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stating that liability may exist where defendant's relationship with tortfeasor or plaintiff places defendant in best position to protect against risk of harm
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00 Civ. 4097 (SAS).
October 10, 2001
Seth M. Katz, Esq., Weiser Associates, P.C., New York, New York, For Eugene Serwatka.
Beth L. Rex, Esq., Smetana, Villani Rex, New York, New York, For Ford Motor Company and Exhibit Works, Inc.
Russell G. Tisman, Esq., Grossman, Ross Tisman, P.C., Carle Place, New York, For Freeman Decorating Corp.
Timothy E. Shanley, Esq., St. John Wayne, L.L.C., New York, New York, For Clarklift of New York, Inc.
OPINION AND ORDER
Eugene Serwatka brings this action for injuries arising from an accident that occurred during the unloading of materials used in the Jaguar car exhibit at the 1999 Auto Show. Serwatka is suing four defendants: Ford Motor Company, s/h/a/ Ford Motor Corp., d/b/a/ Jaguar Cars ("Ford"), Freeman Decorating Corp. ("Freeman"), Exhibit Works, Inc. ("EW"), and Clarklift of New York, Inc. ("Clarklift"). Serwatka alleges that Ford, Freeman, and EW acted in a negligent manner and also violated sections 200, 240(1) and 241(6) of the New York Labor Law. See N.Y. Lab. Law §§ 200, 240(1) and 241(6) (McKinney 1986 Supp. 2000). Serwatka has also brought claims of negligence and strict products liability against Clarklift.
This action was originally brought in state court and was removed to the Southern District of New York on diversity grounds pursuant to 28 U.S.C. § 1332.
The proper name is Ford Motor Company.
Serwatka's Complaint does not specify which sections of the New York Labor Law were violated. However, because the parties focus on sections 200, 240(1) and 241(6) in their submissions, the Court will also focus on these sections.
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Serwatka now moves for partial summary judgment finding Ford, Freeman, and EW liable under section 240(1) of the New York Labor law, the so-called "scaffold law." In turn, Ford, Freeman, EW and Clarklift cross-move to dismiss all of Serwatka's claims. For the reasons stated below, Serwatka's motion is denied and defendants' motions are granted in part and denied in part.
Defendants have also asserted cross-claims against each other for common-law contribution and indemnity. The effect of the Court's rulings on these claims is discussed below.
I. LEGAL STANDARD
Rule 56 provides for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "An issue of fact is `material' for these purposes if it might affect the outcome of the suit under the governing law [while] [a]n issue of fact is `genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Shade v. Hous. Auth. of City of New Haven, 251 F.3d 307, 314 (2d Cir. 2001) (quotation marks and citations omitted).
"In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities and draw all reasonable inferences against the moving party." Flanigan v. General Elec. Co., 242 F.3d 78, 83 (2d Cir. 2001). "Although the moving party bears the initial burden of establishing that there are no genuine issues of material fact, once such a showing is made, the non-movant must `set forth specific facts showing that there is a genuine issue for trial.'" Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (citation omitted). "Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999); see also Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) ("If the evidence presented by the non-moving party is merely colorable, or is not significantly probative, summary judgment may be granted.") (quotation marks, citations and alterations omitted).
II. FACTUAL BACKGROUND
The following facts are undisputed. EW designs and manufactures exhibits for, among others, trade shows, museums, and auto shows. In 1999, Ford hired EW to make an exhibit for its Jaguar Car exhibit at the New York Auto Show. Accordingly, EW arranged for North American Van Lines ("NAVL") to transport the Jaguar exhibit materials from its warehouse in Michigan to the Auto Show — held at the Jacob K. Javits Center ("Javits Center") in New York City. NAVL hired Serwatka, a self-employed contract truck driver, who drove a forty-eight foot long, 102 inch wide flatbed trailer with a retractable top, to EW's warehouse in Michigan. EW loaded the materials, which consisted of crates of supplies and skids of plywood flooring, onto the trailer using a 5000 pound capacity forklift.
The facts were derived from the parties' respective Local Rule 56.1 Statements.
Ford and EW had a standing business arrangement whereby EW was responsible for setting up Ford's exhibits, storing exhibit components, maintaining the exhibits, and shipping the exhibits or exhibit components to their destinations.
The layers of plywood flooring were attached to the skids by nylon or metal banding.
