Kenneth J. Hecker, Appellant,v.State of New York, Respondent.BriefN.Y.February 7, 2013 To Be Argued By: JEFFREY A. VAISEY Time Requested: 15 Minutes State of New York Court of Claims No. 116642 Appellate Division, Fourth Department Docket No. CA 11-01232 ____________________________________________________ Court of Appeals STATE OF NEW YORK _____________________◄►◄►◄►______________________ KENNETH J. HECKER, Claimant-Appellant, __ against __ THE STATE OF NEW YORK, Defendant-Respondent. __________________________________________________________________ BRIEF FOR CLAIMANT-APPELLANT __________________________________________________________________ TONES VAISEY, PLLC Jeffrey A. Vaisey, Esq. Attorneys for Claimant-Appellant 155 Clinton Square Rochester, New York 14604 Telephone: (585) 287-6525 July 25, 2012 ____________________________________________________ (i) TABLE OF CONTENTS Page TABLE OF AUTHORITIES ........................................ (iii) PRELIMINARY STATEMENT ........................................... 1 QUESTIONS PRESENTED ............................................. 5 STATEMENT OF FACTS .............................................. 6 POINT I THE APPELLATE DIVISION ERRED BY RULING THAT 12 NYCRR §23-1.7(d) DID NOT APPLY TO APPELLANT’S ACCIDENT AS A MATTER OF LAW ........................................................ 11 A. §241(6) Framework ................................ 11 B. The Salient Industrial Code Regulation ........... 13 C. Defendant Violated the Salient Industrial Code Regulation .................................. 15 D. Defendant Offered No Evidence of Compliance ...... 17 POINT II “WALKWAY” OR “PASSAGEWAY” FOR THE PURPOSES OF 23-1.7(d) ...................................... 17 A. First Consideration: Does the Passageway Provide a means of access to the job site? ....... 18 B. Second Consideration: Is the Passageway Defined and not Open, Common or Remote? .......... 23 POINT III RECONCILING THE THREE CASES CITED BY THE MAJORITY ...................................... 27 A. The Majority’s Reasoning, Generally .............. 27 B. Bale Supports the Dissent’s Legal Analysis But is Factually Distinguishable ................. 28 (ii) C. Majority’s Reliance on Inconsequential Dicta in Hertel is Improper and Contrary to Established Precedent Including Rizzuto .......... 30 CONCLUSION ..................................................... 37 (iii) TABLE OF AUTHORITIES Page Bale v Pyron Corp., 256 AD2d 1128 (4th Dept 1998) .............23, 24, 28, 29 Bax v Allstate Health Care, Inc., 26 A.D.3d 861 (4th Dept 2006) .........................33 Belcastro v Hewlett-Woodmere Union Free School Dist. No. 14, 286 Ad2d 744 (2d Dept 2011) .............14 Beltrone v City of New York, 229 AD2d 306 (2d Dept 2002) ............................19, 20, 21, 36 Booth v Seven World Trade Co., L.P., 918 NYS2d 428 (1st Dept 2011) .........................15 Brown v Brause Plaza, LLC, 19 AD3d 626 (2d Dept. 2005) .......................................11 Bruder v 979 Corp., 307 AD2d 980 (2d Dept 2003) ....................................passim Cafarella v Harrison Radiator Div. of Gen. Motors, 237 AD2d 936 (4th Dept 1997) ..................32 Comes v New York State Elec. & Gas, 82 NY2d 876 (1993) ....................................12 Conklin v Triborough Bridge & Tunnel Authority, 49 AD3d 320 (1st Dept 2008) ...................25, 29, 30 Fassett v Wegmans Food Markets, Inc., 66 AD3d 1274 (3d Dept 2009) .......................passim Gaisor v Gregory Madison Ave, LLC, 13 A.D.3d 58 [1st Dept 2004] ........................1, 2 Hammond v International Paper Co., 161 AD2d 914 (3d Dept 1990) ........................................15 Hecker v State of New York, 92 AD2d 1261 (4th Dept 2012) ...................................passim Hertel v Hueber-Breuer Constr. Co., Inc., 48 AD3d 1259 (4th Dept 2008) ......................passim (iv) Linkowski v City of New York, 33 AD3d 971 (2d Dept 2006) ....................20, 21, 22 Love v New York State Thruway Auth., 17 AD3d 1000 (4th Dept 2005) ..........................12 Maza v University Ave. Dev. Corp., 13 A.D.3d 65, 65-66 (1st Dep. 2004) ...................33 Morra v White, 276 AD2d 536 (2d Dept 2000)............25, 26 Parker v Ariel Assoc. Corp., 19 AD3d 670 (2005).......30, 31 Rizzuto v L.A. Wenger Contracting Co., Inc., 91 NY2d 343 (1998) ................................passim Ross v Curtis-Palmer Hydro-Elec., 81 NY2d 494, 502-503, 505 [1993] ..................12, 23 Sergio v Benjolo N.V., 168 AD2d 235 (1st Dept 1990) .......................................20 Sullivan v RGS Energy Group, Inc., 78 AD3d 1503 (4th Dept 2010) ..........................28 Talbot v Jetview Props., LLC, 51 AD3d 1396(4th Dept 2008) .......................25, 26 Ventura v Lancet Arch., Inc., 5 AD3d 1053 (4th Dept 2004) .......................................15 Whalen v City of New York 270 AD2d 340 (2d Dept 2000) ................3, 20, 21, 22 STATUTES 11 NYCRR §23-1.4[b][13]...................................11 12 NYCRR §23-1.7(d)...................................passim 12 NYCRR §23.1.7(e)(1)................................passim N.Y. Labor Law §241(6)................................passim 1 PRELIMINARY STATEMENT This is a personal injury action alleging violations of New York Labor Law §241(6) and Industrial Code §23-1.7(d). Claimant-Appellant, Kenneth J. Hecker (“Appellant”) appeals as a matter of right from the Decision and Order of the Appellate Division, Fourth Department, entered February 10, 2012, which affirmed the Order of the Court of Claims of the State of New York (Minarik, J.) entered on or about September 10, 2010, which granted the motion for summary judgment of Defendant-Respondent, the State of New York (“Respondent”) and thereby dismissing the complaint. Dismissal by the Court of Claims was predicated upon its conclusion that, as a matter of law, snow removal constituted an integral part of Appellant’s work. The focus of the parties and the Appellate Division has, therefore, been almost entirely on the question of whether snow removal constituted an integral part of Claimant-Appellant’s work. On appeal before the Fourth Department, the three-Justice majority concluded that “the [Court of Claims] erred in relying upon Gaisor v Gregory Madison Ave., LLC (13 AD3d 58) in determining that snow removal was an integral part of claimant’s work and thus that he could not allege a violation of Labor Law §241(6) based on that regulation in connection with injuries he sustained while removing the snow.” The two-Justice dissent 2 agreed with the majority that the Court of Claims erred in dismissing the claim by relying on Gaisor (A 28). Thus, as to what was believed by Appellant, Respondent and the Court of Claims to be the determinative issue in this claim up to that point, all five Justices were in complete agreement. The majority, nevertheless, affirmed the Court of Claims’ decision on entirely different grounds, concluding that the record established that, for the purposes of 12 NYCRR 23-1.7(d), Appellant “was not using the area in which he fell as a floor, passageway or walkway at the time of his fall.” (Hecker v State of New York, 92 AD3d 1261, 1262 [4th Dept 2012]). The dissenting Justices respectfully dissented, concluding that 12 NYCRR §23-1.7(d) does apply, and voted to reinstate Appellant’s claim. Specifically, the dissent explained: [12 NYCRR 23-1.7(d)] requires that an employer “shall not suffer or permit any employee to use a floor, passageway, [or] walkway… which is in a slippery condition. Ice, snow, [and] water… which may cause slippery footing shall be removed, sanded or covered to provide safe footing.” Here, the record establishes that claimant’s employer was required to replace defective components in a lift mechanism 30 feet below the ground. Employees would gain access to the underground work site by going through a “pit door” located on the sidewalk of the bridge. At the time of the accident, claimant was clearing snow off of the pit door and the sidewalk when he slipped on the pit door and fell onto his back. Inasmuch as the pit door was located on the sidewalk and was the only way to access the underground 3 work site, we conclude that, at the time of his accident, claimant was using a passageway or walkway within the meaning of the regulation (see Fassett v Wegmans Food Mkts., Inc., 66 AD3d 1274, 1277-1278; Whalen v City of New York, 270 AD2d 340, 341- 342). (Id. at 1263). The majority and the dissent have conflicting interpretations of 12 NYCRR 23-1.7(d) and such interpretation is dispositive with respect to whether Appellant demonstrated prima facie entitled to relief. As to the applicability here of Labor Law §241(6) predicated upon a violation of 12 NYCRR 23-1.7(d), it is submitted that the three-Justice majority writing the decision for the Fourth Department was incorrect in its order affirming the trial court’s decision, since the ice- and snow-covered pit doors on which Appellant ultimately fell provided the sole means of access to the worksite, were defined (measuring only five feet by five feet), were closed off to the public, and were in close physical proximity to the worksite (A 114). In other words, the pit doors on which Appellant slipped were not open, common or remote (see Bruder v 979 Corp., 307 AD2d 980, 981 [2d Dept 2003]) and thus squarely within the meaning of §23-1.7(d). Respondent never even sought dismissal of Appellant’s §241(6) cause of action for failure to demonstrate a violation of §23-1.7(d) (i.e., Respondent just focused on the integral 4 part of the work defense), and, while the Appellate Division may have had the power to search the record, it clearly erred in holding, contrary to the well-established body of relevant case law, that §23-1.7(d) does not apply. Based upon the authorities cited herein, as applied to the facts, it is respectfully submitted that the Appellate Division's order affirming the trial court and dismissing Appellant’s claims was improper. 5 QUESTIONS PRESENTED 1. Did the Appellate Division err in holding that defendant established its entitlement to judgment as a matter of law dismissing claimant’s Labor Law §241(6) cause of action predicated on defendant's violation of 12 NYCRR 23-1.7(d)? It is respectfully submitted that the answer is in the affirmative. 2. Did the Appellate Division err in interpreting the term “passageway” for the purposes of claimant’s Labor Law §241(6) cause of action predicated on defendant’s violation of Industrial Code §23-1.7(d) so as to exclude the ice- and snow- covered pit doors on which claimant slipped, which provided the sole means of access to the subterranean lift bridge mechanism, even when the pit doors satisfied all requirements of a “passageway” firmly established at common law? It is respectfully submitted that the answer is in the affirmative. 6 STATEMENT OF FACTS Appellant, a union millwright, was employed by Hohl Industrial Services, Inc. (“Hohl”) to complete a job that included major machine installation and repair. (A 89, 122). On the morning of December 19, 2007, Appellant was injured while working at the Washington Street Bridge (the “Bridge”) in Adams Basin, Ogden, New York (the “Property”). Hohl’s work was part of a multi-million dollar rehabilitation and repair project (the “Project”), which included the rehabilitation of two historic lift bridges (A 99). Respondent owned and/or controlled the Property at all relevant times. There was a contract between Hohl and Respondent for this work (A 97-98). As part of the Project, Hohl was charged with rehabilitating and repairing the Bridge including substantial replacement of its lifting mechanism. This work included concrete demolition, iron work, bearing replacement (each weighing about 100 lbs.) and sheave replacement (there were two different types of sheaves; each weighed from 100 lbs. to 3,000 lbs.) (A 115-17, 130-31). It was unclear when Hohl first and last worked under the salient contract. Notwithstanding, Hohl performed concrete and iron work continuously from late 2005 to early 2007. Hohl’s 7 work “ran long due to the fact that they found more work” (A 102). The revitalization of the Bridge was thought to be complete by all parties on June 30, 2007 (A 167). At some point in December of 2007, however, it was discovered that all four “B- sheaves” on the Bridge were defective (A 117). Thus, an impromptu repair was commenced (A 117-18). On December 19, 2007, Appellant, as an employee of Hohl, was part of the effort to replace the defective “B-sheaves” that were thought to be properly installed during the previous summertime. “B-sheave” replacement was the sole reason Hohl (and Appellant) was working on the Bridge on December 19, 2007 (A 117-18, 136). Appellant was to assist in raising the Bridge, securing it in the raised position with cribbing