Allison Gammons, Respondent,v.City of New York, et al., Appellants.BriefN.Y.November 17, 2014Supreme Court, Kings County Index Number 1901/09 To be argued by MICHAEL SHENDER 15 Minutes Requested COURT OF APPEALS STATE OF NEW YORK ALLISON GAMMONS, Plaintiff-Respondent, -against- CITY OF NEW YORK and NEW YORK CITY POLICE DEPARTMENT, Defendants-Appellants. APPELLANTS' REPLY BRIEF ZACHARY W. CARTER, Corporation Counsel of the City of New York, Attorney for Defendants- Appellants, 100 Church Street, New York, New York 10007. (718) 222-2371 or (212) 356-0827 RICHARD DEARING, KRISTIN M. HELMERS, MARGARET G. KING, MICHAEL SHENDER, of Counsel. April 9, 2014 TABLE OF CONTENTS TABLE OF AUTHORITIES ii PRELIMINARY STATEMENT 1 POINT I PLAINTIFF'S LAWSUIT IS AN IMPROPER ATTEMPT TO CIRCUMVENT PESHA'S EXCLUSIVE ENFORCEMENT SCHEME 2 POINT II PLAINTIFF'S REMAINING ARGUMENTS ARE WITHOUT MERIT 9 A. The General Principle That GML § 205-e Is Construed Expansively Cannot Override the Legislature's Specific Intention that PESHA's Enforcement Regime Be Exclusive 9 B. Cases Holding that OSHA Violations May Constitute Some Evidence of Negligence Are Not Relevant Here 11 CONCLUSION 16 i TABLE OF AUTHORITIES Cases: Albrecht v. Baltimore & O. R. Co., 808 F.2d 329, 332 (4th Cir. 1987) 12 Bauer v. Female Acad. of the Sacred Heart, 97 N.Y.2d 445, 453 (2002) 13 Beamer v. Thompson, 77 Va. Cir. 359, 362 (Patrick Co., 2009) 3 Capers v. Giuliani, 253 A.D.2d 630 (1st Dep't), lv. denied, 93 N.Y.2d 868 (1998) 8 Delio v. City of New York, 8 A.D.3d 325 (2d Dep't 2004) 7 Desmond v. City of New York, 88 N.Y.2d 455 (1996) 11 n.3, 15 Elliott v. S.D. Warren Co., 134 F.3d 1 (1st Cir. 1998) 12 n.4 Eaton v. N.Y. City Conciliation & Appeals Bd., 56 N.Y.2d 340 (1982) 4 Farella v. City of New York, 2007 U.S. Dist. LEXIS 63087 (S.D.N.Y. 2007), aff'd 323 Fed. Appx. 13 (2d Cir. 2009) 8, 9 Galapo v. City of New York, 95 N.Y.2d 568 (2000) 10, 15 Jablonski v. Jakaitis, 85 A.D.3d 969 (2d Dep't 2011) 10 Jones v. Spentonbush-Red Star Co., 155 F.3d 587 (2d Cir. 1998) 12, 13 Lubecki v. City of New York, 304 A.D.2d 224 (1st Dep't 2003) 14, 15 Mark G. v. Sabol, 93 N.Y.2d 710 (1999) 2, 3 McLean v. City of New York, 12 N.Y.3d 194 (2009) 3 ii Middlesex County Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 453 U.S. 1 (1981) 5, 6 Mulham v. City of New York, 110 A.D.3d 856 (2d Dep't 2013) 10 O'Connor v. City of New York, 280 A.D.2d 309 (1st Dep't 2001) 13, 14, 15 People v. Mitchell, 15 N.Y.3d 93 (2010) 2 People v. Pymm, 76 N.Y.2d 511 (1990) 8 Pokoik v. Dep't of Health Servs., 72 N.Y.2d 708 (1988) 4 Pratico v. Portland Terminal Co., 783 F.2d 255 (1st Cir. 1985) 12 n.4 Ries v. AMTRAK, 960 F.2d 1156 (3d Cir. 1992) 12, 13 Robertson v. Burlington N. R.R., 32 F.3d 408 (9th Cir. 1994) 12 Shaw v. Baldowski, 192 Misc.2d 635 (Sup. Ct., Albany Co. 2002) 8, 9 Walters v. Nicklin, 29 A.D.3d 782 (2d Dep't 2006) 13 Weiss v. City of New York, 247 A.D.2d 239 (1st Dep't 1998) ..... 7 State Statutes and Regulations: General Municipal Law § 205-e 1, 2 and passim Labor Law § 27-a ("PESHA") 2, 3 and passim Labor Law § 27-a(2) 2 Labor Law § 27-a (3) (a) (1) 15 Labor Law § 27-a(7) 4 Federal Statutes and Regulations: 29 U.S.C. §§ 651-678 ("OSHA") 3, 8 and passim iii COURT OF APPEALS STATE OF NEW YORK ALLISON GAMMONS, Plaintiff-Respondent, -against- CITY OF NEW YORK and NEW YORK CITY POLICE DEPARTMENT, Defendants-Appellants. APPELLANTS' REPLY BRIEF PRELIMINARY STATEMENT The City's opening brief demonstrated that plaintiff's proposed private tort action under GML § 205-e, predicated on an alleged violation of PESHA, would conflict with the comprehensive governmental inspection and enforcement program that the Legislature enacted under PESHA and expressly designated to be exclusive. Plaintiff's brief offers no meaningful response to this showing. POINT I PLAINTIFF'S LAWSUIT IS AN IMPROPER ATTEMPT TO CIRCUMVENT PESHA'S EXCLUSIVE ENFORCEMENT SCHEME. In its main brief, the City