Serwatka arrived at the Javits Center on the morning of March 25, 1999. He checked his paperwork with a representative from Freeman, the Auto Show's official contractor, and drove his truck onto the exhibit floor. Serwatka was directed to an empty area consisting of bare concrete — there were no marks on the floor, no exhibits set up or booths in the process of being set up. Serwatka got out of the truck and opened the retractable top of the trailer. Serwatka then stood on the floor while Alvin Dixon, a forklift operator, began to unload the truck. Serwatka's sole assignment was to deliver the materials; he did not have any role in the unloading.
As the official tradeshow contractor, Freeman's duties included coordinating both the movement of freight into the Javits Center as well as the unloading of the exhibitors' trucks. See Affirmation of Jay Atherton, Regional Vice President of Freeman, attached to Freeman's Notice of Motion for Summary Judgment, ¶ 2. However, the parties dispute the full scope of Freeman's responsibilities.
Dixon, a member of Local 807 of the Brotherhood of Teamsters, worked for the New York Convention Center Operating Corporation ("NYCCOC") and was assigned to Freeman. After reviewing his assignment, Dixon selected a Clark HiLo forklift with a 5000 pound capacity (the "HiLo"). Clarklift, the owner of the HiLo, leased it to Freeman for use during the Auto Show. Dixon also selected, from a crate outside Freeman's tool room, a pair of "grabbers" — steel sleeves that fit over the forklift's blades to provide a counter-balance to a crate, thus allowing the forklift to lift a crate extending beyond the length of the blades. Freeman owned the grabbers and made them available for forklift operators to use.
The NYCCOC, a public benefit corporation, operates the Javits Center.
Freeman leased approximately 100 forklifts, ranging in capacity from 3000 pounds to 30,000 pounds, as well as other freight moving tools, from Clarklift. Freeman made the forklifts and tools available to NYCCOC workers assigned to the Auto Show.
The testimony conflicts as to whether the grabbers were on the blades of the forklift at the time of the accident. Although Serwatka testified (and the Police Report taken after the accident indicates) that grabbers were on the blades of the HiLo when the skid fell, see 10/6/00 Deposition of Eugene Serwatka ("Serwatka Dep."), attached as Ex. A to the Affirmation of Beth Rex, counsel for Ford and EW, at 74, 77-78, Dixon testified that the grabbers were attached to the side of the forklift, not the blades. See 3/9/01 Deposition of Alvin Dixon, attached as Ex. 3 to Affidavit of Russell Tisman, counsel for Freeman, at 33-34.
After gathering his equipment, Dixon reported to Kenny Hostettor, a Freeman supervisor, who directed him to Serwatka. Using the HiLo, Dixon removed the crates and placed them in a staging area twenty-five to fifty feet away from the truck. Dixon then unloaded a few of the skids of plywood and set them down in an area about fifty feet away. While unloading one of the skids, the plywood fell from the HiLo and pinned Serwatka against his truck. Serwatka alleges that Dixon's use of grabbers caused the skid to fall. As a result of this accident, Serwatka alleges that he sustained severe and disabling injuries. This lawsuit followed.
The construction and/or erection of the exhibit did not occur on the delivery date. Freeman's records indicate that twelve workers were provided the next day for purposes of erecting the exhibit. See Freeman's Services Checklist, attached as Ex. L to Serwatka's Notice of Motion.
Prior to the filing of this action, Serwatka filed suit against the State of New York in the Court of Claims. The Court of Claims found that the NYCCOC, not the State of New York, operated the Javits Center and thus dismissed the case. Serwatka's subsequent request to file a late notice of claim against the NYCCOC was denied.
III. DISCUSSION
A. Section 240(1) of the New York Labor Law
Commonly referred to as the "scaffold law," section 240(1) of New York Labor Law states, in relevant part:
1. All contractors and owners and their agents . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.
N Y Lab. Law § 240(1) (emphasis added). The legislature passed this law to obviate the special hazards "that arise when the work site either is itself elevated or is positioned below the level `where materials or load [are] hoisted or secured.'" Ross v. Curtis Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500-501 (1993) (quoting Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514 (1991)). The law is "designed to place the responsibility for a worker's safety squarely upon the owner and the contractor rather than the worker," Felker v. Corning Inc., 90 N.Y.2d 217, 224 (1997), and imposes absolute liability on owners or contractors for any breach of duty to provide proper protection to those workers engaged in tasks involving elevated heights. See Garcia v. Delta Air Lines, Inc., No. 98 Civ. 7259, 2001 WL 91619, at *2 (E.D.N.Y. Jan. 23, 2001).
