Opinion
# 2017-053-521 Claim No. 123817 Motion No. M-89769
05-12-2017
DALE HUBBARD v. STATE OF NEW YORK
COLLINS & COLLINS ATTORNEYS, LLC BY: Samuel J. Capizzi, Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Michael T. Feeley, Esq. Assistant Attorney General
Synopsis
The State's motion for summary judgment is granted as to claimant's Labor Law § 241 (6) cause of action based on an alleged violation of 12 NYCRR 23-4.2 (c) and (k). The motion is denied as to claimant's Labor Law § 200 and common law negligence causes of action, as well as claimant's Labor Law § 241 (6) cause of action based on an alleged violation of 12 NYCRR 23-4.2 (a).
Case information
| UID: | 2017-053-521 |
| Claimant(s): | DALE HUBBARD |
| Claimant short name: | HUBBARD |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123817 |
| Motion number(s): | M-89769 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | COLLINS & COLLINS ATTORNEYS, LLC BY: Samuel J. Capizzi, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Michael T. Feeley, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 12, 2017 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Dale Hubbard alleges in claim no. 123817 that he sustained personal injuries on February 12, 2012 while working on a water main replacement construction job at Collins Correctional Facility (Collins). Claimant alleges that his injuries were caused by the negligence of the State as the owner of the property in violation of the common law and Labor Law §§ 200 and 241 (6). Defendant moves for summary judgment and claimant opposes the motion. FACTS
On February 9 and 10, 2012, claimant Dale Hubbard was working as a laborer for STC Construction, Inc. (STC) which was hired by the New York State Office of General Services (OGS) to repair a broken water main at Collins. STC superintendent Peter Ochal told claimant that it should take two men, two days to locate the broken water pipe, put a "band-aid" on it, and then fill in the pipe and pack it down. All of the equipment utilized in this two-person, two-day job belonged to STC.
Claimant's deposition transcript, claimant's exhibit A, p. 21.
On February 9, 2012, the day before claimant was injured, Mr. Ochal used an STC backhoe to dig an excavation hole to locate the broken pipe. No sheeting or shoring was used to support the excavation. Towards the end of the day, the pipe was exposed and patched by using a clamp provided by OGS. After repairing the pipe, claimant and Mr. Ochal poured crushed gravel they obtained from Gernatt Gravel beneath the repaired pipe, erected barriers to protect the hole and installed a submersible pump which was left on all night to eliminate excess water from the hole. When they returned the next morning, the hole was dryer. According to claimant, there was still water under the stone; he could feel the dampness and the pump was still pumping water.
Claimant's deposition transcript, claimant's exhibit A, p. 22.
Claimant's deposition transcript, claimant's exhibit A, pp. 51-57.
Claimant's deposition transcript, claimant's exhibit A, pp. 30-32.
Claimant's deposition transcript, claimant's exhibit A, pp. 32-35 and 41-46.
Claimant's deposition transcript, claimant's exhibit A, 33-34.
On February 10, 2012, the day of claimant's injury, claimant and Mr. Ochal began the process of backfilling the hole up to grade after removing the pump. The backfill used was minus one crusher run gravel obtained from Gernatt Gravel and identified on Gernatt's invoice as " -1 CR. RUN GR." This invoice was signed by OGS inspector Jeffrey Westerman.
Deposition exhibit no. 28, attached as part of claimant's exhibit F.
In order to backfill the hole, Mr. Ochal would install successive layers of minus one crushed gravel in multiple layers about six inches in depth. Mr. Ochal drove the short distance to Gernatt Gravel, where Gernatt told him where to go and pick up the material. According to Mr. Ochal, the decision to use minus one crusher gravel to backfill was made by OGS. Mr. Ochal testified that while he would have chosen another material, i.e., one that was dryer or a bit easier to work with, the use of this backfill material was acceptable for this application.
Mr. Ockal's deposition transcript, claimant's exhibit B, p. 37.
Mr. Ockal's deposition transcript, claimant's exhibit B, pp. 20-21.