demonstrated that the Legislature's grant of "exclusive authority"l to the Commissioner of Labor to enforce safety standards under PESHA precludes the use of the alleged statutory violation identified by plaintiff as a predicate in a damages cause of action under GML § 205-e. Labor Law § 27-a(2) expressly provides that the Commissioner's authority is exclusive, "notwithstanding" any other provision of law. See People v. Mitchell, 15 N.Y.3d 93, 97 (2010) (noting that such language is "the verbal formulation frequently employed for legislative directives intended to preempt any other potentially conflicting statute, wherever found in the State's laws"). In response, plaintiff contends that her suit under PESHA does not conflict with the Commissioner's exclusive enforcement authority, arguing that a private lawsuit for damages predicated on a PESHA violation would not constitute "enforcement" of PESHA standards (Resp. Br. at p. 33). To the contrary, the pursuit of private damages actions based on violations of a statute is commonly recognized as a form of "enforcement" of the statute. See Mark G. v. Sabol, 93 N. Y. 2d 1 Labor Law § 27-a(2). 2 710, 720 (1999) (rejecting a private monetary damages action under the Social Services Law as an attempt to create ~another enforcement mechanism beyond the statute's already 'comprehensive' scheme") (emphasis added); Beamer v. Thompson, 77 Va. Cir. 359, 362 (Patrick Co., 2009) (describing private lawsuit as an improper attempt to bring ~a private enforcement proceeding under OSHA") . Allowing private damages suits predicated on an alleged violation of PESHA's general duty clause would plainly disrupt the detailed and comprehensive enforcement scheme that the Legislature enacted in PESHA. Cf. McLean v. City of New York, 12 N. Y. 3d 194, 200-201 (2009) (~This is not a case where the Legislature has simply prohibited or required certain conduct, and left the mechanism of enforcement to the courts"). The Legislature expressly vested the Labor Commissioner with exclusive authority to inspect workplaces for PESHA violations, determine whether such violations have occurred, and take appropriate remedial action, such as ordering public employers to abate hazardous conditions or imposing specified civil penalties for violations. The Legislature limited the judicial review of the Commissioner's administrative enforcement actions to proceedings under Article 78 of the CPLR (see App. Br. at pp. 22-27) . 3 Indeed, PESHA pemits plenary suits in state trial courts only in sharply defined situations namely, in a provision authorizing suits for an injunction where an inspector has identified a condition that creates an imminent danger of death or serious bodily harm. Labor Law § 27-a(7) (c) . In such circumstances, only the Commissioner is initially authorized to file a suit for an emergency injunction. Id. But if the Commissioner fails to file suit within 48 hours of being notified of the inspector's finding, an affected employee may seek an injunction. Id. This provision is the sole provision of PESHA that authorizes a private suit, as a narrow exception to the Commissioner's exclusive enforcement authority. The Legislature's enactment of this provision authorizing private lawsuits for injunctions under PESHA only in highly circumscribed instances demonstrates that no further exceptions to the Commissioner's exclusive enforcement authority were intended. See Pokoik v. Dep't of Health Servs., 72 N.Y.2d 708, 712 (1988); Eaton v. N.Y. City Conciliation & Appeals Bd., 56 N. Y. 2d 340, 345 (1982) ("Where as here, the statute describes the particular situations to which it is to apply an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded") (internal quotation marks omitted) . Plaintiff's theory would broadly undermine the Commissioner's exclusive enforcement 4 authority by enabling private suits under GML § 205-e based on perceived violations of PESHA in a wide