Opinion
Civil Action No. CV-99-7401 (DGT).
May 1, 2000.
Sherri L. Plotkin, Esq., BARTON, BARTON PLOTKIN, L.L.P., Attorney for Plaintiffs Michael Greco and Monica Greco.
Brian J. Clark, Esq. (BC-8224), CLIFTON BUDD DeMARIA, LLP, Attorney for Defendant Staten Island University Hospital.
John F. Parker, Esq., MOUND, COTTON WOLLAN, Attorney for Defendant AIM Products, Inc.
Lorienton N.A. Palmer, Esq., WILSON, ELSER, MOSKOWITZ, EDELMAN DICKER LLP, Attorney for Defendant Soule Medical.
Robert A. Fitch, Esq., NEWMAN, FITCH, ALTHEIM, MYERS, P.C., Attorney for Defendant Med-Tec, Inc.
MEMORANDUM AND ORDER
Plaintiff Michael Greco ("Greco") brought this diversity action against defendant Staten Island University Hospital (the "Hospital"), after sustaining injuries during the five-year course of his employment at the Hospital in its Radiology Department. Greco alleges that his injuries were caused by the intentionally tortious conduct of the Hospital. In addition, Greco alleges that the Hospital violated New York Labor Law § 200 by failing to maintain a safe work environment. Finally, Greco's complaint includes a claim for his wife's loss of consortium.
Greco subsequently amended his complaint to name three additional defendants: AIM Products, Inc., Soule Medical, and Med-Tec — the alleged manufacturers and/or suppliers of the products with which Greco worked. See Compl. ¶¶ 18, 23, 24. Because this motion is brought only by the Hospital, however, this memorandum will address only Greco's claims against the Hospital.
The complaint also includes a claim for the Hospital's alleged violation of the Occupational Safety and Health Act ("OSHA"). See Compl. ¶ 59. Greco has since withdrawn the OSHA claim in recognition of the fact that OSHA does not provide a private right of action. See Pl.'s Mem. Opp'n Def.'s Mot. Dismiss Partial Summ. J. at 5 [hereinafter Pl.'s Mem].
The Hospital now moves for dismissal and/or summary judgment on the grounds that: (1) Greco is barred from bringing a judicial action against his employer by the exclusivity provisions of the Workers' Compensation Law because he has not adequately pleaded an intentional tort and, in the alternative, because he has already accepted workers' compensation benefits; (2) Greco cannot recover under Labor Law § 200 where he has already received Workers' Compensation benefits; and (3) his wife's claim for loss of consortium is derivative of Greco's underlying causes of action, and must be dismissed along with them. Additionally, the Hospital has moved, pursuant to Fed.R.Civ.P. 11, for sanctions and attorney's fees.
Background
Between January of 1994 and February of 1999, Greco worked as an employee of the Hospital as a physics assistant in the Radiation Oncology Department. See Compl. ¶¶ 40, 41, 43. His duties included working with various lead and lead-based products. See id. ¶ 42. Continuous contact with these lead products during the course of his employment allegedly caused him serious bodily injuries. See id. ¶¶ 42, 52. As a result of these injuries, Greco was awarded compensation, pursuant to New York Workers' Compensation Law § 11, after the Workers' Compensation Board (the "Board") determined in July of 1999 that Greco suffered "an occupational disease for lead poisoning." Def.'s Local R. 56.1 Statement, Ex. A (notice of decision).
Plaintiff alleges "permanent injury" to his head, limbs, body and nervous system as a result of which he has been "rendered sick, sore, lame and disabled." Compl. ¶ 55.
Despite his receipt of workers' compensation, Greco filed this complaint in November of 1999 against, among other defendants, the Hospital. His first cause of action is a claim of intentional tort, in which he alleges that the Hospital "intentionally and willfully" caused his injury by its failure to: advise him that the materials which he handled contained lead; provide him with protective gear; and train him how to handle such toxic materials. Compl. ¶¶ 48-52, 54. His second cause of action is a claim for relief for the Hospital's alleged violation of New York Labor Law § 200, which requires employers to provide their employees with a safe work environment. See id. ¶ 62. In addition, Greco's wife ("Mrs. Greco") seeks damages for loss of consortium. See id. ¶ 84.