The duty imposed by section 240(1) "is nondelegable . . . and an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work." Ross, 81 N.Y.2d at 500. In interpreting section 240(1) courts should attempt to further the "the purpose for which it was framed," Quigley v. Thatcher, 207 N.Y. 66, 68 (1912), however, the language of the section "must not be strained in order to encompass what the Legislature did not intend to include." Martinez v. City of New York, 93 N.Y.2d 322, 326 (1999) (quotation marks and citations omitted)
The parties' dispute over whether Ford, Freeman and EW are liable under section 240(1) focuses on three issues: (1) whether the statute protects the employment or activity in which Serwatka was engaged when he was injured; (2) whether the accident involved the type of height-related risk the section seeks to cover; and (3) whether Freeman, EW and Ford are "contractors" or "owners" under the section.
1. Workers protected by the Statute
To qualify as a member of the "special class for whose benefit liability [under section 240(1)] is imposed," a plaintiff must show that he was "`permitted or suffered to work on a building or structure.'"Mordkofsky v. V.C.V. Dev. Corp., 76 N.Y.2d 573, 576-77 (1990) (quotingWhelen v. Warwick Val. Civic Social Club, 47 N.Y.2d 970, 971 (1979)). Specifically, a plaintiff must demonstrate that his employment involved the "erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure." N.Y. Lab. Law § 240(1).
See also Jock v. Fien, 80 N.Y.2d 965, 968 (1992) (holding that plaintiff's work during the normal manufacturing process did not involve an enumerated activity and therefore he was not entitled to protection under the statute); Gibson v. Worthington Div. of McGraw Edison Co., 78 N.Y.2d 1108, 1109 (1991) (finding that because defendant had not hired plaintiff to perform construction work he "was not a person `employed' to carry out the repairs as that term is used in the [section 240(1)]" and thus "he was not within the class of workers that [the section was] enacted to protect."); Agli v. Turner Constr. Co., Inc., 676 N.Y.S.2d 54, 59 (1st Dep't 1998) (affirming the lower court's dismissal of plaintiff's section 240(1) claim because he "was not employed or engaged in construction at the time of the accident and, instead, was injured in the performance of routine maintenance.").
Serwatka does not fall within the class of workers protected by section 240(1). The "flat and unvarying duty" imposed on owners or contractors only runs to the "one doing the work" described in the section. Koenig v. Patrick Constr. Corp., 298 N.Y. 313, 318 (1948). Thus, in determining whether a plaintiff is protected, the focus "is on the work plaintiff was performing when he was injured." Hutchins v. Finch, Pruyn Co., Inc., 700 N.Y.S.2d 517, 520 (3rd Dep't 1999). In evaluating whether a plaintiff was engaged in a protected activity, New York courts have interpreted section 240(1) somewhat liberally. For example, courts have held that the statute covers those injured while unloading materials in the context of ongoing construction, and those hired to perform construction work and who sustained injuries while engaged in an activity directly related to his duties.
See Covey v. Iroquois Gas Transmission Sys., 89 N.Y.2d 952, 953-54 (1997) (plaintiff was hired to construct a pipeline and was injured while attempting to repair a piece of equipment being used in the ongoing construction); Mosher v. St. Joseph's Villa et al., 584 N.Y.S.2d 678 (4th Dep't 1992) (plaintiff was hired to construct a parking lot and building and was injured while cutting down a tree to clear the land); Brogan v. Int'l Bus. Machs. Corp., 555 N.Y.S.2d 895 (3rd Dep't 1990) (plaintiff was hired to install a deionization polishing system and was injured while moving a tank from the delivery point to the place of installation);Adams v. Fred Alvaro Constr. Corp., Inc., 557 N.Y.S.2d 584, 586 (3rd Dep't 1990) (plaintiff was injured while manually removing supplies from his truck at the direction of defendant and the materials were "to be imminently used in the ongoing construction on [the lot]."); Ploof v. B.I.M., Truck Service Inc., 384 N.Y.S.2d 521 (3rd Dep't 1976) (a truck driver was killed while unloading a shipment of concrete pallets and the unloading was "part of the construction and erection of [a] bridge.").