range of situations. Plaintiff's theory would also empower civil juries across the State to determine whether PESHA standards were violated and award money damages for found violations. This would not only conflict with the Commissioner's exclusive power to enforce PESHA, but may also dampen the Commissioner's development and promulgation of new safety standards, lest those actions expose police and fire departments to additional damages liability. In an analogous circumstance, the U. S. Supreme Court held that Congress' enactment of a comprehensive enforcement scheme under particular statutes, including provisions authorizing private suits for injunctions in defined circumstances, precluded a private plaintiff from bringing an action under 42 U.S.C. § 1983 predicated on violations of those statutes, which "provide quite comprehensive enforcement mechanisms." Middlesex County Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 453 U.S. 1, 20 (1981) ("When the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of Notably, in Sea Clammers, sui ts under § there was no express 1983") . language designating the statutory enforcement mechanism to be exclusive, 5 as there is in PESHA. Thus, the reasoning of Sea Clammers applies only more strongly here. Plaintiff is incorrect in arguing that her lawsuit does "not seek[] to enforce PESHA any more than the victim of a motor vehicle accident suing for personal injuries seeks to enforce the Vehicle and Traffic Law, the victim of a crime seeks to enforce the Penal Law or the victim of a trip and fall accident seeks to enforce the New York City Charter or the New York City Administrative Code" (Resp. Br. at p. 33). In these other situations, plaintiffs sue under recognized common-law tort theories, such as negligence or intentional tort, and rely on alleged violation of a statute or rule, if at all, only to show that a common-law duty has been violated. Here, by contrast, plaintiff's suit is predicated solely on a violation of PESHA. Nor does the VTL or the Penal Law or the New York City Administrative Code prescribe a comprehensive and detailed administrative enforcement scheme that is explicitly declared to be exclusive. And the enactments cited by plaintiff have traditionally been subject to courts' plenary jurisdiction, whereas PESHA is not and has not been. Plaintiff also erroneously argues that rejecting her claim "would, in effect, convert [PESHA], which was enacted to create a safe work environment for the State's public employees[,] into a grant of immunity for employers responsible 6 for serious injuries or deaths of employees" (Resp. Br. at p. 28) . We do not argue that PESHA immunizes any conduct from a private tort suit, but only that PESHA itself cannot serve as the sole basis for such a suit. A private plaintiff may sue under GML § 205-e based on conduct that violates any statute or rule that may validly serve as a predicate, regardless of whether the conduct also violates PESHA. But a plaintiff may not base a section 205-e claim solely on a claimed violation of PESHA. Moreover, as we pointed out in our main brief (App. Br. at pp. 45-46), pUblic employers were subject to tort liability for failure to provide a safe workplace both before and after PESHA, including in suits brought by police officers. See ~, Delio v. City of New York, 8 A.D.3d 325 (2d Dep't 2004) (granting summary judgment to police officer injured when a fellow officer closed the door of their patrol car on his hand during a traffic stop) i Weiss v. City of New York, 247 A.D.2d 239 (1st Dep't 1998) (suit for hearing loss due to City's failure to provide ear plugs during crowd control at an event involving cannon blasts). And public employers will remain subj ect to such liability, in appropriate cases, regardless of whether plaintiff's suit proceeds here. Our point is only that such liability may not derive from PESHA itself, since the 7 Legislature vested the