Discussion (1) Intentional Tort
The Hospital brings two distinct challenges to Greco's intentional tort claim. First, the Hospital has moved to dismiss the intentional tort claim pursuant to Rule 12(b)(6) on the ground that it does not adequately plead an intentional tort so as to bring the claim within the intentional tort exception to workers' compensation exclusivity rule. Second, and in the alternative, the Hospital moves for partial summary judgment with respect to the intentional tort claim on the ground that Greco has elected his remedy for his injuries by accepting workers' compensation benefits. Each argument will be considered in turn below.
Greco did not plead receipt of workers' compensation benefits in his complaint. Therefore, because the Hospital's alternative argument based on Greco's receipt of benefits presents a matter outside the pleading, the Hospital has requested that its motion be treated as a motion for summary judgment with respect to this particular defense against Greco's intentional tort claim. See generally Fed.R.Civ.P. 12 (b) (providing that court may dispose of Rule 12(b)(6) motion under Rule 56 under certain circumstances). Plaintiffs have recognized the motion as such and have responded accordingly with a Local Rule 56.1 Counter-Statement. Since the plaintiffs have had a reasonable opportunity to present all material made pertinent by this prong of the Hospital's motion, the Hospital's alternative argument based on the receipt of benefits will be treated as a motion for partial summary judgment. See id.
a. Greco has not adequately pleaded an intentional tort.
The Hospital's motion to dismiss Greco's intentional tort claim is granted because plaintiff's allegations of wrongdoing by the Hospital do not meet the intentional-tort exception to the workers' compensation exclusivity rule. In general, "the liability of an employer [for workers' compensation] [is] exclusive and in place of any other liability whatsoever [to the injured employee]." N.Y. Work. Comp. Law § 11.
There is, however, an exception to the rule of exclusivity where the employee's injury results from his employer's intentionally tortious acts. See Acevedo v. Consolidated Edison Co. of N.Y., Inc., 189 A.D.2d 497, 500, 596 N.Y.S.2d 68, 71 (1st Dep't 1993); Briggs v. Pymm Thermometer Corp., 147 A.D.2d 433, 435, 537 N.Y.S.2d 553, 556 (2d Dep't 1989);Mylroie v. GAF Corp., 81 A.D.2d 994, 995, 440 N.Y.S.2d 67, 69 (3d Dep't 1981) ("[A]n intentional tort can give rise to a cause of action outside the ambit of the Workers' Compensation Law."); Finch v. Swingly, 42 A.D.2d 1035, 1036, 348 N.Y.S.2d 266 (4th Dep't 1973). To sufficiently plead an intentional tort that will "neutralize the statute's exclusivity," the plaintiff-employee must allege "an intentional or deliberate act by the employer directed at causing harm to the particular employee." Acevedo, 189 A.D.2d at 501, 596 N.Y.S.2d at 71. The plaintiff must be able to point to specific facts evidencing an intent to harm him. See Bulis v. Di Lorenzo, 142 A.D.2d 707, 708, 531 N.Y.S.2d 107, 108 (2d Dep't 1988).
