Opinion
# 2013-018-408 Claim No. 118296 Motion No. M-82273 Cross-Motion No. CM-82367
01-14-2013
ROBERT BELL v. STATE OF NEW YORK
Synopsis
Summary Judgment granted to Defendant. Under Labor Law § 200, Defendant's general supervisory authority over work insufficient to sustain cause of action. Regulations Claimant asserted were violated on Labor Law § 241 (6) cause of action were not applicable to undisputed facts. Case information
UID: 2013-018-408 Claimant(s): ROBERT BELL Claimant short name: BELL Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 118296 Motion number(s): M-82273 Cross-motion number(s): CM-82367 Judge: DIANE L. FITZPATRICK STANLEY LAW OFFICES, LLP Claimant's attorney: By: Robert A. Quattrocci, Esquire LAW OFFICE OF THERESA J. PULEO Defendant's attorney: By: P. David Twichell, Esquire of Counsel Third-party defendant's attorney: Signature date: January 14, 2013 City: Syracuse Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant brings a motion for summary judgment. Claimant opposes the motion and seeks permission to amend the bill of particulars to assert a breach of Labor Law § 241 (6) based upon Industrial Code § 23-3.4 (c) (4).
Claimant filed a claim seeking damages for violations of Labor Law §§ 200 and 241 (6), the latter for violations of Industrial Code § 23-3.4 (c) (2), by permission of the Court on a late claim application pursuant to Court of Claims Act § 10 (6).The basic facts are not in dispute.
Bell v State of New York, (UID No. 2010-018-106 [Ct Cl, Fitzpatrick, J., Mar. 1, 2010]).
Claimant was a laborer employed by Vector Construction Corporation (hereinafter Vector) on a work site in the City of Oswego on April 21, 2008. Vector had contracted with the State of New York to perform the removal and demolition of the existing concrete bridge decking and support beams for the State Route 104 Bridge over the Oswego River. The work began approximately three weeks prior to Claimant's injury. Claimant began the work he was performing at the time of his injury on Friday, April 18, 2008. The contract work involved the removal of large concrete girders from the bridge, which were then moved to a fenced area just off of the bridge for demolition into smaller, transportable pieces. These beams had 5 inches of concrete with embedded metal rebar over stainless steel tendons. The beams were approximately 3 feet deep and 4 feet high from where they were resting on the ground. The concrete was broken up and the steel tendons and rebar were cut creating smaller beams that could be lifted and hauled off site. An excavator equipped with a "hoe-ram" attachment was used to break the beams into shorter pieces. The hoe-ram forcibly impacted the concrete causing it to break apart. Claimant's job was to sever any remaining joined rebar using an oxy acetylene torch. Claimant was injured when the hoe-ram contacted the concrete beam and a piece of the rebar sprang out of the concrete and pierced his bicep muscle. In the accident report, the vice-president of Vector, Bill Anderson, estimated that Claimant was standing approximately 8 feet away from where the hoe-ram was breaking up the concrete beam at the time of his injury, although Claimant estimated he was further away, approximately 15 feet.
Exhibit E, attached to Claimant's Cross-Motion, and Claimant's Deposition attached to Defendant's Affidavit of P. David Twichell, Esquire, dated November 20, 2009, Motion No. M-77167, Exhibit C, page 40, lines 18-20.
Defendant argues that the State cannot be held liable under Labor Law § 200 because the accident was not caused by the condition of the owner's property, but by the methods used to perform the work. It is Defendant's position that where the proximate cause of the injury is the contractor's methods of work, only when the owner exercises supervisory control over the manner and methods of the work, may liability be imposed. Defendant argues that, here, the State exercised no control over the methods or manner of work, although it did have general supervisory authority for compliance with the contract specifications and safety requirements.
In support of its position, the Defendant submits the deposition and affidavit of John F. DeOrdio, P.E., who was the State Engineer-in-Charge on this contract project. Including Mr. DeOrdio there were five State employees at the site: three inspectors, William Kick, Frank Brosch and Rick Stevens; and Joan Wheeler, an Engineer Tech or Office Engineer, who worked only in the office on site. Mr. DeOrdio testified that he is responsible for training and safety meetings for the State inspectors and acknowledged that as the Engineer-in-Charge he had both the duty and authority to stop the work if it did not conform to the contract specifications. In his deposition, he indicated that if he saw one of Vector's employees engaging in unsafe practices that he would contact Vector superintendent, Tim Potter, first and see that it was addressed. Mr. DeOrdio also disseminated to the contractors, by the inspectors, some of the safety bulletins the State received if the Safety Officer for the State, Frank Stanwyck,wanted him to, but it is the contractor who provided safety training for its employees. The State does require that contractors submit a safety plan, called a Project Health and Safety Plan, which Vector provided to the State. After Claimant's accident, Vector created a more specific safety plan describing the procedure for demolition of the concrete which was then included in the Project Health and Safety Plan. The procedure for demolition required employees to remain at least 25 feet away while the hydraulic hammer was breaking up the concrete. Mr. DeOrdio states that he had no input into this plan and was not a signatory; the State did not direct Vector in the method or procedure it should use to break the concrete into smaller pieces, instead Vector determined the means by which this job would be accomplished.
