Opinion
1124/01.
Decided March 29, 2005.
Upon the foregoing papers, defendants New York City Transit Authority (the NYCTA) and the City of New York (the City) move for partial summary judgment, pursuant to CPLR 3212, dismissing plaintiff's first cause of action alleging defendants' common law negligence and violation of Labor Law §§ 200, 240 (1) and 241 (6).
Plaintiff's second cause of action sounds in negligent supervision.
Background
On April 12, 2000, plaintiff Milton Spence received an electric shock and sustained a burn injury to his right hand while working on the West End Signal Project (involving an upgrade of the railroad signal system) at the 38th Street train yard, located in Brooklyn and owned either by the NYCTA or the City.
Defendants admit in their answer to the complaint and moving papers herein that the City owns the 38th Street train yard. However, defendants assert in their reply papers, and plaintiff's expert in her affidavit, that said property is actually owned by the NYCTA, and not the City.
Non-party Mass Electric Construction Co. (Mass Electric) performed certain electrical work on the project pursuant to a sub-contract agreement between Mass Electric and the project's prime contractor, non-party Alstrom Signaling. Plaintiff was employed by Mass Electric as an electrician on the project and, except for his personal hand tools, received all of his work equipment from Mass Electric. He received all of his work-related instructions and supervision from Mass Electric's site foreman, Damien Cole.
On the date of the accident, plaintiff was instructed by Mr. Cole to install fiberglass conduits to a railroad tie, an activity that required plaintiff to work within close proximity to the energized third rail, but not on the live rail itself. At his examination before trial, plaintiff testified that he could not recall how the accident occurred. It appears from the record, however, and the parties do not dispute, that the accident probably occurred when a ratchet being used by plaintiff somehow made contact with the third rail or with a bolt attached to the third rail. An explosion resulted, causing plaintiff to sustain the aforementioned burn injury to his right hand.
Although insulated gloves, insulating materials for hand tools and seven-foot rubber mats were all allegedly made available at the work site by Mass Electric for the use of its employees, plaintiff, at the time of his accident, was working near the energized third rail without the benefit of insulated gloves, with an uninsulated ratchet and with a rubber mat that was only three-feet long.
Defendants now move for partial summary judgment dismissing plaintiff's common law negligence and Labor Law §§ 200 and 240 (1) causes of action for plaintiff's failure to show their applicability herein, and dismissing plaintiff's Labor Law § 241 (6) cause of action on the ground that plaintiff cannot demonstrate defendants' violation of any applicable provision of the Industrial Code and because plaintiff's own actions were the sole proximate cause of his accident and injuries.
Discussion
A motion for summary judgment will be granted if, upon all the papers and proof submitted, the cause of action or defense is established sufficiently to warrant directing judgment in favor of any party as a matter of law (CPLR 3212[b]; Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966, 967; Zuckerman v. City of New York, 49 NY2d 557, 562; Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404).
Plaintiff's Labor Law § 240 (1) claim must be dismissed, as it is undisputed on the record that plaintiff's accident was not gravity-related ( Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494; Rocovich v. Consolidated Edison, Co., 78 NY2d 509, 514). Plaintiff was not working at elevation and he was injured neither by a fall from elevation nor as a result of being struck by a falling object that was required to be secured ( see Narducci v. Manhasset Bay Associates, 96 NY2d 259).
Upon its thorough review of the record, the court further finds that defendants have made a prima facie showing of their entitlement to summary judgment dismissing plaintiff's Labor Law § 200 and common law negligence claims and that plaintiff, in response, has failed to rebut said showing with admissible evidence sufficient to raise a legitimate question of fact requiring a trial of those issues.
Labor Law § 200 is nothing more than a codification of the common law duties of landowners and general contractors to provide workers with a reasonably safe place to work ( see Comes v. New York State Electric Gas Corp., 82 NY2d 876; Allen v. Cloutier Construction Corp., 44 NY2d 290). Thus, "[l]iability will be imposed upon an owner or general contractor under Labor Law § 200 only where the plaintiff's injuries were sustained as the result of a dangerous condition at the work site, rather than as a result of the manner in which the work was performed, and then only if the owner or general contractor exercised supervision and control over the work performed at the site or had actual or constructive notice of the unsafe condition causing the accident" ( Begor v. Mid-Hudson Hardwoods, Inc., 301 AD2d 550).