piles, and removing the defective B-sheaves (A 121). Appellant’s supervisor, Max Maerten (“Maerten”), described the process of gaining access to the underground lift mechanism on the Bridge in order to replace the B-sheaves: Q. Describe for me the process that would have to be undertaken to remove the B sheaves to send them out for service if you will. A. You have to disconnect the operating ropes which is a connection in the pits. 8 Q. How did you access the pit? A. You would have to go through the pit door in the sidewalk, down a ships ladder, get into the bottom. These pits are probably in the neighborhood of thirty feet deep. Loosen the cables, take them off the sheave, pull a couple retainers and we hung come alongs, chain falls to hold it while we pulled the pins and then remove the sheave. Q. In order to remove the sheave, do you have to lift the bridge in some respect? A. Yes. (A 120-21). For Appellant to access the underground lift mechanism and perform his work, it was necessary for him to walk along the Bridge (A 114), pass over, open and go through the pit doors, and then climb down the ships ladder (A 120-22). Robin Earle testified that they were shoveling off the walkway “so that we could lift up the doors to go beneath the bridge to lift the bridge and shore it up so that we could rest the Bridge on the shoring – the pilling – so that we could do our work, perform our job.” (A 182). The walkway to the pit doors and then down the ships ladder was the sole means of access to the underground lift mechanism of the Bridge, which was located 30 feet below the street (A 120-21). 9 Maerten described the pit doors (also referred to by Maerten as “Bilco doors”) as being similar to barn doors that are horizontal (A 145). Maerten said that the dimensions of both pit doors were about a five foot square (A 149). The walkway leading to the pit doors ran between the road and the canal and was the only pathway by which Appellant could access the lift bridge mechanism (A 114). At the time of Appellant’s fall, he was standing on the pit doors and clearing them of snow so he could open them and descend the ships ladder (A 58, 137-39, 147-48). The Bridge was closed for traffic while Hohl performed its work on the Bridge (A 140, 154). At the time of the accident, Maerten and Earle were detouring traffic and otherwise closing down the Bridge with signs and a blockade (A 59, 154). During Maerten’s examination before trial, he was asked: Q. Do you recall in any of these toolbox talks, did you discuss safety regarding accessing the bridge through the pit, the door? A. It was a confined space area. It was a non-permitted area. We used an air monitor. We had safety harness, tie off. It was our general confined space. (A 135). Snow had fallen on the Bridge throughout the evening before and the morning of December 19, 2007, the date of Appellant’s 10 injury (A 53). In fact, approximately 16 to 18 inches of snow had accumulated on the Bridge during that time (A 53). Maerten asked Appellant to clear away the snow to access the lift mechanism (A 61, 137-39). Maerten asked Appellant to shovel only to provide access to the pit door and the underground lift mechanism of the Bridge and not for safety or other reasons (A 138, 170-71). All that Appellant had to remove the substantial amount of snow was a plastic shovel that Maerten happened to have in his truck (A 65). In Maerten’s words, Appellant “was shoveling us access to, you know, around [to the pit doors]” (A 138-39). He explained that they needed access to the gang boxes and the work site (A 138). Maerten continued, “So, whatever we wanted to do, we would have to access to do our work” (A 138). Appellant slipped on the ice- and snow-covered “diamond plate decking” covering the surface of the pit doors. His heels came out from under him, and he fell hard onto his back (A 58- 59, 81-83). Appellant’s co-worker, Robin Earle, saw Appellant fall (A 189). Appellant sustained a serious injury to his low back as a result of the fall. 11 POINT I THE APPELLATE DIVISION ERRED BY RULING THAT 12 NYCRR §23-1.7(d) DID NOT APPLY TO APPELLANT’S ACCIDENT AS A MATTER OF LAW (A) §241(6) Framework §241(6) “imposes a non-delegable duty of reasonable care upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed” (Rizzuto v L.A. Wenger Contracting Co., Inc., 91 NY2d 343, 348 [1998] [citations omitted]). The Legislature intended to place the “‘ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor’” (Rizzuto, 91 NY2d at 348, citing 1969 N.Y. Legis. Ann. at 407-408 [emphasis in original]). “The areas that must be kept in a safe condition include not only the actual construction sites but the passageways the workers must travel through to get to and from those areas.” (Brown v Brause Plaza, LLC, 19 AD3d 626, 628 [2d Dept 2005]; see also Bruder v 979 Corp., 307 AD2d 980 [2d Dept 2003]). 12 The scope of work protected under §241(6) is defined in an applicable regulation (11 NYCRR §23-1.4[b][13]) and in many judicial decisions. Construction work covered by §241(6) includes “repair” of a building or structure (Love v New York State Thruway Auth., 17 AD3d 1000, 1002-03 [4th Dept 2005] [three-month-long sandblasting and painting project on which claimant was employed at the time of her injury is “construction” protected under §241(6)]). The administrative rules referred to in the final sentence of §241(6) are, for the most part, set forth in 12 NYCRR Part 23, commonly referred to as the “Industrial Code.” In Ross, this Court held that a claim under §241(6) must be premised upon the violation of an Industrial Code provision “mandating compliance with concrete specifications,” rather than a provision that simply reiterates an owner's and contractor's common-law obligation to provide a safe work place. (Ross v Curtis-Palmer Hydro-Elec., 81 NY2d 494, 502-503, 505 [1993]; see also Comes v New York State Elec. & Gas, 82 NY2d 876, 878 [1993] [cause of action under Labor Law §241(6) does not lie where plaintiffs allege violations of general safety standards of the Industrial Code, rather than concrete specifications]). To establish a prima facie case under §241(6), a claimant must prove that: (1) the defendant violated an Industrial Code regulation; (2) such regulation is sufficiently specific; and 13 (3) the violation proximately caused plaintiff’s injury (Ross, 81 NY2d at 501-05). (B) The Salient Industrial Code Regulation The Industrial Code regulation at issue in the present case, §23-1.7(d), is sufficiently specific to support a §241(6) claim (see Rizzuto, 91 N.Y.2d at 351). 