Opinion
2007-0140.
Decided June 30, 2008.
STANLEY LAW OFFICES, LLP, BY:RICHARD E. CLARK, ESQ., OF COUNSEL, OFFICE POST OFFICE ADDRESS: SYRACUSE, NY, COUNSEL FOR PLAINTIFF.
WEGMANS FOOD MARKETS, INC., SMITH, SOVIK, KENDRICK SUGNET, P.C., BY:KEVIN E. HULSLANDER, ESQ. and MICHELLE M. WESTERMAN, ESQ., OF COUNSEL OFFICE POST OFFICE ADDRESS: SYRACUSE, NY, COUNSEL FOR DEFENDANT.
HUNT ENGINEERS, ARCHITECTS, AND LAND SURVEYORS, P.C.: SHANTZ BELKIN, BY:FREDERICK F. SHANTZ, ESQ., OF COUNSEL, OFFICE POST OFFICE ADDRESS, LATHAM, NY, COUNSEL FOR DEFENDANT.
Defendant Wegmans Food Market Inc. (hereinafter "Wegmans") moves for summary judgment dismissing plaintiff's complaint alleging violations of common law negligence and Labor Law §§ 200, 240 (1), and 241 (6), as well as all cross-claims.
Defendant Hunt Engineers, Architects and Land Surveyors, P.C. also moves for summary judgment dismissing plaintiff's complaint, as well as Wegmans' cross-claim.
Plaintiff Joseph Fassett opposes both motions.
BACKGROUND
This accident occurred at a construction site for the development of a new Wegmans food market at 500 S. Meadow Street in Ithaca, New York (hereinafter the "Project"). As part of said Project, Wegmans entered into a construction contract with Fahs Rolston Paving Corp. (hereinafter "Fahs") for the excavation and disposal of existing sidewalks, installation of new sidewalks, and grading on the site. Wegmans also entered into a contract with Hunt Engineers, Architects and Land Surveyors, P.C. (hereinafter "Hunt") in which Hunt agreed to act as the "resident project representation for sidewalk reconstruction" for Wegmans on said Project.
At all times pertinent herein, plaintiff was employed as a heavy equipment operator with Fahs assigned to the Wegmans Project as the Fahs foreman. Plaintiff had been on the job site for a few days prior to this accident. Plaintiff recalled that on the first day of the job he put up a security fence with his crew. Next, plaintiff recalled speaking to Larry Smith, an engineering technician with Hunt, regarding whether the drain inside the trench should be installed before or after ripping out the existing sidewalk. Plaintiff told Smith the drain should be installed first, while Smith opined the existing sidewalk should be removed first. Ultimately, according to plaintiff, Smith ordered plaintiff to remove the existing sidewalk before installing the drain. Plaintiff stated he followed Smith's instructions because he believed Smith had the authority to control the method and manner of work (Wegmans Ex H [plaintiff's deposition], pp 39-40). Plaintiff stated he never spoke to anyone from Wegmans regarding this decision.
The next day plaintiff recalls going to the job site but being unable to work because of heavy rain. Plaintiff indicated that the decision not to work was made by both his own employer, Fahs, as well as Smith on behalf of Hunt (Wegmans Ex H, p 45).
The next morning, September 24, 2004, plaintiff returned to the job site. Plaintiff described the weather conditions at the time as misting, but not a heavy rain. Plaintiff stated that he initially spoke with Smith that morning regarding the wet working conditions and Smith told plaintiff to check with his own employer as to whether work should commence for the day (Wegmans Ex H, p 59). Plaintiff telephoned Gene Hayes at Fahs and was told "go ahead and finish, we've got to get it done" (Wegmans Ex H, p 58).
Due to the heavy rain from the prior day, the area from which the sidewalk had been torn out was filled with water (Wegmans Ex H, p 44). Plaintiff stated he spent about an hour emptying the water from the trench by carting water away in buckets and dumping it into a nearby catch basin which, according to plaintiff, would not have been required if Smith had listened to him and allowed the drain to be installed first (Wegmans Ex H, p 46). Nevertheless, plaintiff completed the task of removing the standing water and resumed digging up the sidewalk again. At approximately 9:30 a.m., plaintiff decided to take a coffee break.
This accident occurred as plaintiff climbed out of the backhoe, owned by Fahs, slipped on mud on the backhoe's step and fell onto the broken up pieces of concrete below. Plaintiff stated that it was mud from his own work boots that had accumulated on the step that caused the slippery condition (Wegmans Ex H, p 54).
Plaintiff described the accident as follows:
When I went to get out of the backhoe-because he had it busted up, the concrete, and I — you pull it towards you, and then you break more up and try to pull it so it's in pieces like this (indicating), instead of a whole slab, and when I was getting out of the backhoe, I slipped and when I fell up, I fell off, I fell onto chunks of the concrete, and that's when I broke my ankle (Wegmans Ex H, p 48).