Here, defendants have established, prima facie, their entitlement to summary judgment as a matter of law by demonstrating, through the proffered deposition testimony and affidavit evidence, that plaintiff's injuries were caused by unsafe work methods and that defendants neither had nor exercised any authority, other than their general authority as owners, to control or supervise the particular work being performed by plaintiff at the time of his accident, did not own or supply the allegedly unsuitable or unsafe work materials, and did not have notice of the particular dangerous condition caused by plaintiff's failure to use insulated gloves and tools, and his claimed use of an allegedly unsuitable rubber mat, near the energized third rail ( see Morgan v. Rosselli, 9 AD3d 417; Wilson v. City of New York, 7 AD3d 266; Scott v. American Museum of Natural History, 3 AD3d 442).
As such, it was incumbent upon plaintiff, in opposing the motion, to lay bare his proof by presenting evidence in admissible form demonstrating the existence of a material issue of fact requiring a trial of this matter ( see Alvarez v. Prospect Hospital, 68 NY2d 320; Montour v. City of New York, 270 AD2d 236).
Plaintiff opposes this branch of defendants' motion on the grounds, inter alia, that defendants' inspectors allegedly monitored the work being performed at the job site and the employees performing those jobs, completed daily reports, created safety rules, held safety meetings, were responsible for monitoring safety conditions, possessed the authority to stop work if they observed an unsafe condition, and had notice of the unsafe condition which led to plaintiff's accident.
As a threshold matter, the court notes that the "inspectors" in question were both employed by the NYCTA, and not by the City, and, in addition to the unresolved question as to whether the City was an owner of the property and a proper defendant herein, there is no evidence that the City or its representatives were ever even present at the job site — thus requiring dismissal of these claims as against the City.
The court additionally notes that there is no support on the record for plaintiff's counsel's assertion that NYCTA inspectors exercised any or requisite supervision over Mass Electric's foreman so as to render defendants liable to plaintiff herein under common law negligence and Labor Law § 200 theories. Furthermore, the court finds that plaintiff's present, October 29, 2004, affidavit materially contradicts his prior, November 15, 2001, sworn deposition testimony, and appears to project only feigned factual issues, purposefully crafted to offset the granting of summary judgment ( see Harty v. Lenci, 294 AD2d 296; McGuire v. Quinnonez, 280 AD2d 587; Smith v. Taylor, 279 AD2d 566; Garcia v. New York City Industrial Development Agency, 279 AD2d 328; Barretta v. Trump Plaza Hotel and Casino, 278 AD2d 262; Phillips v. Bronx Lebanon Hospital, 268 AD2d 318).
In any event, it is well established that an owner or general contractor's general duty to supervise safety on the job site, authority to stop the work in a case of a safety violation, actual observation of the work on the site, or retention of contractual inspection privileges is insufficient to constitute their control over the subcontractor's employees or manner in which the work was performed ( see Sainato v. City of Albany, 285 AD2d 708, 709; Musselman v. Gaetano Construction Corp., 285 AD2d 868, 870; Bright v. Orange Rockland Utilities, Inc., 284 AD2d 359, 360; Sprague v. Peckham Materials Corp., 240 AD2d 392, 394; McNulty v. Executive Kitchens, Ltd., 294 AD2d 411). Here, the record demonstrates nothing more.
In his sworn affidavit, John Hamilton, Mass Electric's Project Manager for the subject project, asserts that plaintiff was supervised by and received all of his work instructions from Mass Electric. Plaintiff similarly testified at his deposition that he received his work instructions from Mass Electric's foreman, Mr. Cole, and, upon arriving at the train yard on the morning of the accident, received specific work instructions from Mr. Cole. According to plaintiff's deposition testimony, no one from the NYCTA ever instructed him how to do his work or with respect to the specific fiberglass installation task and, in his proffered affidavit, he acknowledges that, at 12:40 p.m., just five minutes before the accident occurred, it was Mr. Cole who instructed him to install fiberglass conduit in close proximity to the live third rail.
Roosevelt Gervais, the NYCTA's resident engineer at the project site, testified at his deposition that his responsibility was to monitor the job to ensure that it was proceeding according to NYCTA specifications. Although he had the right to stop the work and call the Mass Electric foreman if he observed a safety violation, Mass Electric was responsible for checking its workers' rubber mats to ensure they were the proper size for the work being performed; he was not responsible for checking Mass Electric's employees' tools at the start of the workday; and he was not present when the accident occurred.
Kenneth C. McMahon, a NYCTA Field Inspector, testified that his duties at the job site were to make sure that the contractor followed the NYCTA contract specifications. He further testified that, although the NYCTA provided the layouts and specifications for the new signal equipment, the contractors were responsible for the ways and means by which the new equipment was installed on the property, and he did not tell Mass Electric how to perform the installation. According to Mr. McMahon, Mass Electric furnished all materials and tools to their employees and employed its own full-time safety representative at the job site, whose responsibility it was to check on all safety equipment. Mr. McMahon never directed the work of any Mass Electric employee and never told any employee what work needed to be performed. Plaintiff and other Mass Electric workers did not need his permission to move from or to work in different locations. Mr. McMahon had not been at the rail yard for two months prior to the accident and, at the time of the accident, was having lunch in a tower at the rail yard.
