Opinion
No. 98-CV-2330 (FB)(JMA)
December 3, 2002
For the Plaintiffs: BERT TARAS, Esq. Brooklyn, NY.
For the Defendants: BARRY K. MYRVOLD, Esq. Hawkins, Feretic, Daly Maroney, P.C. New York, NY. ROBERT ADAMS, Esq. Wilson, Elser, Moskowitz, Edelman Dicker New York, NY.
MEMORANDUM AND ORDER
Plaintiffs Phillip V. Prevete ("Prevete") and his wife Joanne Prevete brought this action in New York State Court seeking money damages for burn-related injuries Prevete sustained while working on a construction site. Plaintiffs allege that defendants are liable to them under New York Labor Law §§ 200 and 241(6), and common law negligence. Defendants removed the action to federal court on the basis of diversity jurisdiction, pursuant to 28 U.S.C. § 1441 (b). Defendants now move (1) for summary judgment dismissing plaintiffs' complaint, and (2) to exclude the testimony of plaintiffs' liability expert, Irving Paris ("Paris"). For the reasons set forth below, the Court dismisses plaintiffs' complaint.
BACKGROUND
The following facts are undisputed, except where noted: On September 4, 1996, Prevete was injured while refueling a welding machine. At the time of the accident, he was working for his employer, third-party defendant J.C. Steel Corporation ("J.C. Steel"), on a Price Club construction project in Brooklyn, New York. One of the supervisors on the job site was Tony Stonish ("Stonish").
The property on which the construction was taking place was owned by defendant Price Costco ("Costco"); the general contractor for the construction project was defendant B.D.A. Construction Company ("B.D.A."); defendant Span Construction Company ("Span") was the steel subcontractor on the construction project; Span, in turn, subcontracted the steel erection work to Prevete's employer, J.C. Steel.
Prevete generally reported to, received instructions from, and was supervised by Stonish and/or the owner of J.C. Steel, Jimmy Adams. No one from Costco, B.D.A. or Span exercised any supervision or control over Prevete
On the day of the accident, Prevete and other J.C. Steel workers were instructed by Stonish to lay out the floor deck, which involved covering floor beams with metal fasteners to create a floor on the third floor of the building. J.C. Steel provided Prevete with a torch and a welding machine. For most of the day, Prevete and his coworkers worked on the third floor tacking down the metal floors. To do this, they used a welding machine that was located on the ground floor of the building, with a 300 to 400 foot cable that ran from the machine to a welding "stinger" Prevete and his coworkers were using on the third floor. The area where the welding was being performed that day consisted of a galvanized metal floor deck and metal beams.
Sometime after lunch, Stonish told Prevete to fuel one of the welding machines. Prevete picked up a five gallon can of gasoline, walked over to the welding machine, put the can down, shut the welding machine off, removed the machine's gas cap, picked up the gas can and began pouring gas into the machine. The welding machine, which Prevete described as held together with tape and rubber bands, had been turned off for only a "couple minutes" before he began fueling it. Prevete Dep. at 81. As he was pouring gasoline into the machine's nozzle, the gasoline or gasoline fumes ignited, burning Prevete. The gasoline can and the welding machines were owned by J.C. Steel and were transported, maintained and used by J.C. Steel's employees.
Prevete testified at his deposition that he had no idea what caused the gasoline to ignite. In an affidavit submitted in response to defendants' motion, Prevete now suggests that sparks from welding that was taking place above him at the time may have caused the explosion: "[I]mmediately before the accident I was directly underneath the area on the main floor decking where . . . sparks were coming down from" where other J.C. Steel workers were welding. Aff. at 3.
Prevete states that he "did not testify to these matters at the time of [his] deposition because the questioning attorneys did not inquire about the other welders in the refueling area." Prevete Aff. at 4.
Plaintiffs' theory of liability against defendants, Costco, B.D.A. and Span, is based on the opinion of their expert, Paris, who opines that sparks from welding overhead were indeed the likely cause of the explosion and that defendants are responsible for the happening of the accident because they were in violation of several Industrial Code regulations. Plaintiffs also claim that defendants are liable because they had supervision and control over the work site.
Defendants attack Paris's qualifications and the bases for his opinions in their motion to exclude his testimony; however, because the Court concludes that plaintiffs' claims should nonetheless be dismissed, the Court need not determine whether Paris's testimony would be admissible.
DISCUSSION
The standards governing summary judgment are well-settled. Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The party seeking summary judgment has the burden to demonstrate that no genuine issue of material fact exists. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). In determining whether a genuine issue of material fact exists, a court must examine the evidence in the light most favorable to, and draw all inferences in favor of, the non-movants. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is improper if there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party. Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000).
I. Plaintiffs' Labor Law § 241(6) Claim
"Labor Law § 241(6) imposes a nondelegable duty upon [owners and] contractors, regardless of their degree of control or supervision, to provide reasonable and adequate safety to the persons employed therein." Moffett v. Harrisson and Burrowes Bridge Contractors, Inc., 698 N.Y.S.2d 109, 112 (3d Dep't 1999) (internal quotation marks omitted) (citing Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501 (1993)). To maintain a cause of action under § 241(6), "plaintiffs must allege that defendants violated a rule or regulation of the Commissioner of Labor that sets forth a specific standard of conduct as opposed to a general reiteration of common-law principles." Adams v. Glass Fab, 624 N.Y.S.2d 705 (4th Dep't 1995) (citing Ross, 81 N.Y.2d at 502-504).
