 40. The third-party defendant Eliou was a subcontractor for Zanis for the construction site at P.S. 40. (Pl.'s 56.1 St. ¶¶ 4-6, NYSCSA's 56.1 Counter-St. ¶ 4-6; NYC 56.1 St. ¶ 6-8; Third Party Defs.' 56.1 Counter-St. ¶ 6-8.)
At the time of the accident, the plaintiff was employed by Cavalier Construction Corporation, a subcontractor of Eliou actively engaged in construction work at P.S. 40, and not a party to this action. (Pl.'s 56.1 St. ¶ 7, NYSCSA's 56.1 Counter-St. ¶ 7; NYC 56.1 St. ¶¶ 9, 10; Third Party Defs.' 56.1 Counter-St. ¶ 9, 10.) The City was not a party to any of the agreements concerning the work performed at P.S. 40. (NYC 56.1 St. ¶ 11; Third Party Defs.' 56.1 Counter-St. ¶ 11.)
On the date of the accident, as instructed by their employer Cavalier Construction, the plaintiff and a co-worker, Lisandro Sanchez ("Sanchez"), positioned themselves outside the building on a sidewalk scaffold one story off the ground and lowered iron debris from the sixth floor of the building by means of a pulley system. (Pl.'s 56.1 St. ¶ 8, NYSCSA's 56.1 Counter-St. ¶ 8; Pl.'s Ex. A at 10.) Four workers on the sixth floor loaded the debris into a bucket. (NYSCSA's Dec. in Opp'n Ex. B at 10-11) The bucket was attached to the end of a rope which went around a pulley wheel. (NYCSCA's Dec. in Opp'n Ex. B at 10-12; Pl's. Ex. C at 17.) The pulley system consisted of the bucket, the rope and a pulley. (Pl's. Ex. C at 17.) It is not disputed that the pulley system did not have any additional weight reduction mechanism. The workers would release the bucket filled with debris from the sixth floor and the plaintiff and Sanchez would lower the bucket to the first floor by manually feeding the rope. (NYCSCA's Dec. in Opp'n Ex. B at 10-12; Pl.'s Ex. B at 7-B.)
During the course of this work, the workers on the sixth floor overloaded the bucket with debris and released the bucket. At that moment Sanchez let go of the rope and the plaintiff, who had held on to the rope, was lifted upwards and hit the scaffolding causing him to release the rope and fall to the first floor scaffold. (NYCSCA's Dec. in Opp'n Ex. B at 10-11; Pl's. Ex. B at 44-46.) The parties dispute the height from which the plaintiff fell.
III.
The plaintiff first moves for summary judgment on his claim under New York Labor Law Section 240(1).
New York Labor Law Section 240(1) provides that "[a]ll contractors and owners . . . shall furnish or erect, or cause to be furnished or erected . . . scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection" to construction workers employed on the premises. N.Y. Labor Law § 240(1). This provision "is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed," which is to impose the responsibility for safety practices on the owner and contractor, rather than on the workers. Rocovich v. Consolidated Medicine, 583 N.E.2d 932, 934 (N.Y. 1991) (internal quotation omitted) The duty imposed by Section 240(1) "is nondelegable . . . and an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work." Ross v. Curtis-Palmer Hydro-Electric Co., 618 N.E.2d 82, 85 (N.Y. 1993); Rocovich, 583 N.E.2d at 934; Haimes v. New York Tel. Co., 385 N.E.2d 601 (N Y 1978). Section 240(1), places absolute liability upon an owner or contractor where the plaintiff can establish that the statute was violated and the plaintiff's injury was proximately caused by the violation. See Melber v. 6333 Main Street. Inc., 698 N.E.2d 933, 934 (N.Y. 1998); Gordon v. Eastern Railway Supply, Inc., 626 N.E.2d 912, 914 (N.Y. 1993). Contributory negligence by the plaintiff is not a defense to a claim under Section 240(1) Stolt v. General Foods Corp., 613 N.E.2d 556, 557 (N.Y. 1993).
The protections provided by New York Labor Law Section 240(1) are aimed only at elevation-related hazards "that arise when the work site either is itself elevated or is positioned below the level where `materials or load [are] hoisted or secured.'" Ross, 618 N.E.2d at 85 (quotingRocovich, 583 N.E.2d at 932). The special hazards of working at an elevation differential "are limited to such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured." Id. "In other words, Labor Law § 240(1) was designed to prevent those types of accidents in which the . . . protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person." Id.
NYCSCA argues that the hoisting mechanism provided the plaintiff was adequate under Section 240(1) because it prevented the plaintiff from being struck by falling objects. NYCSCA further argues that the accident was proximately caused by human error due to the overloading of the bucket by the workers on the sixth floor and not by the lack of proper safety devices.