12 NYCRR §23-1.7(d) provides: 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. An owner is liable for injuries proximately caused by a violation of an Industrial Code regulation whether the owner caused, contributed to, or was even aware of the violation (Ross, 81 NY2d at 502 [emphasis added]). Unlike a traditional negligence case, Appellant is not required to prove that Respondent had actual or constructive notice of the dangerous condition (Rizzuto, 91 NY2d at 350). As this Court explained in Rizzuto: [O]nce it has been alleged that a concrete specification of the Code has been violated, it is for the jury to determine whether the negligence of some party to, or participant in, the construction project caused 14 plaintiff's injury. If proven, the ... owner ... is vicariously liable without regard to his or her fault ... An owner or general contractor may, of course, raise any valid defense to the imposition of vicarious liability under section 241(6), including contributory and comparative negligence ... (Id. at 351-52 [emphasis added]). Unless a court can determine as a matter of law that a particular regulation is inapplicable, “it is for [the trier of fact] to determine whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances” (Belcastro v Hewlett-Woodmere Union Free School Dist. No. 14, 286 AD2d 744, 746 [2d Dept 2001]; see also Zimmer v Chemung Co. Performing Arts, 65 NY2d 513 [1985]). For example, in Rizzuto, this Court reversed a grant of summary judgment to the defendant and held: In our view, the jury could, thus, have rationally concluded that someone within the chain of the construction project was negligent in not exercising reasonable care, or acting within a reasonable time, to prevent or remediate the hazard, and that plaintiff's slipping, falling and subsequent injury proximately resulted from such negligence. (Rizzuto, 91 NY2d at 351-52 [emphasis added]). 15 (C) Defendant Violated the Salient Industrial Code Regulation Appellant was a construction worker working on the major rehabilitation of the Bridge (owned by Respondent) at the time Appellant was injured. The snow, ice and diamond plate decking were together a dangerous condition to which Appellant was forced to expose himself to enter into the pit, descend the ships ladder and replace the non-confirming sheaves of the lift mechanism 30 feet underground, which work area was undisputedly a “confined space” and “non-permitted” (A 135). Respondent violated §23-1.7(d) when neither Respondent nor anyone in the “chain of the construction project” removed the snow and ice, or otherwise provided for its safe removal, before allowing Appellant onto the Bridge to perform his work (Booth v Seven World Trade Co., L.P., 918 NYS2d 428, 430 [1st Dept 2011] [“The evidence that plaintiff slipped on snow and ice raises a triable issue as to whether ‘someone within the chain of the construction project was negligent in not exercising reasonable care, or acting within a reasonable time, to prevent or remediate the hazard’”]; Ventura v Lancet Arch., Inc., 5 AD3d 1053, 1054 [4th Dept 2004] [the failure to remove or otherwise treat the wet mortar to provide safe footing in compliance with §23-1.7(d) presents an issue of fact for trial]; Hammond v International Paper Co., 161 AD2d 914, 915 [3d Dept 1990]) 16 As was addressed in great detail in the parties’ briefs submitted to the Appellate Division in this matter, an innocent worker’s conservative efforts to avoid a dangerous condition do not immediately and completely eliminate a landowner’s duty to keep its property safe for the workers it has invited thereon. Were this to be the law, much negligence by a landowner would be excused by an innocent worker’s efforts to simply “get to work.” This argument was persuasive to all five Justices (Hecker, 92 AD3d at 1262-63). Appellant was squarely within the intended class of persons protected by §241(6) and §23-1.7(d). The record establishes that Respondent, as owner of the premises, violated §23-1.7(d) by allowing and permitting the diamond-plate decking in question to become hazardous and slippery with ice and snow (A 136). The trier of fact could have rationally concluded that Respondent, or someone within the chain of the construction project, violated §23-1.7(d) by allowing and permitting the diamond-plate decking in question to become hazardous and slippery with ice and snow and that this slippery hazard proximately caused Appellant’s injuries. Moreover, §23-1.7(d) is both concrete and applicable to the facts of this case (Rizzuto, 91 NY2d at 351). Accordingly, a viable cause of action predicated on §241(6) exists and dismissal was improper. 17 (D) Defendant Offered No Evidence of Compliance Respondent proffered no evidence disputing Appellant’s assertion that the diamond plate surface covered in ice and snow constituted a dangerous condition with the meaning of §23- 1.7(d). Similarly, Respondent proffered no evidence disputing Appellant’s assertion that the metal walkway covered in snow and ice proximately caused Appellant’s injuries. Respondent failed to do so because it is irrefutable from the facts that the metal walkway covered with snow and ice was, in fact, a slippery condition. Neither Respondent, nor anyone else in the chain of construction, made any effort to remedy it. POINT II “WALKWAY” OR “PASSAGEWAY” FOR THE PURPOSES OF §23-1.7(d) There are no explicitly established definitions of the words “floor”, “walkway” or “passageway” contained in 23-1.7(d). Nevertheless, almost all courts faced with the task of defining or applying these terms focus on one or both of the following characteristics: (A) whether the passageway provides a means of access to the worksite; and (B) whether the passageway is defined and not open, common or remote (discussed in sub-points [A] and [B], respectively). 