Commissioner with exclusive authority to enforce that statute. Plaintiff mistakenly relies on People v. Pymm, 76 N.Y.2d 511 (1990), where this Court held that OSHA does not preempt the application of New York's general criminal laws to an employer for injurious criminal activity that also constituted a violation of OSHA. ~ is inapposite for several reasons. First, that case addressed a claim of federal-state preemption, and rested in large part on the strong presumption that federal statutes are not intended to· preempt state health and safety laws, neither of which is at issue here. rd. at 521. Second, the question in ~ was whether OSHA preempted general criminal laws merely because the charged conduct "coincidentally" violated an OSHA safety standard as well. rd. at 524. As noted above, we do not argue that PESHA immunizes from liability any conduct that independently violates another law. We contend only that a violation of PESHA cannot itself serve as the legal predicate for a private damages action under GML § 205-e. Plaintiff's attempts to distinguish Capers v. Giuliani, 253 A.D.2d 630 (1st Dep't), Iv. denied, 93 N.Y.2d 868 (1999), Farella v. City of New York, 2007 U.S. Dist. LEXrS 63087 (S.D.N.Y. 2007), aff'd, 323 Fed. Appx. 13 (2d Cir. 2009), and Shaw v. Baldowski, 192 Misc.2d 635 (Sup. Ct., Albany Co. 2002), 8 ignore the relevant points of law the City drew from those cases in its main brief (App. Br. at pp. 34-39). Those three decisions, from different courts but unified in rationale, have all rejected private actions for alleged PESHA violations, even when brought under other enabling vehicles, as in Farella and Shaw. These courts all properly deferred to PESHA's comprehensive enforcement mechanism and its limited provisions for jUdicial review as the means the Legislature deemed best to administer its mandate. The same result should be reached here. POINT II PLAINTIFF'S REMAINING ARE WITHOUT MERIT. ARGUMENTS A. The General Principle That GML § 20S-e Is Construed Expansively Cannot Override the Legislature's Specific Intention that PESHA's Enforcement Regime Be Exclusive. Plaintiff relies on a traditionally expansive interpretation of GML § 205-e and maintains that "denying officers of [sic] the right to rely upon OSHA/PESHA would be [sic] serve to deprive them of the rights and remedies available under section 205-e" (Resp. Br. at p. 17) But reference to the general policies underlying GML § 205-e are not sufficient to override the specific language of PESHA. The question in this appeal is not whether GML § 205-e sweeps broadly it undoubtedly does. First, the parties' submissions on this appeal amply demonstrate that a broad 9 spectrum of legislative enactments, ranging from the New York City Charter and the Vehicle and Traffic Law to the City's Administrative and Building Codes, have been held to be valid GML § 205-e predicates. Second, GML § 205-e has, in fact, been broadly construed, freeing police officers from comparative faul t 2 and the need to establish causation and notice to the degree required of most tort litigants. See Jablonski v. Jakaitis, 85 A.D.3d 969 (2d Dep't 2011) (causation); Mulham v. City of New York, 110 A.D.3d 856 (2d Dep't 2013) (notice). The above points are not disputed on this appeal. The real issue here is whether the Legislature's intention that the Commissioner possess exclusive authority to enforce PESHA should be ignored. Plaintiff identifies no support for that conclusion. While plaintiff correctly points out that GML § 205-e has been broadly construed (Resp. Br. at p. 17), this Court has also cautioned that it "cannot reasonably be applied literally in accordance with its broad language," and ruled that although "section 205-e purports to authorize recovery for noncompliance with any governmental requirement," the statute should not be read to go that far. Galapo, 95 N.Y.2d at 574. This Court's recognition that section 205-e does not "give police officers a right to sue for breaches of any and all 2 See, infra, pp. 13-14. 