Here, however, Serwatka was neither unloading the materials nor employed to do construction work. He was hired solely to deliver the exhibit materials to the Javits Center and was merely standing next to his truck when the accident occurred. He took no part in the unloading of the exhibit materials, nor did he engage in any construction related activities. In addition, there was no ongoing construction at the time of the unloading — only delivery activities. The actual construction and/or erection of the Jaguar exhibit began the next morning. To find Serwatka protected under these circumstances would clearly stretch the language of section 240(1) beyond its breaking point.
Indeed, Serwatka testified that the last time he unloaded his truck was ten years prior to the accident.
Under the general provisions of Part 23 of the New York State labor regulations, "construction work" is defined as follows:
All work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures, whether or not such work is performed in proximate relation to a specific building or other structure and includes, by way of illustration but not by way of limitation, the work of hoisting, land clearing, earth moving, grading, excavating, trenching, pipe and conduit laying, road and bridge construction, concreting, cleaning of the exterior surfaces including windows of any building or other structure under construction, equipment installation and the structural installation of wood, metal, glass, plastic, masonry and other building materials in any form or for any purpose.
12 N.Y.C.R.R. § 23-1.4 (13). Serwatka did not perform any activity listed above.
Serwatka argues that even if his employment did not involve actual construction work, nonetheless, because his delivery of the materials was "necessary and integral" to the erection of the Jaguar exhibit, section 240(1) protects him. However, the New York Court of Appeals expressly rejected the use of the "integral and necessary part" test for determining whether a worker's activity falls within the purview of section 240(1), stating that it "improperly enlarges the reach of the statute beyond its clear terms." Martinez, 93 N.Y.2d at 326.
Although the cases relied upon by Serwatka are readily distinguished on their facts, any precedential value they may have had is called into doubt by the New York Court of Appeals's rejection of the "necessary and integral part" test. See Covey, 89 N.Y.2d at 953-54 (affirming the lower court's decision which found the "work performed by plaintiff [to be] an integral and necessary part of the construction") (emphasis added); Adams, 557 N YS.2d at 586 (finding that "the unloading reasonably could be seen as an integral part of defendant's construction work and, therefore, is actionable under Labor Law § 240(1)) (emphasis added); Mosher, 584 N.Y.S.2d at 680 (finding plaintiff's removal of a tree to be "incidental and necessary to the erection of the building") (emphasis added); Brogan, 555 N.Y.S.2d at 898 (noting that the "task plaintiff was performing . . . was an integral part of the contract for the project").
Because Serwatka was neither employed nor engaged in an activity involving the "erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure," he is not entitled to invoke the absolute liability protection afforded under section 240(1). Accordingly, Serwatka's motion for summary judgment is denied and Ford, Freeman and EW's motion for summary judgment with respect to the section 240(1) claim is granted.
As such, the Court need not consider whether the accident involved the type of height-related risk the statute sought to eliminate, or whether Freeman, EW and Ford are "contractors" or "owners" within the meaning of the statute.
B. Section 241(6) of the New York Labor Law
Ford, Freeman and EW also move for summary judgment with respect to Serwatka's claim under section 241(6) of the New York Labor Law. This section provides, in pertinent part:
All contractors and owners and their agents . . . when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:
6. 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.
N.Y. Lab. Law § 241(6) (emphasis added). "[T]he legislative purpose of Labor Law § 241(6) . . . is to protect workers involved in building construction. . . ." Walton v. Devi Corp., 632 N.Y.S.2d 898, 900 (3d Dep't 1995). Similar to section 240(1), to invoke the protection of section 241(6), a plaintiff must have been "permitted or suffered to work on a building or structure," Mordkofsky, 76 N.Y.2d at 576-77 (quoting Whelen, 47 N Y2d at 971), and his employment must involve "construction, excavation, or demolition work." N.Y. Lab. Law § 241(6). To reiterate, Serwatka was hired solely to deliver materials to the Javits Center. In addition, at the time of the accident, no construction, excavation, or demolition work was taking place. Accordingly, Serwatka is not entitled to protection under section 241(6).