Nicholas V. Faello, Mass Electric's Safety Engineer, similarly testified that he was responsible for safety training employees, making daily inspections at the work site and ensuring that the employees were following the safety rules. When he was unable to be present at the work site, a Mass Electric foreman was assigned to supervise the crew and enforce safety regulations.
The record further demonstrates that the daily reports completed by the NYCTA "inspectors" and attempted to be relied upon by plaintiff in opposition herein were a means of tracking the work's progress according to the NYCTA's specifications. The reports noted the activities for the day — what equipment was installed, where and at what time, the tools and amount of material used and the names of the flagmen and crews.
Here, contrary to plaintiff's assertions, the record undisputedly demonstrates that defendants did not specifically direct Mass Electric's method or manner of work and did not direct plaintiff or the other workers "regarding specific tasks" ( see Carney v. Allied Craftsman General Contractor's, Inc., 9 AD3d 823; Dos Santos v. STV Engineers, Inc., 8 AD3d 223; Parisi v. Loewen Development of Wappinger Falls, L.P., 5 AD3d 648; Dalanna v. City of New York, 308 AD2d 400; Dennis v. City of New York, 304 AD2d 611; Alexandre v. City of New York, 300 AD2d 263, 264; cf. Spagnuolo v. Port Authority of New York and New Jersey, 8 AD3d 64).
Moreover, the fact that defendants were aware of the live third rail is insufficient to constitute notice of the particular hazardous condition at issue, since the records discloses that the work being performed at the time of plaintiff's accident is commonly and routinely done under and in the vicinity of live rail conditions, as is work on the third rail itself, and because the hazardous condition leading to plaintiff's accident and injury clearly resulted, not from the live rail itself, but from a failure to supply, to use and/or to properly use properly insulated tools and materials. Moreover, the method of work performance was clearly under Mass Electric's control, including the decision whether or not to request that the third rail be de-energized during the course of the work.
The court has considered plaintiff's remaining arguments on this issue, and rejected them as being without merit. There is absolutely no evidence that defendants had notice of the specific hazardous condition which led to this accident and, even if such notice were demonstrated, mere notice of unsafe methods of performance is not enough to hold the owner or general contractor liable under Labor Law § 200 in the absence of supervisory control and where, as here, the injury results from the contractor's unsafe work methods or tools ( see Colon v. Lehrer, McGovern Bovis, Inc., 259 AD2d 417, 419; see also Sprague, 240 AD2d at 394).
Because there is no basis on this record for plaintiff's common law negligence and Labor Law § 200 claims against defendants, those claims must be dismissed ( see Rice v. City of Cortland, 262 AD2d 770, 772-773; see also Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 NY2d 343, 353; Lombardi v. Stout, 80 NY2d 290, 295; Bateman v. Walbridge Aldinger Co., 299 AD2d 834, 836).
Turning to plaintiff's Labor Law § 241 (6) cause of action, Labor Law § 241 (6) places a non-delegable duty upon owners to "provide reasonable and adequate protection and safety" for their workers in accordance with the rules and regulations promulgated thereunder ( see Comes, 82 NY2d at 878; Ross, 81 NY2d at 503). The statute imposes absolute liability on owners for violations of the provisions of that section where such violation proximately causes a plaintiff's injury, irrespective of the owner's lack of control or supervision over the work site ( Rizzuto, 91 NY2d at 348-349; Allen, 44 NY2d 290, 300).
In order to establish his Labor Law § 241 (6) claim, plaintiff must demonstrate that his injuries were proximately caused by a violation of an Industrial Code regulation that is applicable given the circumstances of the accident, and which sets forth a concrete or "specific" standard of conduct, rather than a provision which merely incorporates common law standards of care ( Ross, 81 NY2d at 503-505; Ares v. State, 80 NY2d 959, 960; Fair v. 431 Fifth Avenue Assocs., 249 AD2d 262, 263; Vernieri v. Empire Realty Co., 219 AD2d 593, 597; Adams v. Glass Fab, Inc., 212 AD2d 972, 973). Plaintiff must also present some factual basis from which a court may conclude that the regulation was in fact violated ( Herman v. St. John's Episcopal Hospital, 242 AD2d 316, 317; Creamer v. Amsterdam H.S., 241 AD2d 589, 591).