10 governmental pronouncements") is particularly relevant here, because PESHA, the subj ect governmental pronouncement, created an administrative enforcement scheme, not a vehicle for private tort recovery against public employers. Policy considerations underlying the broad application of section 205-e thus may not abrogate PESHA's pre-existing comprehensive enforcement scheme, or supplant its limited provision for judicial review. B. Cases Holding that OSHA Violations May Constitute Some Evidence of Negligence Are Not Relevant Here. Plaintiff cites a number of cases holding that a plaintiff in a tort suit may introduce proof that a defendant violated OSHA as some evidence of negligence (Resp. Br. at p. 39) . Those cases do not support plaintiff here. Plaintiff does not seek to introduce proof of a PESHA violation as one piece of evidence going to negligence. Instead, plaintiff seeks to rely on an alleged violation of PESHA's general duty clause as the sole predicate legal duty to support a tort recovery. On balance, the case law under OSHA supports defendants far more than it supports plaintiff. The closest OSHA precedents on point are the numerous cases that rej ect plaintiffs' efforts to use violations of OSHA as the basis for a theory of negligence per se. ) Desmond, 88 N.Y.2d at 455. Thus, while courts have widely 11 recognized that OSHA regulations may be admitted as "some evidence of the applicable standard of care to be considered only in relation to all other evidence in the case," they have overwhelmingly held that "a violation of an OSHA regulation is not negligence per se." Robertson v. Burlington N. R.R., 32 F.3d 408, 410-411 (9th Cir. 1994); see also Jones v. Spentonbush-Red Star Co., 155 F.3d 587, 595 (2d Cir. 1998) (rej ecting the use of OSHA violations as negligence per se for fear of "affect [ing] the employer's liability"); Ries v. AMTRAK, 960 F.2d 1156, 1162 (3d Cir. 1992) ("it is clear to this court that Congress did not intend for a violation of an OSHA regulation to result in negligence per se and bar contributory negligence"); Albrecht v. Baltimore & O. R. Co., 808 F.2d 329, 332 (4th Cir. 1987) ("regulations promulgated under OSHA provide evidence of the standard of care exacted of employers, but they neither create an implied cause of action nor establish negligence per se") omitted) .4 (internal citation and quotation marks 4 Plaintiff's reliance on Pratico v. Portland Terminal Co., 783 F.2d 255 (1st Cir. 1985) (Resp. Br. at pp. 19-27), the only decision to deem an OSHA violation to be negligence per se, is undercut by a subsequent decision of the First Circuit. See Elliott v. S.D. Warren Co., 134 F.3d 1, 4-5 (1st Cir. 1998) (limiting Pratico to FELA actions and holding that proof of an OSHA violation "does not constitute negligence per se"); see also Ries, 960 F. 2d at 1161 (" [w] e find the analysis of Pratico to be unpersuasive"); Robertson, 32 F. 3d at 410 (" [w] e decline to follow the negligence per se rule of the First Circuit"). 12 Courts have rejected the notion that OSHA violations constitute negligence per se in part to preserve the defense of comparative fault. See Jones, 155 F.3d at 596 ("it was not Congress' aim to have [an OSHA violation] constitute negligence per se, shift any burden of proof or bar a finding of comparative negligence"); Ries, 960 F.2d at 1162 (3d Cir. 1992) ("Congress did not intend for a violation of an OSHA regulation to result in negligence per se and bar contributory negligence" ) . This is significant because "whether a particular rule violation results in a finding of negligence per se or is merely some evidence of negligence [is] relevant to determining when such violations result in strict liability versus comparative negligence." Bauer v. Female Acad. of the Sacred Heart, 97 N.Y.2d 445, 453 (2002). This case embodies these