Plaintiffs allege in their interrogatory responses that defendants violated 12 N.Y.C.R.R. §§ 23-1.5(c), 23-1.25 and 23-10.4. Paris, in his report, cites a list of code violations: 12 N.Y.C.R.R. §§ 23-1.5(a) and (b), 23-1.7, 23-1.25(d) and (e), and 23-9.2(e). The provisions cited by plaintiffs and their expert either set forth general, rather than specific, safety standards or are otherwise inapplicable.
Section 23-1.25(d) clearly sets forth a general safety standard. See Winkelman v. Alcan Aluminum Corp., 685 N.Y.S.2d 167, 168 (4th Dep't 1998) (citing Ross, 81 N.Y.2d at 502). Section 23-1.25(e)(2) provides that "[w]here there is a hazard to other persons from flying particles of metal there shall be provided suitable incombustible screening installed between the welding and flame cutting operations and such other persons." Insofar as this provision requires an owner or general contractor to provide "suitable incombustible screening," it also constitutes a general safety standard. As the Court of Appeals explained, in discussing a similarly worded provision, § 23-1.4 (a):
"The duty at issue here [is] the requirement that welders be provided with `adequate', `proper' and `suitable' scaffolds. . . [This] duty to provide materials and equipment `of such kind and quality as a reasonable and prudent [person] experienced in construction operations would require in order to provide safe working conditions' . . . adds nothing to the general common-law rule requiring the provision of a safe workplace. It is not so much a `specific, positive command' . . . as a routine incorporation of the ordinary tort duty of care into the Commissioner's regulations."Ross, 81 N.Y.2d at 503-05.
Sections 23-1.5(a), (b) and (c) also set forth general safety standards. See Schwab v. A.J. Martini, Inc., 732 N.Y.S.2d 474, 477 (3d Dep't 2001) (Section 23-1.5 generally); Sihly v. New York City Transit Authority, 723 N.Y.S.2d 189, 190 (1st Dep't 2001) (same); see also Hawkins v. City of New York, 713 N.Y.S.2d 311, 312 (1st Dep't 2000) (Section 23-1.5(a)); Webster v. Wetzel, 691 N.Y.S.2d 848, 849 (4th Dep't 1999) (Section 23-1.5(c)). The same is true of § 23-9.2(e). See Fairchild v. Servidone Const. Corp., 733 N.Y.S.2d 735, 738 (3d Dep't 2001); Moffett, 698 N.Y.S.2d at 112.
Section 23-1.7 is inapplicable because it is intended to prevent impact injuries from falling objects or material. See, e.g., 12 N.Y.C.R.R. § 23-1.7(a)(1) ("[O]verhead protection shall be provided with a supporting structure capable of supporting a loading of 100 pounds per square foot."). Section 23-10.4 is also inapplicable because it addresses the work place hazard of carbon monoxide poisoning. See 12 N.Y.C.R.R. § 23-10.4 ("The operation of other internal combustion engines within such a space is prohibited except for the necessary entrance and departure of vehicles and except when such space is so ventilated as to assure an atmosphere free from exhaust gases in a concentration tending to injure health.").
In any event, plaintiffs fail to set forth proof of violations of these regulations. Accordingly, plaintiffs' § 241(6) claim premised on these code violations must be dismissed.
II. Plaintiff's Labor Law § 200 and Common-Law Negligence Claims
"Section 200 of the Labor Law is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work." Comes v. New York State Elec. and Gas Corp., 82 N.Y.2d 876, 877 (1993). "[W]here such a claim arises out of alleged defects or dangers arising from a subcontractor's methods or materials, recovery against the owner or general contractor cannot be had unless it is shown that the [owner or general contractor] exercised some supervisory control over the operation." Ross, 81 N.Y.2d 494, 505 (1993); see also Allen v. Cloutier Constr. Corp., 44 N.Y.2d 290, 299 (1978) ("[A]n owneror general contractor [sh]ould not be held responsible for the negligent acts of others over whom [the owner or general contractor] had no direction or control."). Mere oversight of the timing or quality of the subcontractor's work by the owner or general contractor does not establish the requisite supervision and control. See Gonzalez v. United Parcel Service, 671 N.Y.S.2d 753, 755 (1st Dep't 1998); Decotes v. Merrit Meridian Corp., 666 N.Y.S.2d 763 (3rd Dep't 1997). A claim brought pursuant to § 200 is identical to a common-law negligence claim. See Ross, 81 N.Y.2d at 504.
Plaintiffs have not set forth any evidence that any of the defendants supervised or controlled work performed by Prevete, or that defendants created or had actual or constructive notice of any alleged dangerous conditions. Prevete was supervised and controlled by his employer, J.C. Steel. See, e.g., Lombardi v. Stout, 80 N.Y.2d 290, 295 (1992) ("[T]here is no evidence that defendant [owner] exercised supervisory control or had any input into how the branch was to be removed."); Loiacono v. Lehrer McGovern Bovis, Inc., 704 N.Y.S.2d 658, 659 (2nd Dep't 2000) ("The record contains no evidence that [defendant] directed or controlled the manner in which Loiacono carried out his task. . . As Loiacono testified at his [deposition], his employer supplied him with his equipment for the job, and he determined how to go about installing the stone on his own."). In an attempt to avoid summary judgment, plaintiffs' counsel makes rambling, digressive arguments in his thirty-five page brief; however, he fails to demonstrate that there are genuine issues of material fact as to whether any defendants had the requisite supervision and control over Prevete's work or had notice of dangerous conditions. All of the evidence points to responsibility for the accident lying with J.C. Steel, not defendants. Accordingly, plaintiffs' § 200 claim must be dismissed.
Because the Court concludes that plaintiffs' claims must be dismissed, the Court need not address the admissibility of Paris's proffered testimony.
CONCLUSION
Plaintiffs' complaint is dismissed in its entirety.