After each layer of backfill was placed, claimant would compact the layer by using an STC plate tamper machine. A plate tamper is a gas powered machine which weighs approximately 250 pounds. It is about the size of a push lawn mower, but instead of having blades, it has plates on the bottom of the machine which vibrate up and down packing or tamping the gravel.
Mr. Ockal's deposition transcript, claimant's exhibit B, 53-57.
Claimant had completed tamping one or two layers of backfill when the incident occurred. As claimant was tamping down the gravel, he testified that "it just kept mushing out of the way." According to claimant, the tamper machine sunk about three inches into the gravel. Claimant started pulling and tugging on the tamper when he felt a pop and thought he had broken a rib. Claimant testified at his deposition that the backfill was "dirty" as it contained clay and sand and was "a little bit" watery. He further testified that he told Mr. Ochal that the backfill was the "wrong stuff" and that Mr. Ochal told this to Mr. Westerman, OGS' engineer-in-charge. However, claimant testified that he was not present for any conversation between Mr. Ochal and Mr. Westerman.
Claimant's deposition transcript, claimant's exhibit A, p. 62.
Claimant's deposition transcript, claimant's exhibit A, pp.51-52.
Mr. Ochal was not present at the time of claimant's injury as he had left the work site to obtain more gravel from Gernatt Gravel. When Mr. Ochal returned to the site, claimant testified that he told him that he thought he was having a heart attack. Claimant continued to work but rested and slowed down. According to Mr. Ochal's deposition testimony, claimant never told him that he had been injured. Mr. Ochal first became aware that claimant was injured on-the-job at the home office after the date of the injury.
Claimant's deposition transcript, claimant's exhibit A, pp. 62-68.
Claimant's deposition transcript, claimant's exhibit A, pp. 68-70.
Mr. Ockal's deposition transcript, claimant's exhibit B, 60-61.
The claimant testified that the tamper was sinking into the gravel instead of riding on top of the newly poured gravel. The "gravel was turning into pudding and then all of the vibrations started caving the hole in." The claimant testified that the sides of the hole consisted of sand with fissures, and that the vibrations from the tamper and the vibrations from the installation of a new water system nearby caused the dirt to come into the hole. Claimant testified that he raked the fallen dirt out of his way, but did not remove any of it from the hole.
Claimant's deposition transcript, claimant's exhibit A, p. 56.
Claimant's deposition transcript, claimant's exhibit A, pp. 58-60.
Mr. Ochal, STC's superintendent testified that claimant never told him that the sides of the excavation were breaking down on him as he tamped and Mr. Ochal never observed the sides of the excavation breaking down. From photographs shown at his deposition, Mr. Ochal described the soil in the excavation as a fine gravely type of material which appeared to have some sand in it and not much clay. According to Mr. Ochal, shoring could have prevented the sides from breaking down but they tried to keep the excavation to under or around the five foot level so there would be no risk of a cave-in. Upon further questioning, Mr. Ochal admitted that the excavated hole could have been as deep as seven feet.
Mr. Ockal deposition transcript, claimant's exhibit B, pp. 50-52.
Mr. Ockal's deposition transcript, claimant's exhibit B, pp. 51-52.
Mr. Ochal also testified at his deposition that sheeting or shoring do not have any effect on tamping as shoring holds back the walls of the excavation while tamping is done directly over the backfill. He also testified that sheeting or shoring would not have prevented water from coming into the hole as the water found originated from the leak itself.
Mr. Ockal's deposition transcript, claimant's exhibit B, pp. 56-57.
Mr. Westerman was OGS' engineer-in-charge on the project. He testified that Gernatt Gravel was an acceptable supplier and that OGS did not have a stockpile of material there. According to Mr. Westerman, the contractor would typically provide all services and materials, and STC would select the supplier, purchase the backfill and then present it to OGS for approval. Mr. Westerman was certain that he approved the selection of backfill selected by STC. He left work early on the first day of the job and came in late on the second day, the day claimant was injured. He had no recollection of any complaints raised by STC regarding the type of fill. Mr. Westerman testified that he would reject fill that contained clay or sand mixed in with the gravel.