The cases cited in footnote 13 also dismissed the section 241(6) claims on the grounds that plaintiffs' employment did not involve "construction work" (in addition to dismissing the claims brought under section 240(1)). For further examples of cases dismissing claims brought under section 241(6), see Watt v. CNG Transmission Corp., No. 95 Civ. 0457, 1996 WL 636011, at *3 (S.D.N.Y 1996), aff'd, 175 F.3d 1009 (2d Cir. 1999) (Table) (finding that plaintiff's transport of equipment used in the construction of a pipeline was not "construction work" within the meaning of section 241(6)); Sajta v. Latham Four P'ship, 723 N.Y.S.2d 716, 718 (3rd Dep't 2001) (stating that "[t]o be afforded the protection of the statute, the worker must be engaged in construction, excavation or demolition which has an impact on the `structural integrity of the building or structure or was an integral part of the construction of a building or structure.'") (citation omitted) (emphasis added); La Clair v. Shelly Elec. Inc., 705 N.Y.S.2d 106, 107 (3rd Dep't 2000) (holding that a truck driver who was injured while walking on a construction site could not sustain a cause of action under Labor Law § 241(6) because he was not engaged in any construction, excavation or demolition work).
C. Section 200 of the New York Labor Law and Common-Law Negligence
Section 200(1) of the New York Labor Law provides:
All places to which this chapter applies shall be 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. The Board may make rules to carry into effect the provisions of this section.
N.Y. Lab. Law § 200(1). Section 200 codifies the common-law duty of an owner or contractor to provide employees with a safe place to work. See Jock, 80 N.Y.2d at 967; see also Yong Ju Kim v. Herbert Constr. Co., Inc., 713 N.Y.S.2d 190, 193 (2d Dep't 2000); Paradise v. Lehrer, McGovern Bovis, Inc., 700 N.Y.S.2d 25, 27 (1st Dep't 1999). To prevail on a section 200 claim, a plaintiff must demonstrate that the owner or contractor "had the authority to `control the activity bringing about the injury to enable it to avoid or correct an unsafe condition.'"Shannon, 118 F. Supp. 2 d at 351 (quoting Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 N.Y.2d 343, 352 (1998)); see also Allen v. Cloutier Constr. Corp., 44 N.Y.2d 290, 299 (1978). Thus, liability may be imposed only if "the defendant exercised control or supervision over the work and had actual or constructive notice of the allegedly unsafe condition." Shannon, 118 F. Supp. 2d at 351; see also Jehle v. Adams Hotel Assocs., 695 N.Y.S.2d 22, 24 (1st Dep't 1999). If a jury could rationally find that the defendant "possessed supervisory control over the work being performed sufficient to prevent the unsafe condition," summary judgment must be denied. Shannon, 118 F. Supp. 2d at 351.
For all intents and purposes, Serwatka's section 200 and negligence claims against Ford, Freeman and EW are identical and will be treated as such. See Shannon v. Lake Grove Ctrs., Inc., 118 F. Supp.2d 343, 351 (E.D.N.Y. 2000) (using the same analysis for plaintiff's section 200 and common law negligence claims).
Although it is not entirely clear from his Complaint, Serwatka seems to assert that Ford, Freeman and EW acted negligently and created an unsafe condition by allowing Dixon to use grabbers while unloading the plywood. In turn, Ford, Freeman and EW argue that they did not exercise any control or supervision over the method of unloading and, therefore, Serwakta's section 200 and negligence claims must be dismissed.
1. Ford and EW
"Claims under [section] 200 `are not sustainable in the absence of proof indicating that defendant exercised actual supervision or control over the work in the course of which plaintiff was injured.'" Garcia, 2001 WL 91619, at *5 (quoting Gonzalez v. United Parcel Serv., 671 N.Y.S.2d 753, 55 (1st Dep't 1998)). Serwatka has submitted no proof that either Ford or EW had any control or supervision over the manner in which the exhibits were unloaded. After arriving at the Javits Center, a Freeman representative directed Serwatka to a spot on the floor for unloading. Dixon, a NYCCOC worker who was assigned to Freeman, unloaded the truck. Nothing in the record demonstrates that Ford or EW had any role in supervising, directing or instructing Dixon on what equipment to use or how the materials were to be unloaded. As such, the section 200 and negligence claims against Ford and EW must be dismissed.