* * *
You get out of the machine-what I do is turn around and back down so you can use your handrails. When I was turning is when I slipped off the top. It's got like a platform and then a step — there's a platform and a step, and then you step off. I slipped off the platform . . . right when I was going to grab the rails (Wegmans Ex H, p 49).
* * *
It's actually the box the battery is in. If I could explain it a little better, it's not like a step. I mean it's a step you use to get out of the machine and in the machine, but the actual steps on the bottom of that, on the side, it's more like a box. There's some models that year, like, a toolbox under there, but that particular one the battery was in there (Wegmans Ex H, p 52).
It was determined days later that plaintiff had broken his ankle in the fall, ultimately requiring four surgeries including fusion surgery.
This action was commenced upon the filing of a summons and complaint on January 12, 2007. Wegmans interposed an answer on February 16, 2007 with a cross-claim for indemnification and/or contribution against Hunt. Hunt interposed an answer on February 21, 2007 with a cross-claim for indemnification and/or contribution against Wegmans.
By way of these motions, defendants seek dismissal of the complaint and all cross-claims.
Plaintiff opposes the motions, but withdrew his Labor Law § 240 (1) cause of action. The court heard oral arguments from counsel on May 15, 2008 addressing the remaining causes of action under common law negligence and Labor Law §§ 200 and 241 (6).
DISCUSSION
I. Common-law negligence and Labor Law § 200
Labor Law § 200 is "[a] codification of the common-law duty of an owner or contractor to exercise reasonable care to provide workers with a safe place to work [citations omitted]" ( Miller v Wilmorite, Inc., 231 AD2d 843, 843). It is well-settled that "[g]eneral supervisory authority at the work site for the purpose of overseeing the progress of the work and inspecting the work product has been found insufficient to establish a cause of action under Labor Law § 200 [citations omitted]" ( Riccio v Shaker Pine, Inc., 262 AD2d 746, 748, lv denied 93 NY2d 1042). Moreover, the fact of "[m]ere retention of contractual inspection privileges or a general right to supervise does not amount to control sufficient to impose liability, and that where the injury is due to the method of work, Labor Law § 200 and common law negligence claims must be dismissed in the absence of proof of the owner's actual control, notwithstanding the existence of questions of fact regarding an owner's contractual right of control [citations omitted])" ( Brown v New York City Economic Dev. Corp., 234 AD2d 33, 33; emphases in original). Once supervision or control of a worksite is established, liability for common law negligence and Labor Law § 200 will only be imposed if the owner had actual or constructive notice of the allegedly dangerous condition ( Comes New York State Electric and Gas Corp., 82 NY2d 876, 878; Riccio, 262 AD2d at 747-748; Rapp v Zandri Const. Corp., 165 AD2d 639, 642). The court will address these principles with respect to defendants Wegmans and Hunt separately.
A. WEGMANS
Wegmans argues plaintiff's common law negligence and Labor Law § 200 claim should be dismissed because Wegmans did not exercise any actual control and/or supervision over plaintiff's work. In support of this position, Wegmans relies primarily on the deposition testimony of Paul Lehrer, Wegmans' senior project manager in its construction division. Lehrer concedes that Wegmans retained the contractual authority to halt work and/or to object to work that did not conform to contract specifications (Wegmans Ex J [Standard General Conditions], p 10, ¶ 2.1.2). However, Lehrer also stated that he was never physically present on the worksite, but rather was based in a remote office in Rochester (Wegmans Ex F, p 14). In fact, Lehrer indicated that he was unaware of this accident until the lawsuit was commenced (Wegmans Ex F [Lehrer's deposition], p 17). Wegmans also cites plaintiff's own deposition testimony confirming that he never dealt with Lehrer or any other Wegmans employee (Wegmans Ex H, p 61). Based upon the foregoing, the court finds that Wegmans has met its initial burden establishing that it did not exercise actual control or supervision of plaintiff's work.
In opposition, plaintiff argues that Wegmans retained the control to stop the work and can be charged with notice through its agent Hunt. In the first instance, the court notes that the Wegmans-Hunt contract specifically states that Hunt is not acting as Wegmans agent (Ex I [Consulting Services Agreement], Article 12, p 4). In any event, plaintiff has failed to come forward with any proof establishing Wegmans exercised any actual control or supervision of plaintiff's work beyond a contractual right to do so. Plaintiff's expert submission from expert Richard L. Elander, P.E. contains only speculation and does not contain a discussion of any engineering standards. Moreover, the court notes that even if Wegmans were to have been found to have exercised actual supervision or control at the worksite, there is no proof that Wegmans had actual or constructive notice of the allegedly dangerous condition. Lehrer testified that he had never been contacted by anyone regarding weather conditions at the Project nor was he contacted to help determine whether work should be halted due to weather conditions. Finally, plaintiff's own testimony clearly stated that it was mud from his work boots on the morning of the accident that caused the slippery condition making it impossible to charge Wegmans with constructive notice of an allegedly dangerous or defective condition that had only just occurred that morning.