Mr. Westerman's deposition transcript, claimant's exhibit C, pp. 17-24.
Mr. Westerman's deposition transcript, claimant's exhibit C, p.29.
Mr. Westerman's deposition transcript, claimant's exhibit C, p. 31.
Mr. Westerman's deposition transcript, claimant's exhibit C, p. 32. --------
Claimant attaches to his papers an affidavit of Edward Casey, a Global Process Innovation Leader whose responsibilities include the development and implementation of safety programs. Mr. Casey opines that it was improper to use " -1 crush run gravel" that contained clay and sand, commonly referred to in the industry as "dirty fill." Mr. Casey further opines that according to Industrial Code regulation 12 NYCRR 23-4.2 (a), excavations deeper than five feet require sheeting and shoring and that excavations between three and five feet also require sheeting and shoring if the excavation is in clay, sand, silt or loom, which was present here based on claimant's testimony and photographs.
Claimant submitted a second affidavit from Peter A. Tasca, a former Inspector for the New York State Department of Labor. Mr. Tasca opined that only clean fill without sand or clay should have been used and that it was improper to perform this excavation without the use of sheeting or shoring as the excavation was greater than five feet deep. It was Mr. Tasca's opinion that the use of improper fill and/or the lack of sheeting and shoring were unsafe conditions or methods which caused claimant's injuries.
In support of its motion, defendant submitted the affidavit of John P. Coniglio, Managing Director of Occupation Safety & Environmental Assoc., Inc. Mr. Coniglio opined that the minus one crusher run gravel was appropriate fill for this excavation. In addition, Mr. Coniglio opined that if the fill was moist, it was a common occurrence as such fill is commonly stored outside, and if further drainage was necessary, that was a decision to be made by STC. Mr. Coniglio further opined that no alleged violation of Industrial Code regulation 12 NYCRR 23-4.2 (a) caused claimant's injuries as there was no cave-in onto the claimant from the walls and the claimant was not tamping caved in portion of the walls when he was injured. According to Mr. Coniglio, the tamping machine would have been used in the same manner if shoring or sheeting were present as the tamping could not have occurred in a hole of this size against metal shoring. If shoring had been used, it would have had to have been raised just above the layer being compacted as the tamping of the backfill occurs in a shored excavation until the layer rises to the depth where shoring is no longer needed. LAW
Summary judgment is a drastic remedy and will only be granted where the moving party establishes that there are no triable issues of fact (Vega v Restani Constr. Corp., 18 NY3d 499 [2012]). The proponent of a summary judgment motion must present facts in evidentiary form sufficient to establish its right to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). If the proponent of the motion fails to make a prima facie showing of entitlement to summary judgment, its motion must be denied regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., supra at 324). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of a triable issue of fact (Zuckerman v City of New York, supra at 562). In deciding a summary judgment motion, the Court must view the evidence in a light most favorable to the non-moving party (Haymon v Pettit, 9 NY3d 324 [2007]).
Labor Law § 200 and Common Law Negligence
Labor Law § 200 is a codification of the common law duty of owners and contractors to provide a safe place to work (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343 [1998]; Allen v Cloutier Constr. Corp., 44 NY2d 290 [1978]). Labor Law § 200 provides in relevant part:
"All places to which this chapter applies shall be so 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."
"An implicit precondition to this duty to provide a safe place to work is that the party charged with that responsibility have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition" (Russin v Louis N. Picciano & Son, 54 NY2d 311, 317 [1981]). An owner will not be found liable where the alleged defect or dangerous condition arises out of the contractor's means and methods of the work being performed and the owner exercised no supervisory control over the operation (Lombardi v Stout, 80 NY2d 290, 295 [1992]). The applicable standard is whether the owner of the property "gave anything more than general instructions as to what needed to be done, as opposed to how to do it" (Jones v County of Erie, 121 AD3d 1562, 1563 [4th Dept 2014], citing O'Sullivan v IDI Constr. Co., Inc., 28 AD3d 225, 226 [1st Dept 2006 ], affd 7 NY3d 805 [2006]).