NYCSCA's arguments are without merit and do not raise any genuine issues of material fact. At the time of the incident the plaintiff was performing hoisting work on an elevated work site which was in turn positioned below the level where the load in the bucket was being loaded. The plaintiff and Sanchez were acting as counterweights for the bucket filled with debris by providing resistance on the rope against the forces of gravity. The weight of the bucket pulled the plaintiff in the air causing him to hit the scaffold and fall from a height to the scaffold on the first floor. The plaintiff was injured as a result of this fall. The differential between the work area where the plaintiff was and the level from which the debris was lowered required the use of a pulley system. The operation of gravity on that system resulted in the plaintiff's injury. It pulled the bucket down and the plaintiff, holding onto the pulley system, was pulled up and then, after crashing into the upper scaffold, fell to the ground. These were gravity related risks within the contemplation of section 240(1)
Moreover, although many accidents covered by Labor Law Section 240(1) involve initial falls from heights by a worker or a worker being struck by a falling object, New York courts have applied the statute to situations where workers are "pulled" and sustain injuries as a result, so long as the injury was caused by an elevation differential which created a gravity-related risk. See e.g., Lacey v. Turner Construction Co., 713 N.Y.S.2d 207, 208 (App.Div. 2000) (granting the plaintiff's motion for summary judgment on Section 240(1) claim where the plaintiff injured his back, finding that the fact that the plaintiff did not fall was irrelevant so long as the injury was gravity-related); Mattison v. Wilmott, 645 N.Y.S.2d 122 (App.Div. 1996) (finding that the plaintiff set out sufficient issues of fact to avoid summary judgment for the defendant under § 240(1) where the plaintiff, while lifting 10-gallon cans from ground level to the roof of a building with a rope tied to the cans, was pulled forward into a restraining wall, injuring his stomach);Wensley v. Argonox Construction Corp., 644 N.Y.S.2d 355, 357 (App.Div. 1996) (holding that § 240(1) applied where a worker's arm was violently stretched when a piece of roof he was holding fell before he could let go); Mattesi v. Tishman Speyer Properties, L.P., QDS 22702070, 223 N.Y. L.J. 23, at 30 col. 1 (N.Y.Sup.Ct., N.Y. Co. Feb. 3, 2000) (granting summary judgment under § 240(1) where object falling from a height injured the plaintiff by pulling the plaintiff into the object with the force of gravity, rather than by hitting him); Casal v. Presbyterian Hospital in the City of New York, QDS: 42701657, 222 N.Y. L.J. 75, at 33 col. 5 (N Y Sup.Ct., N.Y. Co. Oct. 14, 1999) (finding that the violent stretching of the injured plaintiff's spine while trying to keep from falling out of ceiling was gravity related and covered under § 240(1) despite the fact that the plaintiff did not actually fall). In this case, the plaintiff was pulled up as a result of an elevation differential and fell back down as a result of that differential. Thus, this accident fits within the ambit of Section 240(1) because the harm directly flowed from the application of the force of gravity upon the bucket holding the debris, which then pulled the plaintiff up until he himself hit the scaffold and then fell to the ground.
Two of the items enumerated in Labor Law Section 240(1) are pulleys and ropes, which were involved in the plaintiff's accident. The plaintiff has presented evidence that the hoisting mechanism used here consisted solely of a rope, a pulley, and a bucket and did not have a weight reduction mechanism. NYCSCA does not present evidence to dispute that the hoisting mechanism did not have a weight reduction mechanism and conceded at oral argument of these motions that there was no weight reduction mechanism on the pulley system. In addition, the project manager for the third-party defendant Zanis admitted that the hoisting mechanism used here was not designed for this work and that its use for this purpose constituted "a dangerous work practice" and was unauthorized. (Pl's. Ex. D at 13, 15-16.) At the time of the accident, the plaintiff was performing work at a site which exposed him to the type of hazards that the use or placement of the safety devices set forth in New York Labor Law Section 240(1) was designed to prevent. The hoisting equipment provided — a rope, a pulley and a bucket — was clearly inadequate "to shield the injured worker from harm directly flowing from the application of the force of gravity" to the bucket since it did not provide proper protection to prevent the plaintiff's injury. Ross, 618 N.E.2d at 86. NYCSCA's effort to avoid liability by blaiming the plaintiff's co-workers is without merit. Although the plaintiff's co-workers overloaded the bucket, the failure to provide a proper safety device, such as a pulley with a weight reduction mechanism, was a substantial cause of the events that produced the plaintiff's injury. The risk of injury lack of such a safety device was clearly foreseeable and the conduct of the co-workers was not such an extraordinary event as to constitute a superceding cause relieving the defendants of liability for violating the statute. See Gordon, 626 N.E.2d at 915-96. Accordingly, the plaintiff's motion for summary judgment against the City and NYCSCA based upon New York Labor Law Section 240(1) is granted.