Frank Stanwyck was not on this construction site.
At the time of this accident, Mr. DeOrdio was in his field office working. None of the other Department of Transportation (DOT) inspectors on the job witnessed the accident or were at the location of the accident.
Although the State does not disclaim notice of Vector's procedures with three inspectors and an engineer in charge on site, supervisory control is denied. Willard Anderson, Vice President for Vector confirmed, by his affidavit,that Vector employees on the job took their work assignments and instructions from Vector superintendent, Tim Potter.
Second Exhibit A, attached to Answering Affidavit of P. David Twichell dated November 20, 2009, Motion No. M-77167.
The deposition of Tim Potter was also submitted by Defendant and it supports Mr. DeOrdio's testimony. Mr. Potter confirmed that there were State employees on this work site every day, the inspectors observed the work being done, and could, through Mr. DeOrdio, question any issues of safety, which Mr. Potter would investigate and address or stop the work altogether. He described this as following the chain of command. Mr. Potter testified that Vector employees took their instructions from him. This was confirmed by both Claimant and the other laborer who was performing the same job as Claimant on April 21, 2008, Julie Eaton. In fact, Ms. Eaton testified that after this accident, one of the State inspector's indicated she was doing something out of sequence, and she told him that he had to talk with her supervisor, Mr. Potter, since she did what Mr. Potter told her to do.
Mr. Potter also testified that Vector's Safety Officer, Pat Harrigan, drafted and submitted a safety plan to the State before the work began. If the State objected to anything in the safety plan, which Mr. Potter indicated commonly occurred, Vector would correct it and resubmit the plan to the State. Vector created the post-accident amendment to the plan for demolition. Mr. Potter was not exactly sure how the direction for employees to stay 25 feet away from where the hoe-ram was breaking up the concrete came from, but he said it was drafted by Vector employees. Vector also apprised the State before the work began about how it would perform the work and provided weekly scheduling information to the State. Mr. Potter would hold at least weekly safety meetings with Vector employees, "toolbox talks" and occasionally, Vector's insurance agent would also conduct safety meeting with Vector employees. State employees were not present during these meetings.
Mr. Potter also testified that in the process of cutting these girders away from the bridge, any exposed rebar would be difficult to see because it would be coated white with dust, or have a "slurry over it."Everyone knew rebar was in these girders, however, they just didn't know exactly where it was located.
Defendant's Affidavit of P. David Twichell, Esquire, dated November 20, 2009, Motion No. M-77167, Exhibit C, Potter deposition page 44.
Labor Law § 200 is a codification of the common law duty of landowners to maintain their property in a safe condition and provide a reasonably safe work environment. When the alleged wrongdoing involves the methods or procedures by which the work is being performed, rather than the condition of the premises, no liability will attach unless it is shown that the Defendant exercised supervisory control over the work and had notice, either actual or constructive, of the dangerous work practices (see Comes v New York State Elec. and Gas Corp., 82 NY2d 876 [1993]; Allen v Cloutier Constr. Corp., 44 NY2d 290, 299 [1978]).General supervisory authority to oversee and inspect the work product to assure compliance with the contract and to correct unsafe practices alone is not sufficient to sustain a Labor Law § 200 cause of action (Comes, 82 NY2d at 877; Fassett v Wegmans Food Mkts., Inc., 66 AD3d 1274 [3d Dept 2009]; Fisher v WNY Bus Parts, Inc., 12 AD3d 1138 [4th Dept 2004]). It is a question of whether an owner has sufficient control over the manner of the work such as if the owner has the authority to condition access to the construction site (Rizzuto v L. A. Wenger Contr. Co., Inc., 91 NY2d 343, 352-353 [1998]; Iacampo v State of New York, 267 AD2d 963, 963-964 [4th Dept 1999]), or bears the responsibility for the manner in which the work is to be done (Pilato v 866 UN Plaza Assoc., LLC., 77 AD3d 644 [2d Dept 2010]; Oretego v Puccia, 57 AD3d 54 [2d Dept 2008]; Byrd v Roneker, 90 AD3d 1648 [4th Dept 2011]). The determination is dependent upon the degree of supervision exercised over the method and manner of work performed (Affri v Basch, 13 NY3d 592 [2009]). Yet, neither "monitoring and oversight of the timing and quality of work" or a "general duty to ensure compliance with safety regulations or the authority to stop work for safety reasons" are sufficient to raise a question of fact (see McCormick v 257 W. Genesee, LLC, 78 AD3d 1581 [4th Dept 2010]).