The Court finds that defendant failed to establish that it did not have the authority to control the means or method by which the water main repair was performed and that it did not have notice of any allegedly defective and unsafe condition. The often conflicting deposition testimony of claimant, Mr. Ochal and Mr. Westerman offered by defendant in support of its motion raise issues of fact as to whether defendant or claimant's employer selected the backfill for the excavation, whether the backfill selected was appropriate for the project and whether the backfill used was a proximate cause of claimant's injuries. Defendant failed to establish that it had no "input into the method used by [STC] in carrying out the injury-producing work" or that it had no actual or constructive knowledge of any dangerous condition (see Letts v Globe Metallurgical, Inc., 89 AD3d 1523 [4th Dept 2011]).
Accordingly, defendant's motion to dismiss the Labor Law § 200 and common law negligence causes of action is denied.
Labor Law § 241 (6)Labor Law § 241 (6) provides:
"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 subsection, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith."Labor Law § 241 (6) imposes a nondelegable duty upon owners and contractors to provide adequate and reasonable protection to workers engaged in construction, excavation or demolition work (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 347 [1998]). In order to prevail on a Labor Law § 241 (6) claim, a claimant must establish that the defendant violated a specific as opposed to a general standard of conduct (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 [1993]).
In the claim it is alleged that the defendant violated Labor Law § 241 (6). In claimant's verified bill of particulars, it is specifically alleged that the defendant violated New York State's Industrial Code regulations 12 NYCRR §§ 23-4.2 (a), (c) and (k).
The Appellate Division, Fourth Department has held that regulation12 NYCRR § 23-4.2 (k) is insufficiently specific to form the predicate of a Labor Law § 241 (6) claim (Vanderwall v 1255 Portland Ave. LLC, 128 AD3d 1446, 1447 [4th Dept 2015]; Buhr v Concord Sq. Homes Assoc., Inc., 126 AD3d 1533, 1534 [4th Dept 2015]; and Webber v City of Dunkirk, 226 AD2d 1050, 1051 [4th Dept 1996]). Accordingly, claimant's Labor Law § 241 (6) cause of action insofar as it is based on an alleged violation of Industrial Code regulation 12 NYCRR § 23-4.2 (k) is dismissed.
Industrial Code 12 NYCRR § 23-4.2 (c ) deals with unbraced sloped excavations which extend below the ground water table. Nothing submitted with the motion indicates that the excavation performed to uncover the broken pipe was below the ground water table. Mr. Ochal testified at his deposition that " it was above the water table" (claimant's exhibit B; p. 57). Attached to the affirmation of Assistant Attorney General Michael Feeley as exhibit F is the expert affidavit of John P. Coniglio, Managing Director of Occupation Safety & Environmental Assoc., Inc. According to Mr. Coniglio, the use of a submersible pump to drain the excavation on the night of February 9, 2012 could not have occurred if the excavation was below the level of the ground water table. Claimant's experts do not dispute this finding. In fact, claimant does not address Industrial Code regulations 12 NYCRR §§ 23-4.2 (c ) or (k) in opposing defendant's motion for summary judgment, indicating that he has abandoned them as a basis of liability (Perez v Folio House, Inc., 123 AD3d 519 [1st Dept 2014]). Accordingly, claimant's Labor Law § 241 (6) cause of action insofar as it is based on an alleged violation of Industrial Code regulations 12 NYCRR §§ 23-4.2 (c) and (k) are dismissed.