At most, EW may have had a role in directing the placement of the materials after they were unloaded. See 4/18/01 Deposition of Randy Tauriainen, EW's Project Manager, attached as Ex. O to Serwatka's Notice of Motion, at 19-20. This is insufficient to establish the requisite control or supervision.
Although the argument was not raised, the Court further notes that there is no evidence demonstrating that Ford or EW had constructive or actual knowledge of the use of grabbers at the Auto Show.
2. Freeman
Unlike Ford and EW, Serwatka has set forth enough evidence for a jury to find that Freeman possessed sufficient supervisory control over the unloading to prevent the allegedly unsafe condition caused by Dixon's use of grabbers. Richard Demeter, Freeman's Operations Manager, testified that Freeman was responsible for unloading the exhibit materials and delivering them to exhibitors at given locations within the Javits Center. See 1/22/01 Deposition of Richard Demeter ("Demeter Dep."), attached as Ex. G to Serwatka's Notice of Motion, at 44-45. When Serwatka arrived at the Javits Center, it was a Freeman representative who checked his paperwork (which detailed the nature of the exhibit materials) and directed him onto the Javits Center floor. Freeman also procured the necessary unloading equipment, assigned Dixon to Serwatka, and made the unloading equipment, including the forklift and grabbers, available for Dixon's use.
Freeman argues that its responsibilities did not rise to the necessary level of control or supervision to find it liable. In support of its argument, Freeman cites to Aragon v. 233 West 21st St., Inc., 607 N.Y.S.2d 642 (1st Dep't 1994) and Warnitz v. Liro Group Ltd., 678 N.Y.S.2d 910 (2d Dep't 1998). However, Freeman's reliance on these cases is misplaced. In Aragon, the court stated that the dispatching of persons "to observe the progress and method of the work" does not rise to the necessary level of supervision to render a property owner liable for an accident occurring at a worksite. Aragon, 607 N.Y.S.2d at 643-44. InWarnitz, the court recognized the principle that a construction manager's general duty to supervise a worksite is insufficient to hold the construction manager liable for the negligence of a contractor who performs the day-to-day operations. See Warnitz, 678 N.Y.S.2d at 911. In contrast, Serwatka has offered evidence demonstrating that Freeman's responsibilities went beyond a "general duty to supervise" and it did more than just "observe the progress and method" of the unloading.
Freeman further argues that a collective bargaining agreement between the NYCCOC and Dixon's union prohibited Freeman from exercising any control or supervision over Dixon's activities. However, regardless of the terms of the agreement (it was not produced to the Court), Serwatka has produced evidence showing that Freeman exercised some degree of control or supervision over the unloading. Indeed, it was Freeman who made the grabbers available for Dixon's use.
Accordingly, Freeman's motion for summary judgment with respect to Serwatka's section 200 and negligence claims is denied.
D. The Claims Asserted Against Clarklift
Serwatka's Complaint asserts strict products liability and negligence claims against Clarklift. Serwatka, however, in his Opposition to Clarklift's Motion for Summary Judgment, failed to respond to Clarklift's arguments concerning the strict products liability claims. Although Serwatka has seemingly abandoned these claims, the Court will nonetheless consider them.
1. Strict Products Liability
Serwatka asserts that Dixon reduced the HiLo's load capacity by adding grabbers, thereby causing it to tip and the skid to fall on him. However, his attempt to hold Clarklift strictly liable for "allowing or permitting" the HiLo to be modified with grabbers, has no basis in law or fact.
Clarklift leased the HiLo to Freeman and a commercial lessor, just as a product manufacturer, may be held strictly liable for injuries resulting from a defective product. See Winckel v. Atlantic Rentals Sales, Inc., 557 N.Y.S.2d 951, 954 (2d Dep't 1990). But a "manufacturer [or commercial lessor] is not responsible for injuries resulting from substantial alterations or modifications of a product by a third party that render the product defective or otherwise unsafe," see Liriano v. Hobart Corp., 92 N.Y.2d 232, 236 (1998); see also Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, 475 (1980), unless the "product is purposefully manufactured to permit its use without a safety feature."Liriano, 92 N.Y.2d at 238; see also Lopez v. Precision Papers, 67 N.Y.2d 871, 873 (1986).