The principal case upon which NYCSCA relies on for the proposition that human error should relieve it of responsibility, Ortiz v. New York City School Construction Authority, Ind. No. 19577/92 (N.Y.Sup.Ct., Kings Co. Mar. 8, 2000), does not support NYCSCA's contention. In that case, the Court found that, although the plaintiff was injured when his foot became stuck in a net that his co-workers were raising and he was lifted off the ground, the plaintiff's injuries were only tangentially related to the effects of gravity because the accident occurred while the plaintiff was on the ground. See Ortiz, Ind. No. 19577/92 at 8. The Court specifically distinguished cases such as this where there is a gravity-related hazard. See Ortiz, Ind. No. 19577/92 at 9-10. Moreover, the Court found that, unlike this case, there was no evidence that the machine was defective or that it lacked any necessary safety device. Id. at 9.
III.
The plaintiff next moves for summary judgment on his claim under New York Labor Law Section 241(6). Section 241(6) provides in pertinent part:
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. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work . . . shall comply therewith.
N.Y. Lab. Law § 241(6). Labor Law Section 241(6) "imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers." Comes v. New York State Elec. Gas Corporation, 631 N.E.2d 110, 111 (N.Y. 1993); see also Ross, 618 N.E.2d at 86. A plaintiff may recover under Section 241(6) without showing that the owner or general contractor exercised supervision, direction or control over the work site. See Rizzuto v. L.A. Wagner Contracting Co., Inc., 693 N.E.2d 1068, 1070 (N.Y. 1998). To impose liability under this statute, a plaintiff must establish the violation of a specific, rather than a general, rule or regulation established by the Commissioner of the Department of Labor. See Ross, 618 N.E.2d at 86-87; Smith v. Homart Development Co., 666 N.Y.S.2d 218, 219 (App.Div. 1997). NYCSCA argues that the plaintiff has failed to provide sufficient evidence of the violation of a specific rule or regulation.
In support of his Section 241(6) claim, the plaintiff relies on 12 N.Y.C.R.R. 23-6.1(j). 12 N.Y.C.R.R. 23-6.1(j) specifically requires that hoist brakes shall be supplied for every material hoist and that all manually-operated material hoists "be equipped with an effective pawl and ratchet." 12 N YC.R.R. 23-6.1(j). New York courts have held that "[t]he duty imposed by . . . [ 12 N.Y.C.R.R. 23-6.1(j)] is sufficiently specific that its breach may serve as a ground for imposing liability pursuant to Labor Law § 241(6)." Carroll v. Metropolitan Life Insurance Co., 694 N.Y.S.2d 369, 371 (App.Div. 1999). In this case, the plaintiffs have offered evidence that the hoisting mechanism used by the plaintiff consisted of a rope, a pulley, and a bucket. There is no dispute that there was no pawl and ratchet or hoist brake. Thus, Labor Law Section 241(6) was violated.
The plaintiff, in his brief, also cites 12 N.Y.C.R.R. 23-6.1(d) (f). 12 N.Y.C.R.R. 23-6.1(d) provides:
Loading. Material hoisting equipment shall not be loaded in excess of the live load for which it was designed as specified by the manufacturer. Where there is any hazard to persons, all loads shall be properly trimmed to prevent dislodgment of any portions of such loads during transit. Suspended loads shall be securely slung and properly balanced before they are set in motion.12 N.Y.C.R.R. 23-6.1(d). This regulation "mandates a distinct standard of conduct, rather than a general reiteration of commonlaw principles, and is precisely the type of concrete specification" that New York Courts require. See Rizzuto v. L.A. Wegner Contracting Co., Inc, 693 N.E.2d 1068, 1072 (N.Y. 1998) (internal quotation omitted). In addition, New York Courts have found 12 N.Y.C.R.R. 23-9.7(c), a similarly worded provision regulating the loading of trucks, to be specific for purposes of Section 241(6). See Borowicz v. International Paper Co., 664 N.Y.S.2d 893, 896 (App.Div. 1997). Although the parties do not dispute that the container was overloaded, the plaintiff has not provided specific evidence with respect to the hoisting equipment's live load capacity for which it was designed and at oral argument of these motions, the plaintiff indicated that he was not relying on section 23-6.1(d).
12 N.Y.C.R.R. 23-6.1(f) requires that "[w]here an overhead hazard exists, the operator of the hoisting machine shall be provided with overhead protection equivalent to tight planking." This regulation sets forth a distinct standard of conduct sufficient to establish Section 241(6) liability. Cf. Sears v. Niagara County Industrial Development Agency, 685 N.Y.S.2d 558, 559 (App.Div. 1999) (concluding that 12 N.Y.C.R.R. 23-1.7(a)(1) requiring use of planks to regulate overhead hazards was sufficiently specific but finding no evidence that it applied). The plaintiff, however, has not presented any evidence with respect to how this provision of the Industrial Code was violated and has not establish how this provision is applicable to the facts in this case. There is no evidence that, even if the provision were violated, the violation was a cause of any injury to the plaintiff.