18 (A) First Consideration: Does the Passageway provide a means of access to the job site? Does the area in question provide a means of access to the worksite? Better still, does it provide the only means of access to the worksite? The answer to these questions may well control whether an area leading to the worksite qualifies as a “passageway” or “walkway” for the purposes of §23-1.7(d). Fassett v. Wegmans Food Markets, Inc. is perhaps the most helpful decision in evaluating the issue presently before this Court (66 A.D.3d 1274 [4th Dept 2009]). Fassett is a recent unanimous Fourth Department decision and was explicitly cited by the dissenting justices (Hecker, 92 AD3d at 1263). In Fassett, the plaintiff, a heavy equipment operator, was exiting the cab of his backhoe and slipped on the battery cover he used as a step (66 AD3d at 1275). The Fourth Department determined that the battery cover constituted a “passageway” for simple reason that the plaintiff used it to access his equipment (Id. at 1278). The Fourth Department explained: Here, plaintiff slipped on mud that had accumulated on the battery cover of the backhoe and fell approximately four feet to the ground. The battery cover served as a step and was the only means of access to the cab. While the cover previously had foot treads on it, they had worn away. Thus, the uncontroverted evidence established that the battery cover constituted a passageway that plaintiff was required to use in order to access his equipment. Notably, responsibility under Labor Law § 241 (6) 19 extends not only to the area where the work was actually being conducted, but to the entire construction site, including passageways and platforms, in order to insure the safety of workers going to and from the points of actual work. (Id.). Even though the Fourth Department in Fassett did not require that a passageway be the sole means of access, it emphasized that fact (see Id.). Similar to the Fourth Department’s decision in Fassett, the Second department concluded that the deck of a crane was a “passageway” for the purposes of a §241(6) claim predicated on a violation of §23-1.7(d) (Beltrone v City of New York, 299 AD2d 306, 308 [2d Dept 2002]). In Beltrone, the plaintiff was a crane operator that used the crane deck to reach the crane. (Id. at 308) The plaintiff slipped on oil and rainwater that was permitted to accumulate on the crane deck (Id.). The Second Department’s analysis in affirming the lower court’s order to deny defendants’ motion for summary judgment was simple and sound: The defendants failed to make a prima facie showing that the deck was not the type of surface contemplated under section 23-1.7 (d). The uncontroverted evidence on the motion established that the deck was a platform used by the injured plaintiff to reach his work area. (Id.). 20 The Second Department did not overanalyze the question. The critical question was whether the area where the plaintiff was injured was used to access the worksite (see Id.). Both Fassett and Beltrone relied on Whalen v City of New York (270 AD2d 340 [2000]) (another case cited by the dissent in the present case), in which the plaintiff, an iron worker, was injured while descending an icy staircase from a construction site on a bridge (Id. at 341-42). The Second Department concluded that the testimony at trial established that the staircase where the accident occurred was a passageway to the work site (Id. at 342). No further analysis was required to reach this conclusion. The Second Department in Whalen also took the opportunity to reaffirm the proposition that responsibility under Labor Law §241(6) “extends not only to the point where the work was actually being conducted, but to the entire site, including passageways utilized in the provision and storage of tools, in order to insure the safety of laborers going to and from the points of actual work” (Id. at 342; see also Linkowski v City of New York, 33 AD3d 971 [2d Dept 2006]; Sergio v Benjolo N.V., 168 AD2d 235 [1st Dept 1990]). The Second Department relied on Whalen in a subsequent case, Linkowski v City of New York (33 AD3d at 974). In Linkowski, the court relied on the deposition testimony of the 21 plaintiff in establishing that the stairway landing on which plaintiff slipped on accumulated rainwater was a passageway to and from the work site (Id. at 974). For Appellant to access the underground lift mechanism and perform his work, it was necessary for Appellant to walk along the Bridge, pass over and through the pit doors (horizontal metal doors, similar to “barn” doors), climb approximately 30 feet down the ships ladder, then shore the Bridge up and replace the defective sheaves in a confined space, non-permitted area (A 114-19, 135, 145, 182). Replacing the defective sheaves was Hohl’s “job” (A 182). Applying the law in Fassett, Beltrone, Whalen, and Linkowski, Appellant’s sole and necessary means of access to the worksite squarely qualifies as a “passageway” for the purposes of a §241(6) claim predicated on a violation of §23-1.7(d). Just like the plaintiff in Fassett who could enter the cab of the backhoe only by stepping on the worn, mud-covered battery cover, Appellant was forced to pass over and through walkway and pit doors covered by 16 to 18 inches of snow in order to access the worksite. Just like the crane operator in Beltrone who accessed the crane by way of a crane deck on which oil and water was permitted to accumulate, Appellant accessed the subterranean 22 lift bridge mechanism by way of the walkway and pit doors covered in ice and snow from the night before. Just like the iron worker in Whalen who slipped on an icy staircase on his way to the construction site, Appellant slipped on the icy and snowy pit doors. Just like the plaintiff in Linkowski who slipped on accumulated rainwater on a staircase leading to the worksite, Appellant slipped on the icy and snowy pit doors. Moreover, the battery cover constituting a “passageway” in Fassett had treads on top of it because it was intended to be walked on. In the present case, Appellant slipped on “diamond plate” decking (A 81-83), which was similarly designed to provide additional traction to an already slippery walking surface. In both Fassett and the present case, the presence of additional grip clearly establishes that the surface was to be walked and thereby further supports the conclusion that such surface is a “walkway” or “passageway” for the purposes of §23- 1.7(d). How the Fourth Department could render a unanimous decision in Fassett and then issue the decision in the present case is confusing, at best. The analysis in Fassett is sound and consistent with the decisions cited therein and herein, namely that if an area provides access to the worksite, especially if it provides the sole means of access, then it is a passageway 23 for the