Consequently, mere allegations that the defendant acted "willfully" or "intentionally," without "facts sufficient to establish" that the defendant's conduct was "deliberately" meant cause harm, will not defeat a motion to dismiss. Id. at 708, 531 N.Y.S.2d at 108. Similarly, knowledge of a hazard, or failure to protect plaintiff from a known hazard do not rise to the level of intentional tort. See Acevedo, 189 A.D.2d at 501, 596 N.Y.S.2d at 71. Rather, in order to constitute an intentional tort,
the conduct must be engaged in with the desire to bring about the consequences of the act. A mere knowledge and appreciation of a risk is not the same as intent to cause injury. A result is intended if the act is done with the purpose of accomplishing such a result or with knowledge that to a substantial certainty such a result will ensue.Id. (emphasis added). Therefore, where the employer is accused of failing to warn an employee of a known hazard, or fails to disclose the nature of the materials with which the employee is working, the employer's conduct will not constitute an intentional tort. See, e.g., Orzechowski v. Warner-Lambert Co., 92 A.D.2d 110, 113, 460 N.Y.S.2d 64, 66 (2d Dep't 1983) (mere allegation that defendants "consciously, willfully, knowingly and intentionally ignored the hazards they created . . . notwithstanding their knowledge that physical harm would . . . be inflicted upon [plaintiff]" held insufficient to survive summary judgment); Briggs, 147 A.D.2d at 435, 537 N.Y.S.2d at 555-56; (claim that defendant "knew each plaintiff would sustain injuries while working in the toxically dangerous factory but . . . intentionally withheld that information from each worker" dismissed); Finch, 42 A.D.2d at 1036, 348 N.Y.S.2d at 267 (allegations that defendant acted "willfully and wantonly . . . in his failure to warn plaintiff of the unsafe condition of the [equipment] although defendant was aware of the fact" not sufficient to plead intentional tort). Such allegations support, "at most, a theory of gross negligence, or perhaps even reckless conduct," which are "not excepted from the exclusive remedy provisions of the Workers' Compensation law."Orzechowski, 92 A.D.2d at 113, 460 N.Y.S.2d at 66; see also Acevedo, 189 A.D.2d at 501, 96 N.Y.S.2d at 71 ("While the conduct alleged might rise to the level of gross negligence, it cannot be said to meet the necessary threshold of a willful intent to harm the particular employee.")
The allegations of Greco's complaint fail to meet these standards for pleading an intentional tort. Greco has not alleged "specific facts" evidencing the Hospital's deliberate intent to harm him. In fact, Greco's allegations that the Hospital
wilfully and intentionally refused to warn plaintiff of the toxicity of the material or provide protective clothing or equipment to minimize the toxic exposure; that defendant Hospital continued its pattern of wilful, contumacious and intentional behavior by failing to disclose the toxic nature of the materials plaintiff was being exposed to . . .; that the Hospital's actions were wanton, wilful, intentional and contumacious, . . . in deliberately concealing the toxic nature of the materials . . . .
Compl. ¶¶ 48-52 (emphasis added), are as bare and conclusory as those set forth in Orzechowski, Bulis, and Finch, (in which plaintiffs unsuccessfully alleged that defendants knew but "willfully" and "intentionally" failed to warn plaintiffs of known hazards) and inAcevedo (mere knowledge or appreciation of a known risk held inadequate to support allegations of intentional tort). Like the allegations inAcevedo and Orzechowski, Greco's allegations sound in negligence or gross negligence, not intentional tort, and must, therefore, be dismissed for failing to fall within the intentional-injury exception.
b. Greco has elected his remedy by applying for and accepting Workers' Compensation benefits.
Even if Greco had sufficiently pleaded an intentional tort claim — which he did not, he would still be barred from maintaining a separate action against his employer because he has already accepted workers' compensation benefits. See Def.'s Local R. 56.1 Statement, Exs. A, B (notices of decision by the Board awarding Greco benefits). A plaintiff loses his right to sue his employer, even where he has been injured intentionally, by choosing to avail himself of workers' compensation. See Werner v. State of New York, 53 N.Y.2d 346, 354, 441 N.Y.S.2d 654, 658 (1981) (holding that "[a] claimant who applies for, is awarded and accepts workers' compensation . . . benefits is barred by the exclusive remedy and finality provisions of the Workers' Compensation Law from maintaining a [judicial] action against [his employer] for intentional assault."); see also O'Connor v. Midiria, 55 N.Y.2d 538, 539, 450 N.Y.S.2d 455, 456 (1982); Billy v. Consolidated Machine Tool Corp, 51 N.Y.2d 152, 156, 432 N.Y.S.2d 879, 881 (1980). InWerner, the New York Court of Appeals reasoned that allowing an injured employee who had received workers' compensation to bring an additional action for intentional tort would permit a "duplicative recovery" since the employee had already "elected" his remedy under the statute. See Werner, 53 N.Y.2d at 353, 441 N.Y.S.2d at 658.