Although Section 241(6) was violated, summary judgment is inappropriate. "[A] violation of section 241(6) is merely some evidence which the [trier of fact] may consider on the question of defendant's negligence." Rizzuto, 693 N.E.2d at 1071 (internal quotations omitted);see also Saft v. Tishman Construction Corp. of Manhattan, No. 93 Civ. 4140, 1999 WL 102766, at *6 (S.D.N.Y. Feb. 25, 1999). Once the plaintiff has shown that a specific regulation has been violated, "it is for the [trier of fact] to determine whether the negligence of some party to, or participant in, the construction project caused plaintiff's injury."Rizzuto, 693 N.E.2d at 1071. "An owner or general contractor may . . . raise any valid defense to the imposition of vicarious liability under section 241(6), including contributory and comparative negligence." Id. In this case, there are genuine issues of fact as to whether a participant in the construction project at P.S. 40 negligently caused the plaintiff's injury and as to the plaintiff's own comparative negligence. Thus, the plaintiff's motion for summary judgment on his claim under Section 241(6) is denied.
IV.
The City seeks summary judgment on its claims of common-law indemnification against NYCSCA and the third party defendants Morse Diesel, Zanis, and Eliou for the plaintiff's claims under Labor Law §§ 240 and 241(6).
In general, where an owner or contractor's liability is predicated solely on Labor Law §§ 240(1) and 241(6) despite its lack of supervision or control over the work being done or proof of negligence, the owner or contractor has a common-law right to indemnification from a subcontractor if the subcontractor's own negligence contributed to the accident or if the subcontractor had the authority to direct, supervise, and control the work giving rise to the injury. Lapi v. Rosewood Home Builders, 682 N.Y.S.2d 297, 298 (App.Div. 1998); Staley v. Crow Construction Corp., 669 N.Y.S.2d 764, 765 (App.Div. 1998); Terranova v. City of New York, 602 N.Y.S.2d 830, 831 (App.Div. 1993); Trombetta v. Stahl Real Estate Co., Inc., QDS:42702673, 223 N.Y. L.J. 116, at 30 col. 1 (N.Y.Sup.Ct., Kings. Co. Jun. 16, 2000). The City argues that it is entitled to common-law indemnification because it did not supervise or control the construction project and it was not negligent. Even if the owner or general contractor is free from fault, however, where more than one party may be responsible for the accident, summary judgment granting indemnification is improper. Freemen v. National Audubon Society, Inc., 663 N.Y.S.2d 625, 626-27 (App.Div. 1997); Edholm v. Smithtown DiCanio Organization, Inc., 629 N.Y.S.2d 86, 88 (App.Div. 1995). In this case, the City has not put forth any evidence showing that NYCSCA or any of the third party defendants negligently contributed to the plaintiff's accident or had authority to direct, supervise, or control the plaintiff's work. Cavalier, the plaintiff's employer, is not even a party to this action. Because there remain questions of fact as to which of the various contractors, if any, were responsible for the plaintiff's accident, the City's motion for summary judgment on its claims for common-law indemnification is denied.
The City also moves for summary judgment to dismiss the plaintiff's claim under New York Labor Law Section 200. N.Y. Lab. Law § 200. Labor Law Section 200(1) provides:
All places to which this chapter applies shall be constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons. The Board may make rules to carry into effect the provisions of this section.
N.Y. Lab. Law § 200(1). Labor Law Section 200 represents a codification of the common-law duty of an owner or contractor to provide construction workers with a safe place to work. See Comes, 631 N.E.2d at 111. To impose liability on the owner where a claim arises out of alleged defects or a dangerous condition arising from a contractor's methods, the plaintiff must establish that the owner had supervisory control over the operation. Id.; Ross, 618 N.E.2d at 88. The City alleges that it had no control or supervision over the P.S. 40 construction site. (NYC 56.1 St. ¶ 12.) The plaintiff has not opposed the City's motion and made it clear at the oral argument of these motions that the claim was abandoned. Therefore, the City's motion for summary judgment dismissing the plaintiff's claim under New York Labor Law Section 200 is granted.
CONCLUSION
For the foregoing reasons, the plaintiff's motion for summary judgment is granted with respect to the New York Labor Law Section 240(1) claim and denied with respect to the New York Labor Law Section 241(6) claim. The City's motion for summary judgment is denied with respect to the common-law claim for indemnification from NYCSCA and the third party defendants and granted with respect to the plaintiff's New York Labor Law Section 200 claim. The plaintiff's claim against the City pursuant to New York Labor Law Section 200 is dismissed.
SO ORDERED.