In this case, the Defendant has met its burden of establishing that the State only directed what work would be done, the sequencing of that work, and observed the work to insure compliance with the State specifications. Despite the presence of State employees on site to insure that Vector complied with the contract, the testimony of Claimant, his fellow employee, and supervisors show that Vector made work assignments and determined how to perform the work. Vector also developed its own safety plan and the post-accident amendment, although the plan was required and both were reviewed by the State. Vector also provided all safety information and training to its employees. Most persuasive is the fact that both Mr. DeOrdio and Mr. Potter testified that if some unsafe practice was witnessed by a State inspector, the issue would be brought to Mr. DeOrdio as EIC who would then address the issue with Mr. Potter. This type of oversight has been found to not be sufficient supervision and control over the work to impose liability on an owner under Labor Law § 200 or the common law (see Robinson v County of Nassau, 84 AD3d 919 [2d Dept 2011] [ability to stop work for safety violations or insure compliance with safety regulations, not sufficient]; Timmons v Barrett Paving Material, Inc., 83 AD3d 1473 [4th Dept 2011], lv dismissed in part, denied in part 17 NY3d 843 [2011], [although plant supervisor oversaw timing and sequence of work, job safety, and could directly address Schneider employees for unsafe practices, not sufficient]; Byrd, 90 AD3d at 1650 [informing what work should be performed, but not how work should be performed nor the tools for performance, not sufficient]; McCormick, 78 AD3d at 1582 [monitoring and oversight of timing and quality of work, not sufficient]; McNabb v Oot Bros., 64 AD3d 1237 [4th Dept 2009] [where the owner had the authority to direct or control the work and safety on site but did not exercise it, not sufficient]). Here, there was no supportive evidence that indicated the State determined how the work would be done, exercised any authority to direct employees how to perform their job, even if a safety issue arose, or that it provided the tools or equipment. Defendant has established that it did not have or exercise supervision or control over the manner and method of work to warrant the imposition of liability under Labor Law § 200 or the common law.
It is Claimant's position that the State's notice of how the work was being performed and where Claimant was in relation to the hoe-ram imposed upon the State a duty to intervene to either stop the work or direct Claimant to stand further away from the hoe-ram, and the failure to do so means the state failed to provide a safe place to work. Yet, notice of unsafe methods of performance is not enough to hold an owner liable (Dennis v City of New York, 304 AD2d 611 (1st Dept 2003). Claimant also points to the State's post-accident involvement in reviewing the procedures for demolition of the concrete, and making suggestions for changes or inclusions into the amendment to the safety planto support its position that the State had the requisite authority over the means of the work. This does not raise a triable issue of fact that the State had the authority to control the manner of the work before this accident and exercised that control. Even Mr. Elander, Claimant's expert engineer did not point to any fact that evidenced the State's exercise of supervisory control over the method and manner of the work to be performed. In Iacampo (267 AD2d at 963-964), upon which the Claimant relies, the method or manner of work was not directly involved, but employees means of access to the work site was the source of the claimant's injuries in that case. My esteemed colleague, Hon. Nicholas V. Midey, Jr., specifically noted that the State could have made the access to the work site safer because it defined its own authority and control over the highway project in that case by statute and its construction supervision manual.
See Defendant's Exhibit B, (Exhibit 5, date October 25, 2011).
Iacampo v State of New York, Ct Cl, Midey, J., Cl. No. 86220, Sept. 30, 1998, affd 267 AD2d 963.
Based upon the foregoing the Labor Law § 200 cause of action must be dismissed.
Defendant also alleges that no violation of Labor Law § 241 (6) can be established as a matter of law, because the Industrial Code § 23-3.4 (c) (2) is not applicable to the facts of this case, and the clamshell attachment being used at this site was not a proximate cause of the accident. The testimony of Mr. DeOrdio, Mr. Potter, and the affidavit of Mr. Anderson, all support a finding that the clamshell attachment is not the equivalent of a hoe-ram attachment, and was not involved in the injury to Claimant.