In Werner, the Board had, in the course of awarding the plaintiff compensation benefits, expressly determined that the plaintiff's injuries were "accidental." See Werner, 53 N.Y.2d at 350-53, 441 N.Y.S.2d at 658. In this case, the Board's Notice of Decision does not state a determination as to whether Greco's injuries were accidental. See Def.'s Local R. 56.1 Statement, Ex. A. However, even where the Board does not state that the injuries were "accidental" plaintiff-employee is, nonetheless, barred from maintaining a separate action against his employer once he has received workers' compensation benefits. See Orzechowski, 92 A.D.2d at 113-14, 116, 460 N.Y.S.2d at 67-69 (holding that the absence of a formal determination of "accidental injury" is not a critical distinction, for implicit in any determination authorizing the payment of benefits under the Workers' Compensation Law is the finding that the injuries sustained are compensable in nature.)
Receipt of benefits, however, does not necessarily leave an employee who has suffered injuries as the result of an intentional tort without recourse. See id., 53 N.Y.2d at 355, 441 N.Y.S.2d at 658. An employee may bring a separate judicial action if, but only if, the Board subsequently rescinds its prior decision to award compensation benefits. See N.Y. Work. Comp. Law § 123; Werner, 53 N.Y.2d at 355, 441 N.Y.S.2d at 658.
Because Greco has already received benefits pursuant to a decision of the Board, he is barred from bringing this action unless and until the Board rescinds its decision. Greco mistakenly asserts his right to maintain the action on the grounds that he "intends" to petition the Board for reconsideration of "the nature of his injuries." Pl.'s Mem. at 4. Plaintiff's "intent" or "confidence" that the Board "will reclassify his injury as being the result of intentional acts" is immaterial. Id. As stated in Werner, plaintiff's tort claim cannot proceed until plaintiff first satisfies the condition precedent of having the Board overturn its original decision. See Werner, 53 N.Y.2d at 355, 441 N.Y.S.2d at 658 (holding that workers' compensation recipient "cannot maintain an action for assault until she has established to the satisfaction of the board in a proceeding under section 123 that it is just that its prior decision awarding compensation be rescinded" (emphasis added)). In light of Greco's acceptance of workers' compensation benefits and of the fact that the Board has not rescinded its decision, Greco may not now bring a common-law action against the Hospital. Thus, even if Greco had adequately pleaded an intentional tort claim, the Hospital's motion for summary judgment on the claim would have been granted.
(2) Labor Law § 200
The Hospital has also moved for summary judgment on Greco's claim for relief under New York Labor Law § 200. Specifically, § 200 places a general duty upon employers and property owners to provide employees with a safe work environment. See N.Y. Lab. Law § 200. It requires that certain work places be "conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein." Id. At one time it was asserted that, notwithstanding the exclusivity of workers' compensation, employees could bring § 200 actions against their employers for workplace injuries under a theory known as the "dual capacity" doctrine. See Billy v. Consolidated Machine Tool Corp., 51 N.Y.2d 152, 159, 432 N.Y.S.2d 879, 882-83 (1980). The theory was that:
Again, because the Hospital's challenge to this particular claim relies on a matter outside the complaint, it has requested that this prong of its motion be treated as a motion for partial summary judgment. See supra note 4.
[A]n employer normally shielded from tort liability by the exclusive remedy principle . . . may become liable in tort to his own employee if he occupies, in addition to his capacity as an employer, a second capacity that confers on him obligations independent of those imposed on him as employer.Id. at 159, 432 N.Y.S.2d at 883. Thus, "the doctrine [was] most frequently invoked when . . . an employee . . . [sought] to hold the employer liable at common law as the owner of the property upon which a job-related injury has occurred." Id.
