Summary
holding that plywood boards placed over wet grass qualify
Summary of this case from Collins v. Olin CorporationOpinion
March 8, 1996
Appeal from the Supreme Court, Erie County, Flaherty, J.
Present — Green, J.P., Pine, Fallon, Callahan and Boehm, JJ.
Order modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Gerald Cottone (plaintiff), an employee of a subcontractor hired to lay sod around a running track at a stadium under construction, was injured while carrying rolls of sod. Because the ground was muddy due to drizzle, plaintiff's employer asked the general contractor for some plywood to construct a walkway. As plaintiff walked on the wood, it became muddy and wet. Plaintiff slipped and fell twice in the morning and was injured when he fell again in the afternoon.
Supreme Court erred in denying that part of the motion of The Pike Company, Inc. (defendant) seeking to dismiss the Labor Law § 200 cause of action. The dangerous condition arose from the subcontractor's methods, and defendant did not exercise any supervisory control over those methods ( see, Comes v New York State Elec. Gas Corp., 82 N.Y.2d 876; Mamo v Rochester Gas Elec. Corp., 209 A.D.2d 948, lv dismissed 85 N.Y.2d 924). Further, defendant, a general contractor, had no duty to protect against readily observable conditions ( see, Gasper v Ford Motor Co., 13 N.Y.2d 104, 110, mot to amend remittitur granted 13 N.Y.2d 893; McGrath v Lake Tree Vil. Assocs., 216 A.D.2d 877).
The court properly denied summary judgment to both parties on the Labor Law § 241 (6) cause of action ( see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 502, n 4). Plaintiffs alleged a violation of Industrial Code (12 N.Y.CRR) § 23-1.7 (d). Contrary to defendant's contention, neither that section nor our decision in Durfee v Eastman Kodak Co. ( 212 A.D.2d 971, lv dismissed 85 N.Y.2d 968) requires that the work surface be elevated before an employer's duty is triggered. In addition, we cannot agree with defendant that water and mud are integral parts of the walkway ( cf., Adams v Glass Fab, 212 A.D.2d 972), and that the installation of sod around a running track under construction is not an activity protected under Labor Law § 241 (6) ( see, Jock v Fien, 80 N.Y.2d 965, 968).
All concur except Pine and Boehm, JJ., who dissent in part in accordance with the following Memorandum.
We conclude that Supreme Court erred in denying defendant's motion for summary judgment on the Labor Law § 241 (6) cause of action. To establish defendant's liability under that statute, plaintiff must prove that defendant violated a rule or regulation of the Commissioner of Labor setting forth "a specific standard of conduct as opposed to a general reiteration of common-law principles" ( Adams v Glass Fab, 212 A.D.2d 972, 973). Plaintiff alleged a violation of Industrial Code (12 N.Y.CRR) § 23-1.7 (d), which provides: "Employers shall not suffer or permit any 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." (Emphasis added.)
In our view, the mud upon which plaintiff slipped does not constitute a foreign substance within the meaning of the regulation. The ground at the construction site consisted of dirt that had turned to mud because of rain. By putting plywood on the ground, the contractor attempted to improve safety conditions. If the contractor had left the mud uncovered, no liability would have attached under Labor Law § 241 (6) and the Industrial Code ( see, Stairs v State St. Assocs., 206 A.D.2d 817). To impose liability here is to discourage the adoption of safety measures, which is contrary to the purpose of Labor Law § 241 (6).
We do not reach the further issue whether the regulation applies only to elevated working surfaces, as defendant contends.