concerns, in that allowing PESHA to serve as a statutory predicate for tort recovery under GML § 205-e would improperly render municipalities strictly liable for a PESHA violation, irrespective of the plaintiff's comparative fault. See Walters v. Nicklin, 29 A.D.3d 782 (2d Dep't 2006) ("In accordance with the strict liability imposed under [GML] § 205 - e , the jury was not permitted to reach the issue of the plaintiff's possible negligence"); O'Connor v. City of New York, 280 A.D.2d 309 (1st Dep't 2001) ("trial court also properly refused to charge the jury on plaintiff's alleged 13 § 205-e remains a strict contention that comparative fault, liability statute"). Plaintiff's since [GML] "unlike the [Police] Patrol Guide, a violation of a relevant OSHA provision has always been considered evidence of negligence and may even be considered negligence per sen (Resp. Br. at p. 17), is mistaken in two key respects. First, as outlined above, most courts have held that OSHA violations do not constitute negligence per se. Second, plaintiff's suggestion that courts do not accept proof of violation of the Patrol Guide or other police guidelines as some evidence of negligence is incorrect. The Appellate Division, First Department, for example, has routinely admitted such rules as standards of care or some evidence of A.D.2d 224, negligence. 234 (1st See Lubecki v. City of New York, 304 Dep't 2003) ( "policy directives that disallow the use of the Patrol Guide to prove municipal negligence in cases involving the application of [GML] § 205-e do not operate when the issue is the standard of care to be employed by police officers"). Indeed, such standards may even be admitted in a GML § 205-e action not as predicates, but as some evidence of negligence. See O·Connor, 280 A.D.2d at 309 (internal NYPD "Chief of Department Memo" stating that "officers should use portable flashing lights on unmarked cars was properly admitted into evidence, as qualified by a specific jury 14 instruction that the memorandum was not a rule, regulation or requirement within the meaning of [GML] § 205-e, and thus was not a statutory predicate for that cause of action, and could be considered only as some evidence of recklessness along with all other factors") . Given the above, plaintiff's argument that "reliance upon a violation of PESHA for purposes of establishing GML § 205-e liability is no less permissible than a plaintiff's reliance upon a violation of OSHA (or PESHA) to establish evidence of negligence" (Resp. Br. at p. 39) is plainly wrong. When considered against the backdrop of Galapo and Desmond, both Lubecki and 0' Connor demonstrate that admitting proof of OSHA and PESHA violations for evidentiary purposes does not mean that alleged violations of those statutes are also valid GML § 205-e predicates. Nor does plaintiff rely on PESHA here to establish a specific standard of care with respect to the length of the NYPD flatbed truck or on the issue of whether the flatbed should have been equipped with a back railing, since section 27-a(3) offers no guidance in that regard. Rather, asserting that "there can be no doubt that [these] condition [s] constituted a recognized hazard under Labor Law § 27-a(3) (a) (1)" (Resp. Br. at p. 50), plaintiff relies solely on PESHA's general duty clause to impose strict liability. Because such a result would be directly 15 By: contrary to PESHA's comprehensive enforcement scheme and its limited provision for judicial review, this Court should reject the use of Labor Law § 27-a (3) as the sole predicate for tort liability. CONCLUSION THE ORDER APPEALED FROM SHOULD BE REVERSED, WITH COSTS, AND THE COMPLAINT AGAINST THE CITY SHOULD BE DISMISSED. Respectfully submitted, ZACHARY W. CARTER, Corporation Counsel of the City of New York, Attorney for Defendants- Appellants. ili~ MICHAEL SHENDER RICHARD DEARING, KRISTIN M. HELMERS, MARGARET G. KING, MICHAEL SHENDER, of Counsel. April 9, 2014 16