In sum, the court finds no proof that plaintiff ever received instructions from any of Wegmans' employees regarding how or where to conduct his work. Although it is undisputed that Wegmans retained a contractual right to stop work for unsafe activity, there is no proof that defendants ever exercised actual supervision and control of the method of plaintiff's work. Accordingly, Wegmans' motion for summary judgment dismissing plaintiff's common law negligence and Labor Law § 200 cause of action is granted.
B. HUNT
Defendant Hunt also cross-moves for dismissal of plaintiff's common-law negligence and Labor law § 200 cause of action. In support of its cross-motion, Hunt focuses on its role as consulting engineer, not general contractor. In short, Hunt argues that a consulting engineer is not the functional equivalent of a contractor and, as such, can not as a matter of law be held to have exercised actual control or supervision over plaintiff's work.
The court finds that Hunt has failed to meet its burden in this regard. According to plaintiff, Smith directed him to remove the old sidewalk before installing the drain (Wegmans Ex H [plaintiff's deposition], pp 37-38 109-110). Plaintiff further alleges that Smith participated in shutting down the work site on the day prior to this accident due to heavy rain. For his part, Smith does not recall any such discussion nor any weather-related conversations with plaintiff (Hunt's Ex B [Smith's deposition], pp 19-22). As such, the court is left with differing accounts of events thereby raising questions of fact as to whether Hunt exercised actual control or supervision over plaintiff's work and had actual or constructive notice of the allegedly dangerous condition. The court also notes that these conflicting stories raise issues of credibility which are not properly resolved on a motion for summary judgment ( Whiteford v Smith, 168 AD2d 885, 886). Consequently, Hunt's motion for summary judgment dismissing the common law negligence and Labor Law § 200 cause of action must be denied.
II. Labor Law § 241 (6)
Labor Law § 241 (6) mandates owners and contractors provide reasonable and adequate protection and safety for workers by requiring them to comply with specific safety rules and regulations promulgated by the Commissioner of the Department of Labor, as opposed to general safety standards regulations ( Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 501-502, [1993]). The Commissioner's rules, known as the State Industrial Code, are contained in Title 12 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("NYCRR"). A plaintiff must establish that the violation of the specific safety regulation was a proximate cause of the accident ( Ares v State of New York, 80 NY2d 959).
Plaintiff relies upon Industrial Code § 23-1.7 (d) in support of his Labor Law § 241 (6) cause of action. Industrial Code § 23-1.7 (d) states as follows:
Although Plaintiff also cited Industrial Code § 23-9.2 in his Verified Complaint and Verified Bill of Particulars, he now relies solely on 12 NYCRR § 1.7 (d).
(d) Slipping hazards. Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing.
In the first instance, the court notes that 23-1.7 (d) has been deemed a specific provision ( O'Connor v Lincoln Metrocenter Partners L.P., 266 AD2d 60, 61-62). That having been said, however, the court finds that this regulation is not applicable to this case. Case law indicates that in order to be deemed a specified work area the surface must be an elevated working surface or, stated another way, an integral part of the worksite ( Francis v Aluminum Co. of America, 240 AD2d 985, 987 [the load of steel beams from which plaintiff fell did not constitute a specified work area]; Lessard v Niagara Mohawk Power Corp., 277 AD2d 941, 942 [the tracks of front-end loader from which plaintiff fell did not constitute an elevated working surface]; Blysma v County of Saratoga, 296 AD2d 637, 638 [loading dock stairway was not working surface within meaning of regulation]). Quite simply, this court finds that the backhoe's step on which plaintiff slipped does not constitute a passageway, floor, or elevated working surface within the meaning of Industrial Code § 23-1.7 (d). As such, defendants' motions for summary judgment dismissing plaintiff's Labor Law § 241 (6) cause of action will be granted.
Conclusion
For the reasons stated, the court finds as follows:
(1)Wegmans' motion for summary judgment dismissing plaintiff's complaint and Hunt's cross-claim is GRANTED;
(2)Hunt's cross-motion for summary judgment dismissing plaintiff's common-law negligence and Labor Law § 200 causes of action is DENIED; and
(3)Hunt's cross-motion for summary judgment dismissing plaintiff's Labor Law § 241 (6) cause of action is GRANTED.
The foregoing constitutes an order of the court.
It is so ordered.