purposes of a Labor Law §241(6) claim predicated on a violation of §23-1.7(d). Moreover, the walkway, pit doors and rest of the path that Appellant was required to take to access the subterranean worksite requires a much less liberal reading of the word “passageway” than does the battery cover of a backhoe in Fassett. (B) Second Consideration: Is the Passageway Defined and not Open, Common or Remote? The second major consideration when defining or applying the terms “walkway” or “passageway” of §23-1.7(d) is whether the area in question is a “defined walkway, passageway or path,” (Bale v Pyron Corp. 256 AD2d 1128, 1128 [4th Dept 1998]), or, stated inversely, whether the area is an “open and common area which was remote from the work site.” (Bruder, 307 AD2d at 981). Since §241(6) makes a landowner vicariously liable for injuries proximately caused by a violation of an Industrial Code regulation whether the owner caused, contributed to, or was even aware of the violation (Ross, 81 NY2d at 502) without regard to actual or constructive notice of the dangerous condition (i.e., merely negligence of “someone within the chain of construction”), it makes sense that the physical areas to which landowner’s duty applies be reasonably limited with respect to proximity to the worksite and degree of foreseeability that the area in question will actually be used by the workers in 24 connection with the construction work (Rizzuto, 91 NY2d at 350- 52). Even applying such reasonable limitations on proximity and foreseeability of use, the walkway and pit doors in the present case undoubtedly qualify as a passageway for the purposes of §23-1.7(d). Bale v Pyron Corp., one of the cases relied on by the majority in rendering the decision presently on appeal before this Court (Hecker, 92 AD3d at 1262), provides an example of an area that is insufficiently defined to constitute a passageway for the purposes of a §241(6) claim predicated on §23-1.7(d) (Bale, 256 AD2d at 1128). In Bale, the construction site and job trailer were separated and, when traveling between them, the plaintiff chose a path close to the building to avoid the wind (Id.). The plaintiff slipped on snow-covered ice that had accumulated under an awning that was protecting a nearby door, and the Appellate Division, Fourth Department, determined that §23-1.7(d) did not apply because the Plaintiff was walking in “an open area and not on a defined walkway, passageway or path” (Id.). The crucial fact in Bale was that the plaintiff chose the path (Id.). The plaintiff had other routes that he could have taken between the construction site and the job trailer, and, therefore, the Fourth Department concluded there was no defined path (see Id.). 25 Conklin v Triborough Bridge & Tunnel Authority provides a good example of what is a defined passageway (49 AD3d 320 [1st Dept 2008]). In Conklin, the Appellate Division, First Department, determined that a muddy “chicken ladder,” consisting of two wooden planks with two-by-fours nailed across intermittently was a passageway for the purposes of §23-1.7(d) (Id. at 320-21). The workers in Conklin placed the chicken ladder on sloped ground for use as a ramp, and it provided the “sole means of access to [the plaintiff’s] employer’s shanty” (Id. at 321). The plaintiff in Conklin slipped on mud that had accumulated on the chicken ladder and the First Department reasoned that the lower court should have sustained the §23- 1.7(d) claim because “the ramp constituted a passageway alleged to have been covered in a slippery substance. Plaintiff slipped not on muddy ground but on mud covering the cross-pieces of the ramp.” (Id.). Courts have also relied on the inverse proposition, namely that an area is not a passageway if it is an open and common area, remote from the work site (Talbot v Jetview Properties, LLC, 51 AD3d 1396 [4th Dept 2008] [parking lot is not a passageway]; Hertel v Heuber-Breuer Construction Co, 48 AD3d 1259 [4th Dept 2008] [courtyard between two buildings is not a passageway]; Morra v White, 276 AD2d 536, 536-37 [2d Dept 2000] [an open lot at a construction site was not “a defined walkway 26 or passageway” even when the plaintiff slipped while crossing it on his way to take water readings]; Bruder, 307 AD2d 980-81 [2d Dept 2003] [the service entrance stairwell was not a passageway because it was an open and common area that was remote from the work site]). Applying the law and reasoning of the foregoing cases to the facts of the present case, the pit doors were not, open common or remote from the worksite. The walkway leading to the pit doors and ships ladder down to the lift mechanism formed a defined, easily ascertainable path from off the worksite to the subterranean lift mechanism of the Bridge. As discussed in the prior sub-point, the fact that Appellant’s path could be described as the sole means (A 120-21) of access is further evidence that the path was capable of certain delineation. With respect to openness, the pit doors were not a parking lot like in Talbot, a courtyard like in Hertel or other open area like in Morra. The dimensions of the pit doors on which Appellant actually slipped were only approximately five feet by five feet (A 148). Such area can hardly be considered the same as or even similar to a parking lot, courtyard or other open space. With respect to commonness, the pit doors and thirty-foot pit below were considered a “confined space” and “non-permitted” 27 areas requiring an air monitor, safety harness and tie off (A 135). Moreover, at the time of Appellant’s fall, Appellant’s co-workers were detouring traffic and closing off the Bridge to pedestrians (A 59, 141). With respect to remoteness, the pit doors were the sole means of access and directly connected to the actual worksite (A 120-21). In fact, Appellant was injured only approximately thirty feet from the worksite. This is very different from the facts in Bruder wherein the plaintiff fell at a location far removed from the actual worksite and there were other paths that the plaintiff could have taken to reach the worksite. By either or both court considerations listed above at sub- points (A) and (B), respectively, the walkway leading to the pit doors, and the pit doors themselves on which Appellant ultimately slipped, clearly qualify as a walkway or passageway for the purposes of a §241(6) claim predicated on §23-1.7(d). POINT III RECONCILING THE THREE