As to the instant matter, plaintiff, in opposition to defendants' motion, fails to argue that liability pursuant to Labor Law 241 (6) can be established herein on the basis of defendants' alleged violations of 12 NYCRR §§ 23-1.5, 23-1.6 and 23-1.10, as those sections are clearly either non-concrete or inapplicable under the facts of this matter and, thus, serve as insufficient premise for a viable cause of action under Labor Law § 241 (6). Plaintiff, however, contends that his Labor Law § 241 (6) claim is properly asserted based upon defendants' alleged violation of 12 NYCRR § 23-1.13 (b) (4).
12 NYCRR § 23-1.13 (b) (4) (Electrical Hazards, Protection of Employees) "requires that workers who may come into contact with an electric power circuit be protected against electric shock 'by de-energizing the circuit and grounding it or by guarding such circuit by effective insulation or other means'" ( Lorefice v. Reckson Operating Partnership, L.P., 269 AD2d 572, 572-573, quoting Snowden v. New York City Transit Authority, 248 AD2d 235, 236).
Section 23-1.13 (b) (4) is sufficiently concrete to support a Labor Law § 241 (6) claim ( see Nankervis v. Circuit City Stores, Inc., 2002 WL 1363264, *1 [NY Sup], 2002 NY Slip Op. 50228[U], citing Bardouille v. Structure-one, Inc., 282 AD2d 635, Lorefice, 269 AD2d at 572; Adams v. Owens-Corning Fiberglass Corp., 260 AD2d 877 and Snowden, 248 AD2d at 235).
Construing the evidence in a light most favorable to plaintiff ( see Weiss v. Garfield, 21 AD2d 156, 158) and, to the extent defendants, by references to the deposition testimony and submission of their own expert's affidavit, have established a prima facie case of their entitlement to summary judgment on this issue, the court finds that plaintiff has effectively rebutted that showing by his own expert's affidavit and demonstrated the existence of legitimate questions of fact requiring a trial of this matter. Specifically, on this record, the court finds that triable issues remain as to whether the protective equipment provided to and/or utilized by plaintiff was sufficient to satisfy the "other means" requirement of 12 NYCRR § 23-1.13 (b) (4), whether that section was violated and whether such violation was a proximate cause of plaintiff's accident ( see Bardouille, 282 AD2d at 636).
With respect to the issue of proximate cause, whereas a violation of Labor Law § 240 (1) gives rise to both vicarious and absolute liability, a § 241 (6) violation results in vicarious, but not in absolute, liability and comparative negligence is a defense thereto ( see Rizzutto, 91 NY2d at 349-350; Ryan v. Morse Diesel, Inc., 98 AD2d at 615).
Here, there remains a triable issue — given plaintiff's alleged conduct in unreasonably failing to use insulated clothing, tools and equipment that were allegedly available to him; in the case of the rubber mat, in improperly using or placing equipment; and his purported violation of 12 NYCRR § 23-1.6 — as to whether plaintiff either shares liability for, or was the sole proximate cause of and, thus, wholly liable with respect to, his accident, thereby precluding summary judgment ( see Lorefice, 269 AD2d at 573 [summary judgment precluded by triable issues as to plaintiff's comparative negligence in allegedly knowingly risking an electrical shock and failing to use an available insulated mat]; Snowden, 248 AD2d at 236 ["issues of fact exist as to whether the mats given to plaintiff provided effective insulation, whether plaintiff was negligent in his placement of the mats or otherwise, and the proximate cause of plaintiff's injuries"], citing Drago v. New York City Transit Authority, 227 AD2d 372; Nankervis, 2002 WL 1363264 at *1 [with respect to a § 241 (6) claim alleging a violation of 12 NYCRR § 23-1.13 (b) (4), "plaintiff's alleged failure to follow the instructions of his supervisor may be raised by the defendants through the defense of comparative negligence"]; see also Blake v. Neighborhood Housing Services of New York, 1 NY2d 280; Nelson v. Ciba-Geigy, 268 AD2d 570, 572).
12 NYCRR § 23-1.6 "provides, in pertinent part, that an employee 'shall use the safety devices provided for his personal protection and he shall not tamper with or render ineffective any safety device, safeguard or personal protective equipment'" ( Sdregas v. City of New York, 309 AD2d 612 [2003]).
Conclusion
Based upon all of the foregoing, defendants' motion is granted to the extent that plaintiff's claims sounding in common law negligence and violations of Labor Law §§ 200 and 240 (1) are hereby dismissed and the motion is otherwise denied, except that defendants have leave to renew, upon a proper showing, so much of the motion as seeks dismissal of the action as against the City on the ground that the City was not an owner of the subject property.
The foregoing constitutes the decision and order of this court.