Opinion
99-CV-02046.
March 31, 2004
DAVID P. DOHERTY, ESQ., ALI, PAPPAS COX, P.C., Syracuse, New York, Attorneys for Plaintiff.
MAUREEN A. MACPHERSON, ESQ., LAW OFFICES OF DAVID D. MAHONEY, Syracuse, New York, Attorneys for Defendant and Third Party Plaintiff.
LOUIS J. VIVIANI, ESQ., COSTELLO, COONEY FEARON, LLP, Syracuse, New York, Attorneys for Third Party Defendant.
BACKGROUND
Plaintiff instituted this personal injury action in the New York State Supreme Court, Onondaga County, on October 1, 1999. Defendant was served on or about November 19, 1999, and, on November 24, 1999, filed a Notice of Removal pursuant to 28 U.S.C. § 1441(a), removing the action from the New York State Court to the United States District Court, Northern District of New York on the basis of diversity jurisdiction. Removal is proper in this case because Plaintiff is a resident of New York State. Defendant is a foreign corporation and the amount in controversy is in excess of $75,000, exclusive of interest and costs. 28 U.S.C § 1332(a)(1). A federal court sitting in a diversity case must apply state substantive law and federal procedural law. Erie Rail Road v. Tompkins, 304 U.S. 64, 58 So. Ct. 817, 82 L.Ed. 1188 (1938).
This action concerns an incident that took place on April 9, 1997, at Defendant Anheuser-Busch's brewery in Baldwinsville, New York. On that date, plaintiff was working as an apprentice employee of Third Party Defendant Industrial Contracting, which had a subcontract with general contractor Colonial Rigging and Contracting Corp., to do certain renovation work in the brewery building. Plaintiff asserts that during the course of his employment, he slipped and fell while climbing a stairway in the brewery and that his fall occurred as a result of Defendant negligently allowing a slippery foreign substance to accumulate on the stairs. Defendant, in turn, instituted a third party action against Third Party Defendant, Industrial Contracting, which seeks indemnity and/or contribution against the claims made by Plaintiff against Defendant.
Plaintiff's complaint sets forth cause of action in common law negligence as well as violations of New York Labor Law § 200 — General Duty to Protect Health and Safety — and § 241(6) — Construction, Excavation and Demolition Work Safety.
Currently before the court are two motions for summary judgment pursuant to Rule 56 of the Fed.R.Civ.P. The first by Defendant for dismissal of Plaintiff's complaint, the second by Third Party Defendant for dismissal of the Third Party complaint. Opposition has been made to each motion.
DISCUSSION
A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate an absence of triable issues of fact. Failure to make such a prima facie showing requires a denial of the motion, regardless of the adequacy of the opposing papers. Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof sufficient to establish the existence of material issues of fact which require a trial of the action.Alaverez v. Prospect Hospital, 68 N.Y.2d 320, 325, 508 N.Y.S.2d 923, 925 (1986).
Plaintiff maintains that during the morning of April 9, 1997, he and another employee moved materials from their work shack location to the brewery's "tank floor" where the work renovation was being performed. The transported materials carried included bags of silica sand, some of which were leaking their contents through tears or rips in the bags. The silica sand was being mixed with epoxy at the work site for use on the project. Silica sand is a slippery substance and the leakage from the porous bags fell upon the stairway used by Plaintiff and his co-worker when transporting it. This spillage of the silica sand allegedly caused Plaintiff to later slip and fall on the stairway.
Plaintiff further asserts that in addition to transporting the bags of silica sand that morning, he also mixed epoxy that was to be used in the work that morning. He had not previously worked with epoxy and did not know that working with some forms of epoxy might have side effects on certain people. He claims that the epoxy emitted an odor that made him dizzy and, he had not been given any respiration equipment or prior training with which he could have alleviated the condition.
A review of Plaintiff's deposition and supporting affidavit testimony discloses that, throughout the morning, he had carried bags of silica sand up the stairway connecting the work shack to the "tank floor" work site; that rips or openings in a lot of the bags carried caused the silica sand to leak upon the stairway; that he was aware that this was taking place and that silica sand debris were accumulating upon the stairway and had not been removed at the time he slipped and fell while returning from a short lunch period. In his deposition testimony of December 28, 2002, plaintiff states at page 102 that, "I do not know what caused me to fall."
The supporting affidavit of Charles Kratz, the job foreman at the work site on the date of Plaintiff's fall, avers that he was sure that some silica sand came free from its bags as it was being carried up the stairway.