CASES CITED BY THE MAJORITY (A) The Majority’s Reasoning, Generally The three-Justice majority in the present case focused its analysis on whether Appellant was using the area where he slipped as a passageway (Hecker, 92 AD3d at 1262). In support, 28 the majority cited three cases: Hertel, Bale, and Sullivan v RGS Energy Group, Inc., 78 AD3d 1503 (4th Dept 2010). Sullivan merely reiterates the proposition that it is a question of fact as to whether an area constitutes a “passageway” for the purposes of §23-1.7(d) (78 A.D.3d at 1503). Hertel and Bale both bolster the very established proposition that an open and common area is not a passageway for the purposes of a §241(6) claim predicated on a violation of §23-1.7(d) (see Point II[B], supra). As demonstrated below (see Point III[D], infra), however, the facts of Hertel and Bale are quite distinguishable from those of the present case and should not be relied upon for analogy. The additional role that Hertel plays in the majority’s analysis is that the language of the decision lends some support, albeit tenuous, for the proposition that the subjective intent of the injured worker at the time of his injury may single-handedly disqualify an otherwise qualifying passageway under §23-1.7(d) (see Hecker, 92 AD3d at 1262; see also Hertel, 48 AD3d at 1260). (B) Bale Supports the Dissent’s Legal Analysis But is Factually Distinguishable In Bale, the Fourth Department determined that “the accident occurred in an open area and not on a defined walkway, 29 passageway or path ...” (Bale, 256 AD2d at 1128). The present case is, nevertheless, distinguishable from Bale, in a few critical ways. First, in determining that the alleged passageway was not sufficiently defined, the Fourth Department focused on the plaintiff’s choice (see Id.). The plaintiff in Bale chose his own path through an open and common area to access “a job trailer outside a nearby building” and admittedly did so to avoid the wind (Id.). Conversely, as examined more fully in Point II(B), supra, the walkway, pit doors and ships ladder leading down to the lift mechanism constituted a defined path providing the sole means of access to the worksite (A 120-21). In other words, the plaintiff in Bale had his choice of paths through open, non-worksite areas, whereas Appellant had only one confined option to access the worksite. Furthermore, as examined more fully in Point II(B) supra, the metal pit doors on which Appellant ultimately slipped measured only five feet by five feet, were closed off to the public, and were in close physical proximity to the worksite. In other words, the pit doors on which Appellant slipped were a defined passageway, and not open, common or remote. The present case is more analogous to Conklin or Fassett, wherein the plaintiff was presented with only one means of accessing a necessary part of the worksite (i.e., respectively, 30 the “chicken ladder” or the “battery cover”) (Conklin, 49 AD3d at 321; Fassett, 66 AD3d at 1278). (C) Majority’s Reliance on Inconsequential Dicta in Hertel is Improper and Contrary to Established Precedent Including Rizzuto In Hertel, the plaintiff slipped and fell on a patch of ice on a concrete slab that was situated in an unenclosed area between two buildings under construction. At the time of his fall, plaintiff was unrolling a blanket to protect the concrete slab from becoming covered with snow during the night, in preparation for construction work the following day (Hertel, 48 Ad3d at 1260). The Fourth Department concluded: [12 NYCRR 23-1.7(d)] also is inapplicable because plaintiff was not using the area in which he fell as a passageway at the time of his fall (see generally Parker v Ariel Assoc. Corp., 19 AD3d 670, 672 [2005]). Rather, plaintiff's fall ‘occurred in a common area or open courtyard between the various buildings under construction.’ (Id.). The above language from Hertel places the greatest emphasis on the open and common nature of the site of the accident. The court’s reference to the injured worker’s state of mind at the time of the accident (i.e., what he was using the area for at 31 the time of his injury) is secondary or commentarial, otherwise the use of the word “Rather” is confusing (Id.). Focusing on the nature of the accident site itself is in line with precedent (see Point II, supra). Focusing on the subjective intentions or thoughts of the injured worker would be to inject a murky element into a relatively straightforward and firmly established method of analysis (see Point II, supra). Moreover, the fact that the accident site in Hertel was determined by the court to be “a common area or open courtyard” was independently sufficient to require the court to rule that §23-1.7(d) does not apply as a matter of law (Hertel at 1260). In other words, the new subjective element that the court in Hertel may have been trying to establish (assuming such was even the court’s intent) would be of no consequence to the final ruling. Such inconsequential and unsupported reasoning may hardly be relied upon to deny Appellant relief to which he would otherwise be entitled under the Labor Law. The only precedent offered in support of Hertel’s departure from the typical analysis is a “see generally” reference to Parker v Ariel Assoc. Corp., 19 AD3d 670 (2d Dept 2005). Parker is a case that does not even involve §23-1.7(d) “Slipping Hazards.” Parker involves allegations of Labor Law §240 and §241(6) predicated on 12 NYCRR §23-1.7(e)(1) “Tripping Hazards” (Id. at 671). 