Serwatka does not assert, nor does his expert opine, that the HiLo was defectively designed or manufactured, or had any other defect at the time Clarklift leased it to Freeman. See Expert Disclosure, attached as Ex. I to Affirmation of Timothy Shanley, counsel for Clarklift. Further, Serwatka has not submitted any evidence demonstrating that Clarklift added the grabbers to the forklift, supplied grabbers to Freeman, or had any involvement in Dixon's decision to use grabbers. Nor has Serwatka provided the Court with evidence indicating that the HiLo was designed to permit its use with grabbers, that Clarklift knew that forklift operators were using grabbers to unload plywood skids, or that the use of grabbers caused the HiLo to tip in prior accidents. As such, Serwatka's strict product liability claims must be dismissed.
1. Negligence
Under New York law, "a plaintiff must establish three elements to prevail on a negligence claim: `(1) the existence of a duty on defendant's part as to plaintiff; (2) a breach of this duty; and (3) injury to the plaintiff as a result thereof.'" 210 F.3d 111, 14 (2d Cir. 2000) (quotingAkins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 333 (1981)). Serwatka contends that Clarklift owed Serwatka a duty to take reasonable steps to see that grabbers were not used on its forklifts. According to Serwatka, Clarklift's failure to take such steps constituted a breach of such duty and was the proximate cause of his injuries. Clarklift argues that it did not owe a duty to Serwatka and therefore his negligence claim must be dismissed.
a. Duty
The existence of a duty is "a sine qua non of a negligence claim: `In the absence of a duty, as a matter of law, no liability can ensue.'"Alfaro, 210 F.3d at 114 (quoting McCarthy v. Olin Corp., 119 F.3d 148, 156 (2d Cir. 1997) (quotation marks omitted); see also Strauss v. Belle Realty Co., 65 N.Y.2d 399, 402 (1985) ("A defendant may be held liable for negligence only when it breaches a duty owed to the plaintiff."). "The question of the existence and scope of an alleged tortfeasor's duty `is, in the first instance, a legal issue for the court to resolve.'"Alfaro, 210 F.3d at 114 (quoting Waters v. New York City Hous. Auth., 69 N.Y.2d 225, 229 (1987)).
A defendant "generally has `no duty to control the conduct of third persons so as to prevent them from harming others, even where as a practical matter defendant can exercise such control.'" Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 223 (2001) (quoting D'Amico v. Christie, 71 N.Y.2d 76, 88 (1987)); see also Purdy v. Public Adm'r of County of Westchester, 72 N.Y.2d 1, 8 (1976). A duty may arise, however, where the defendant has a relationship with the third-person "thatencompasses defendant's actual control of the third person's actions, or between defendant and plaintiff that requires defendant to protect plaintiff from the conduct of others." Hamilton, 96 N.Y.2d at 223 (emphasis added). Such relationships, for example, include master and servant, parent and child, and common carriers and their passengers. See id. "The key in each [of these relationships] is that the defendant's relationship with either the tortfeasor or the plaintiff places the defendant in the best position to protect against the risk of harm." Id.
In this case, Clarklift neither had control over Dixon's decision to use grabbers nor was it in the best position to stop him. The lease agreement required Freeman to ensure the HiLo's proper operation (including that it be operated by qualified personnel) and to "prohibit anyone other than [Clarklift's] authorized personnel to repair or adjust the [HiLo]." Lease Agreement, attached as Ex. 1 to Affidavit of Robert Riddle, President of Clarklift, in Support of Clarklift's Motion for Summary Judgment, ¶ 4. Freeman procured the grabbers and made them available for Dixon's use. Given that Serwatka has proffered no evidence that Clarklift supplied the grabbers, encouraged or had control over their use, or knew that they were being used to unload skids, his negligence claims against Clarklift must be dismissed.
IV. CONCLUSION
To summarize:
1. Serwatka's Motion for Partial Summary Judgment is denied.
2. Ford and EW's Motion for Summary Judgment is granted in its entirety and all claims and/or cross-claims against Ford and EW are hereby dismissed.
3. Freeman's Motion for Summary Judgment is granted in part and denied in part. Summary judgment is granted with respect to Serwatka's claims under sections 240(1) and 241(6) of the New York Labor Law. Summary judgment is denied as to Serwatka's section 200 and negligence claims.
4. Clarklift's Motion for Summary Judgment is granted in its entirety and all claims and/or cross-claims against Clarklift are hereby dismissed.
A conference is scheduled for October 29, 2001 at 3:30 p.m.