Claimant argues that once a specific regulation has been alleged that is applicable to the facts of the case, the claim should be presented to the jury. Claimant further argues that although the claimshell bucket was not being used to break up the concrete bridge girder, it was involved in the operation to remove the debris from the site, and regardless of the type of mechanical equipment being used to conduct the demolition, 12 NYCRR 23-3.4 requires a zone of demolition which was not established here until after Claimant's injury.
To establish a cause of action for a violation of Labor Law § 241 (6), there must be a violation of a specific and applicable safety standard in the Industrial Code which is a proximate cause of the injuries (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]). Section 23-3.4 is entitled "Mechanical Methods of Demolition" and subsection (c) specifies the zone of demolition. Subsection (c) (2) provides "[w]here a claimshell bucket is being used in demolition operations, a zone of demolition shall be maintained within 25 feet on both sides of the line of travel of the bucket." Pictures of the "hoe-ram" attachment to the excavator and pictures of a clamshell bucket show these as completely different attachments. This is confirmed by the testimony of Tim Potter and the affidavit of Mr. Anderson. The affidavit of Richard L. Elander, Claimant's expert and a professional engineer, does not equate these two pieces of equipment, but rather opines that both present the same risks. But to establish liability under Labor Law § 241 (6), the specific safety regulation must be applicable and the proximate cause of the injury. In this case, Claimant has not raised a question of fact as to the applicability of this section to the hoe-ram attachment, and the claim shell bucket that was being used at this site was undisputedly not a proximate cause of Claimant's injury.
Although the Court found, as part of the late claim application, that Industrial Code § 23-3.4 (c) (3) was not applicable or violated by the facts presented, Claimant makes another effort to fit the claim under this section. Section 23-3.4 (c) (3) provides:
[w]here other mechanical devices or equipment are being used in demolition operations, a zone of demolition shall be maintained in the area into which the building or other structure or any portion thereof may fall. Such zone of demolition shall equal at least one and one-half times the height of the building or other structure or any portion thereof above the ground, grade or equivalent level.
By its precise language, this section seeks to protect workers from any portion of the building, structure, or portion thereof from falling. This girder was 4 feet high, and was resting on the ground. Claimant estimated, in his deposition, that he was approximately 15 feet away and the rebar that pierced Claimant's arm did not fall, but was caused to project out of the beam. As the Court previously found, the facts do not support the applicability of this section.
Claimant also seeks to amend his bill of particulars to assert a violation of Industrial Code § 23-3.4 (c) (4) which provides that "[o]nly persons essential to the operation of the demolition devices or equipment shall be suffered or permitted to enter any zone of demolition."
Leave to amend a bill of particulars should be freely granted unless the amendment is palpably improper or lacking merit (see CPLR 3025; Sampson v Contillo, 55 AD3d 591 [2d Dept 2008]). After the note of issue has been filed, however, judicial discretion to allow such amendment "should be exercised with caution." (Blake v Wieczorek, 305 AD2d 989, 990 [4th Dept 2003], quoting Jablonski v County of Erie, 286 AD2d 927, 928 [4th Dept 2001]). It is the movant's burden to make a showing that the amendment has merit, causes no prejudice to the defendant, and that there is a reasonable excuse for the delay in seeking the amendment until after the case was placed on the trial calendar (see id.; Sampson, 55 AD3d at 592; Dowd v City of New York, 40 AD3d 908, 911 [2d Dept 2007]). Claimant, here, has failed to meet this burden. No explanation is offered as to why, at this juncture, shortly before the scheduled trial, the amendment is sought. Sub-section 4 references the "zone of demolition" which is described in each of the preceding sub-paragraphs. None of those preceding sub-sections are applicable here, and it follows that sub-section 4 is also not applicable. Claimant has not established that this amendment has potential merit.
Accordingly, based upon the foregoing, Defendant's motion is GRANTED, and Claimant's Cross-Motion is DENIED. The claim is DISMISSED.
January 14, 2013
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following documents in deciding these motions:
M-82273
1) Notice of Motion.
2) Affidavit of P. David Twichell, Esquire, sworn to October 5, 2012, in support, with exhibits attached thereto.
CM-82367
3) Notice of Motion.
4) Affirmation of Robert A. Quattrocci, Esquire, in opposition to M-82273, and in support of CM-82367, with exhibits attached thereto.
5) Affidavit of Richard L. Elander, P.E., sworn to October 29, 2012, in opposition to M-82273.
6) Claimant's Memorandum of Law in opposition to M-82273 and in support of CM-82367.
7) Answering Affidavit of P. David Twichell, Esquire, sworn to November 20, 2009, in opposition, with exhibits attached thereto.
8) Reply Affidavit of P. David Twichell, Esquire, sworn to November 5, 2012, in support of M-82273, and in opposition to CM-82367, with exhibits attached thereto.