32 Even though Industrial Code sections 23-1.7(d) and 23- 1.7(e)(1) both employ the word “passageway,” the operative language is meaningfully different for the analogous purpose offered in Hertel and relied upon by the majority in the present case (see e.g., Cafarella v Harrison Radiator Div. of Gen. Motors, 237 AD2d 936 [4th Dept 1997], a truck bed filled with building materials covered in water, mud and oil on which the plaintiff slipped raised a question of fact with respect to whether §23-1.7(d) was violated, however 23-1.7(e) was ruled inapplicable, as a matter of law, for the simple reason that “a truck bed does not constitute a passageway”). Allowing the dicta in Hertel (with its own dubious foundation) to effectively control the outcome in the present case would be to limit §241(6) without justification and would be at odds with precedent and this Court’s reasoning in Rizzuto, that the landowner’s nondelegable duty under §241(6) is imposed to protect “persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed.” (Rizzuto, 91 NY2d at 348, [citations omitted and emphasis added]). Further, this Court summarized §23-1.7(d) as follows: [§23-1.7(d)], in pertinent part, unequivocally directs employers not to “suffer or permit any employee” to use a slippery floor or walkway, and also imposes an affirmative duty on employers to provide 33 safe footing by requiring that any “foreign substance which may cause slippery footing shall be removed * * * to provide safe footing” (Id. at 350-51, [emphasis in original]). This Court’s summary of §23-1.7(d) is consistent with precedent in that it correctly orients the analysis towards removing foreign substances to provide safe footing and protect workers. Even the reasoning in Rizzuto would not be immune to the Hertel exclusion advanced by the majority in the present case. The plaintiff in Rizzuto slipped while dealing with an impediment to his work (i.e., clean the fuel off himself), and, consequently, the accident site would cease to be a floor, walkway or passageway within the meaning of §23-1.7(d). Labor Law §241(6) is meant to protect workers generally in the specific ways set forth in the Industrial Code regulations and was not intended nor does it permit such nonsensical carve- outs (Id.). Moreover, §241(6) already possesses inherent safeguards in that, unlike §240, a violation of an Industrial Code regulation is merely some evidence that the jury may consider on the question of negligence (Id. at 349-51) and, further, comparative fault principles could further limit recovery (see e.g., Maza v University Ave. Dev. Corp., 13 A.D.3d 65, 65-66 [1st Dep. 2004]; 34 see also Bax v Allstate Health Care, 26 AD3d 861, 863 [4th Dept 2006]). The two-Justice dissent in the present case analyzed the relevant issue correctly in accordance with firmly established precedent, and there is simply no good reason to corrupt such lucid analysis: Inasmuch as the pit door was located on the sidewalk and was the only way to access the underground work site, we conclude that, at the time of his accident, claimant was using a passageway or walkway within the meaning of the regulation (see Fassett v Wegmans Food Mkts., Inc., 66 AD3d 1274, 1277-1278; Whalen v City of New York, 270 AD2d 340, 341- 342). (Hecker, 92 AD3d at 1263). (D) Hertel Facts are Distinguishable Even assuming that Hertel stands for the proposition that the majority proposes and Appellant’s subjective purpose ought to control the outcome of the present case, the facts in Hertel and the present case are, nevertheless, materially distinguishable. In Hertel, the plaintiff, at the end of the workday, was in a courtyard, laying down a blanket in preparation for work to be performed the following day (48 AD3d at 1260). In the present case, Appellant, at the start of his workday, was presented with a snow-covered worksite and all snow removal that he performed 35 was done with the sole intention of clearing the pit doors in order to immediately pass through them, descend the ships ladder and replace the defective sheaves in the lift mechanism below ground (A 139-40). The pit doors are not tantamount to a courtyard. Quick removal of an unforeseen obstacle in the direct and unique path to the worksite is not the same as covering a concrete slab in a courtyard for work to be performed the next workday. In Hertel, if snowfall was not anticipated the next day, the plaintiff, presumably, would have just left the worksite for the day. In the present case, if it had not snowed the night before the accident or if Respondent had previously performed its duty to render the worksite safe from slipping hazards, Appellant would have been able to immediately open and enter the pit doors, descend into the pit, shore up the Bridge and replace the defective sheaves as he and his co-workers were hired to do. In other words, Appellant was using the walkway and pit doors as a walkway or passageway but was simply impeded by Respondent’s negligence to render the pit doors safe from slipping hazards. It would run contrary to the very purpose of §241(6) (see Rizzuto, 91 NY2d at 348) if a landowner (or other party) was negligent in not rendering the worksite safe of slipping hazards and was wholly absolved of liability for resulting injuries to 36 innocent workers simply because such workers took reasonable steps to mitigate the effects of the negligence and get to work. Appellant was a construction worker on the Bridge owned by Respondent, a relatively small and defined construction site. Appellant was injured by the substantial amount of ice and snow permitted to accumulate on the diamond plate decking. Appellant would certainly be entitled to relief under §23-1.7(d) if Appellant had reached to open the pit doors without removing snow and slipped while reaching for the handle. Simply because Appellant identified the substantial quantity of snow and took reasonable measures to move it aside, he should not lose protection of §23-1.7(d). In both scenarios, Respondent did not perform its duty imposed by §23-1.7(d), and Appellant was injured while trying to get to work. Such “hair-splitting” with wholly determinative effect is at odds with precedent and common sense and should not be permitted by this Court to override the simple and sound analysis in Beltrone, Fassett and the dissent in the present case. Further, if the subjective intent of the injured worker is a necessary element in each application of §23-1.7(d), then this regulation will no longer be easily applied and one need not look further than the present case for an example. The intent of Appellant at the time he was injured would be a triable question of fact that has not been sufficiently developed or 37 even contemplated by the parties up to this point. Appellant must be given an opportunity to develop facts that control the viability of his claim. CONCLUSION Based on the foregoing, Appellant respectfully requests that the New York Court of Appeals reverse the order of the Appellate Division, Fourth Department, which stated that the walkway and pit doors were not a passageway for purposes of 12 NYCRR 23-1.7(d). Dated: July 25, 2012 Rochester, New York s/Jeffrey A. Vaisey JEFFREY A. VAISEY, ESQ. Tones Vaisey, PLLC Attorneys for Plaintiff-Appellant 560 Clinton Square Rochester, New York 14604 (585) 287-6525