Under common law negligence principals, and pursuant to Labor Law § 200, an owner has a duty "to provide workers with a reasonably safe place to work." Lombardi v. Stout, 80 N.Y.2d 290, 590 N.Y.S.2d 55 (1992). However, for an owner to be held liable under this section, a plaintiff must show that the owner supervised or controlled the work performed or that the owner had actual or constructive notice of the unsafe condition. Da Bolt v. Bethlehem Steel Corporation, 92 A.D.2d 70, 72, 459 N.Y.S.2d (4th Dept. 1983)."Where the alleged defect or dangerous condition arises from the contractors methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or Labor Law § 200." Comes v. New York State Electric Gas Corporation, 82 N.Y.2d 876, 877, 609 N.Y.S.2d 168 (1993).
Although the construction manager who exercised general supervisory authority at the work site may have been employed by the Defendant, this was insufficient to demonstrate that it exercised the level of supervision and control over the injured plaintiff's work necessary to impose liability under Labor Law § 200. Denis v. City of New York, 304 A.D.2d 611, 758 N.Y.S.2d 661 (2d Dept. 2003). Furthermore, including in the general supervision of the work the right to stop the contractor's work if a safety violation is noted, or to ensure compliance with safety regulations, does not amount to supervision and control of the work site necessary to impose liability on the owner pursuant this statute. Warnitz v. Liro Group, 254 A.D.2d 411, 678 N.Y.S.2d 910 (Dept. 1998).
The evidence shows that Plaintiff and his fellow worker created the silica sand accrual on the stairway and that he had actual knowledge of it. The record does not indicate that the Defendant played any role in the method plaintiff's employer chose to transport the silica sand or in any way oversaw the operation. In those situations where the alleged defect or dangerous condition arises from the contractors methods and the owner exerts no supervisory control over the work, no liability attaches to the owner under common law or under Labor Law § 200. Comes, 82 N.Y.2d at 877, 609 N.Y.S.2d 168.
Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon owners and contractors "to provide reasonable and adequate protection and safety" to all persons employed in areas in which construction, excavation, or demolition work is being performed. Rizzuto v. L.A. Wegner Contracting Co. Inc., 91 N.Y.2d 343, 347, 670 N.Y.S.2d 816, 818 (1998).
To prevail on a cause of action asserted under Labor Law § 241(6), a plaintiff is required to plead and prove the violation of a specific rule or regulation promulgated by the Commissioner of the Department of Labor. Olson v. Pyramid Crossgates Company, 219 A.D.2d 706, 708, 738 N.Y.S.2d 430 (Dept. 19). Since plaintiff has failed to articulate the violation of any particular rule or regulation "containing specific commands and standards," Baird v. Lydall, Inc., Manning Division, 210 A.D.2d 577, 578, 619 N.Y.S.2d 800 (3rd Dept. 1994), the court will dismiss plaintiff's cause of action predicated upon Labor Law § 241(6). Keegan v. Swissotel New York, Inc., 262 A.D.2d 111, 692 N.Y.S.2d 39, 42 (1st Dept 1999), lv. dismissed 94 N.Y.2d 858, 704 N.Y.S.2d 533 (1999).
Even without this oversight, summary judgment could still be granted. An owner or general contractor may, of course, raise any valid defense to the imposition of vicarious liability under § 241(6). Rizzuto, 91 N.Y.2d at 349, 670 N.Y.S.2d 816. Plaintiff has stated that he didn't know what caused him to fall. (Renna Depo. p. 102). While the affidavit of Charles Kratz states that he was aware that there was some spillage from some of the silica sand bags being transported up the stairs the morning of Plaintiff's accident, he does not specify that it was spilled at the accident site. John Naples, the person accompanying Plaintiff when he fell, when asked during his deposition if he noticed any kind of debris or materials of any kind on the stairway at the time of Plaintiff's fall, replied "No." (Naples Depo. p. 19) Additionally, safety compliance administrator, William R. White, investigated the accident and the site where it took place on the day it happened. The report of the accident he filed concluded that no unsafe conditions at the accident site could be determined from interviews he conducted. He further stated that if he had observed any foreign material on the stairs at the accident site or during his several daily inspection rounds, he would have had it removed at once by the contractor responsible for its being there. (White Depo. p. 26, 23). In the instant case, there is no evidence that there was silica sand on the stairway at the time Plaintiff's slip and fall occurred, consequently, negligence liability does not attach to Defendant for violation of § 241(6).
Plaintiff claims that he became dizzy from an odor from the epoxy he was working with during the morning before he fell. In his deposition testimony, he states that he complained about it to his foreman, but the foreman never got back to him. However, the record contains no record of fume producing epoxies ever being used at the job site, and there is no evidence, medical or otherwise, of how long Plaintiff's condition lasted, if it affected his work, whether any injury resulted from it or that it was in any way related to his fall.
Accordingly, the summary judgment motions of Defendant Anheuser-Busch, Inc., and Third Party Defendant Industrial Contracting, are GRANTED and the complaint is DISMISSED. IT IS SO ORDERED