The only remaining Industrial Code regulation upon which claimant bases his Labor Law §241 (6) claim is regulation 12 NYCRR 23-4.2 (a) which provides:
" (a) Whenever any person is required to work in or is lawfully frequenting any trench or excavation five feet or more in depth which has sides or banks with slopes steeper than those permitted in Table I of this Subpart, such sides or banks shall be provided with sheeting and shoring in compliance with this Part (rule). Such sheeting and shoring system shall be in contact with the sides or banks of such trench or excavation. A designated person shall carefully inspect such sheeting and shoring at least once each day and more frequently in the event of rain, the presence of additional surface or ground water from any source, excessive ground vibrations or whenever additional loads of any kind have been imposed near or adjacent to such excavation. Additional protection against slides and cave-ins shall be provided whenever necessary. Any trench or excavation in clay, sand, silt, loam or nonhomogeneous soil which has sides or banks more than three feet but less than five feet in depth shall be provided with side or bank protection in compliance with this Part (rule). Such side or bank protection shall not be required where an employer maintains on file at the excavation site a dated certificate in writing by a designated person who is qualified by training and experience indicating that such person has examined the sides and banks and has found them to be stable and not subject to failure or cave-in. Such certificate shall be available for examination by the commissioner."
Generally, courts have held that Industrial Code regulation 12 NYCRR 23-4.2 is specific enough to form the basis of a Labor Law § 241 (6) cause of action (see Wells v British Am. Dev. Corp., 2 AD3d 1141 [3d Dept 2003]; Matter of Fischer v State of New York, 291 AD2d 815 [4th Dept]). As noted earlier, however, the Fourth Department has held that subsection (k) of regulation 23-4.2 is not specific enough (see (Vanderwall v 1255 Portland Ave. LLC, 128 AD3d 1446, 1447 [4th Dept 2015]; Buhr v Concord Sq. Homes Assoc., Inc., 126 AD3d 1533, 1534 [4th Dept 2015]; and Webber v City of Dunkirk, 226 AD2d 1050, 1051 [4th Dept 1996]). In moving for summary judgment seeking to dismiss claimant's Labor Law § 241 (6) cause of action based on an alleged violation of regulation 23-4.2, defendant does not argue that subsection (a) is not specific enough. Rather, defendant argues that this subsection is not applicable to the facts of this case. I find, however, that regulation 23-4.2 (a) is sufficiently specific to form the basis of a Labor Law § 241 (6) cause of action. This finding does not automatically mean that this regulation is applicable. Once again, numerous questions of fact exist as to whether regulation 23-4.2 (a) is applicable. Whether a cause of action may be based on an alleged violation of this regulation depends on whether the excavation was greater than five feet deep or whether the soil contained "clay, sand, silt or loom" so as to require side or bank protection. Further, factual issues exist concerning whether an alleged violation of this regulation was a proximate cause of claimant's injuries and whether the claimant has any comparative fault (see Ross v Curtis-Palmer Hydro-Elec. Co., supra at 502, n 4).
Accordingly, defendant's motion for summary judgment dismissing claimant's Labor Law § 241 (6) cause of action is granted in part and denied in part.
Based on the foregoing, Defendant's motion for summary judgment dismissing claimant's Labor Law § 200 and claimant's common law negligence causes of action are denied. Defendant's motion for summary judgment dismissing claimant's Labor Law § 241 (6) cause of action insofar as it is based on an alleged violation of regulations 12 NYCRR 23-4.2 (c ) and (k) is granted. Defendant's motion for summary judgment dismissing claimant's Labor Law § 241 (6) cause of action insofar as it is based on an alleged violation of regulation 12 NYCRR 23-4.2 (a) is denied.
May 12, 2017
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1. Notice of motion for summary judgment and affidavit of Assistant Attorney General Michael T. Feeley, Esq. sworn to January 12, 2017, with annexed exhibits A-K; 2. Opposing affidavit of Samuel J. Capizzi, Esq. sworn to March 10, 2017, with annexed exhibits A-H; 3. Claimant's memorandum of law dated March 10, 2017; and 4. Affidavit in further support of summary judgment of Assistant Attorney General Michael T. Feeley, Esq. sworn to March 17, 2017.