The New York Court of Appeals has "squarely rejected" the dual capacity doctrine. See id. (holding that to permit actions against employers in their capacity as property owners, in circumvention of the policy of workers' compensation exclusivity, would be "fundamentally unsound"). InBilly, the court made clear that
an employer remains an employer in his relations with his employees as to all matters arising from and connected with their employment. He may not be treated as a dual legal personality, a sort of Dr. Jekyl and Mr. Hyde . . . . Employers are expected to provide their employees with a safe workplace that is reasonably free of hazards. This obligation to provide a safe workplace simply cannot be separated in a logical and orderly fashion form the duties owned by the employer to his employees by reason of his ownership of the premises . . . [in which] the employees work. Indeed, these duties are merely subcategories within the complex of obligations that arise in connection with the employment relation. We would be seriously undermining the salutary social purposes underlying the existing workers' compensation scheme if we were to permit common-law recovery outside of that scheme on the basis of such illusory distinctions. This we decline to do.Id. at 160, 432 N.Y.S.2d at 884. Thus, where an employee is injured during the course of his employment due to his employer's alleged violation of § 200 and the employer is also the owner of the premises, Workers' Compensation Law § 11 bars the employee from bringing an action against his employer in his capacity as a property owner. An employee's "sole remedy against his employer lies in his entitlement to a recovery under the Workers Compensation Law." Rainey v. Jefferson Village Condo No. 11 Assocs., 203 A.D.2d 544, 546, 611 N.Y.S.2d 207, 209 (2d Dep't 1994).
In sum, then, Greco cannot maintain a cause of action pursuant to Labor Law § 200 against the Hospital. Even if the Hospital violated § 200, Greco is not entitled to relief under § 200, for he has already received his remedy in the form of workers' compensation. Greco may not circumvent the exclusivity of workers' compensation by bringing an action against the Hospital simply because it is the owner of the premises on which he was injured, in addition to being his employer. The dual capacity doctrine bars plaintiffs from doing just that. Accordingly, the Hospital's motion for summary judgment on Greco's Labor Law § 200 claim is granted.
In its brief, the Hospital moved in the alternative to dismiss Greco's claims under Labor Law § 200 on the ground that § 200 applies only to construction-site employers and that the Hospital does not fall within this category. See Def.'s Mem. Supp. at 10. Plaintiffs, on the other hand, cite to a case purportedly suggesting the contrary.See, e.g., Jock v. Fein, 80 N.Y.2d 965, 967, 590 N.Y.S.2d 878, 880 (1992). However, because Greco's dual capacity claim must be rejected, the issue of the applicability of § 200 to the Hospital need not be reached.
(3) Loss of Consortium
The Hospital has also moved to dismiss Mrs. Greco's claim for loss of consortium. Claims of loss of consortium are strictly derivative of a spouse's underlying cause of action. See Daniels v. Zelco, Inc., 159 A.D.2d 538, 540, 552 N.Y.S.2d 403, 406 (2d Dep't 1990). Plaintiffs concede that the survival of Mrs. Greco's claim is directly contingent upon the survival of their other claims, viz., intentional tort and violation of Labor Law § 200. See Pl.'s Mem. at 10. Because Greco's claims have been dismissed, Mrs. Greco's claim for loss of consortium must be dismissed as well.(4) Sanctions and Attorney's Fees
Finally, the Hospital has moved for an award of sanctions and attorney's fees pursuant to Fed.R.Civ.P. 11. However, a motion for sanctions under Rule 11 must be made separately from other motions. See Fed.R.Civ.P. 11(c)(1)(A). Because the defendant has included its motion for sanctions in the same papers as its motion for summary judgment, the motion must be denied for failure to comply with the procedural requirements of Rule 11(c)(1)(A).
Conclusion
For the foregoing reasons, the Hospital's motion to dismiss and for partial summary judgment is granted, and plaintiff's complaint is dismissed in its entirety with respect to the Hospital. The Hospital's motion for sanctions and attorney's fees is denied.