Raul Barreto, Appellant, et al., Plaintiff,v.Metropolitan Transportation Authority, et al., Respondents. (And other Third-Party Actions.)BriefN.Y.February 11, 2015 To be argued by SUSAN PAULSON 5 Minutes Requested COURT OF APPEALS OF THE STATE OF NEW YORK RAUL BARRETO, Plaintiff-Appellant, -against- METROPOLITAN TRANSPORTATION AUTHORITY, NEW YORK CITY TRANSIT AUTHORITY, THE CITY OF NEW YORK and IMS SAFETY, INC., Defendants-Respondents. ________________________ IMS SAFETY, INC., Third-Party Plaintiff, -against- ANDRES SERVICES CORPORATION, Third-Party Defendant. _______________________ METROPOLITAN TRANSPORTATION AUTHORITY and NEW YORK CITY TRANSIT AUTHORITY, Second Third-Party Plaintiff, -against- PAL ENVIRONMENTAL SAFETY CORP., Second Third-Party Defendant. RESPONDENT’S BRIEF FOR THE CITY OF NEW YORK ZACHARY W. CARTER, Corporation Counsel of the City of New York, Attorney for the City of New York, 100 Church Street, New York, New York 10007. (212) 356-0821 or 2052 spaulson@law.nyc.gov FRANCIS F. CAPUTO, SUSAN PAULSON, Of Counsel July 22, 2014 Reproduced on Recycled Paper Page i TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii PRELIMINARY STATEMENT ...............................................................................1 QUESTION PRESENTED........................................................................................2 STATEMENT OF FACTS ........................................................................................2 1. Incident in Question.....................................................................................2 2. The Grant of Summary Judgment Dismissing This Action ........................6 RELEVANT STATUTES .........................................................................................9 ARGUMENT ...........................................................................................................10 CONCLUSION........................................................................................................18 PRINTING SPECIFICATIONS STATEMENT .....................................................20 Page ii TABLE OF AUTHORITIES CASES Ares v. State, 80 N.Y.2d 959 (1992)...................................................................................18 Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280 (2003).....................................................................................11 Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35 (2004).......................................................................... 11, 15, 17 Hagins v. State of New York, 81 N.Y.2d 921 (1993)...................................................................................11 Robinson v. East Med. Ctr., LP, 6 N.Y.3d 550 (2006).....................................................................................17 STATUTES Labor Law § 200................................................................................................1, 8 Labor Law § 240(1) ..................................................................................... passim Labor Law § 241(6) ..................................................................................... passim REGULATIONS 29 Code of Federal Regulations 1926.501(a)(4)(i) .............................................14 29 Code of Federal Regulations 1926.501 ............................................................9 PRELIMINARY STATEMENT Plaintiff-appellant Raul Barreto has sued several defendants on claims of common-law negligence and alleged violations of Labor Law §§ 200, 240(1) and 241(6).1 Barreto alleges that he was injured when he fell into an uncovered manhole, after he emerged from the manhole at the end of an asbestos removal shift and then began to break down a temporary eight-foot-square containment enclosure around the manhole before the manhole cover had been replaced. Supreme Court, New York County (Stallman, J.), granted summary judgment on the ground that Barreto’s own negligence was the sole proximate cause of his accident, and the Appellate Division, First Department, affirmed that ruling. This Court should likewise affirm. The undisputed evidence establishes that Barreto was provided with a readily available and adequate safety device that would have prevented his accident—the manhole cover—but that he frustrated the device’s effectiveness by his own actions, with no good reason. Disregarding specific instructions from his supervisor, Barreto began to break down the containment enclosure as soon as he exited the manhole, without first ascertaining that the manhole cover was in place. Consequently, as a matter of law, Barreto’s own actions were the sole proximate cause of his accident. 1 Because Barreto discontinued his common-law negligence and Labor Law § 200 claims against the City of New York (A15), the only claims against the City before this Court are those brought under Labor Law §§ 240(1) and 241(6). -1- QUESTION PRESENTED Whether the Appellate Division correctly affirmed the dismissal of Barreto’s complaint on the ground that his own conduct was the sole proximate cause of his accident, where the undisputed evidence demonstrated that the accident resulted directly from Barreto’s actions, contrary to specific instructions from his supervisor, in beginning to break down the temporary asbestos- containment enclosure surrounding the manhole without first ascertaining that the manhole cover was in place? STATEMENT OF FACTS 1. The Incident in Question Barreto sues for personal injuries he allegedly sustained on January 9, 2005, while working as an asbestos handler employed by PAL Environmental Safety Corp. on an underground asbestos removal project contracted for by the Metropolitan Transportation Authority (MTA) and its subsidiary, the New York City Transit Authority (NYCTA) (hereinafter together “TA”) (A1436-50).2 Barreto performed the asbestos removal in an underground area accessed through a manhole on the roadway at 60 Lafayette Street in Manhattan (A263-336, 807, 809). 2 Numbers in parentheses preceded by the letter A refer to pages of the Appendix, unless otherwise indicated. -2- As the asbestos abatement contractor, PAL was responsible for closing off the work area, building a containment area around the manhole, putting up plastic sheeting to contain the asbestos, and removing the manhole cover before commencing the abatement work (A808, 816). At the end of the shift, the work crew is responsible for replacing the manhole cover, after the safety monitor authorizes it to do so, then deconstructing the containment area, and when all other tasks are completed, removing the lights from the work area (A569, 867, 869). The lights should not be removed until the containment area is deconstructed and the manhole cover is replaced (A853, 868). In his deposition testimony, Barreto, a certified asbestos handler, described his accident and the events leading up to it as follows. He had been working at the 60 Lafayette Street site for about one week prior to his accident (A642-43). Before descending into the manhole and beginning the actual asbestos removal work, his job assignment, along with his two PAL co-workers, was to erect an eight feet-by-eight feet containment enclosure around the manhole consisting of two-by-fours, plywood, and plastic sheeting, to protect the above- ground area from asbestos contamination and to keep ordinary pedestrians from the manhole area (A562, 564, 814, 1101-02). When the enclosure was complete, an MTA inspector would ascertain that the power was turned off in the manhole and would then authorize the PAL crew to remove the manhole cover and descend into -3- the manhole to work (A1102-03). The crew would not remove the manhole cover until the MTA authorized the work to begin and until both the MTA and the site safety contractor, IMS Safety Inc,. authorized the work crew to work in the manhole (A1102-03). The containment enclosure remained in place while the crew was at work (A1105). At the end of the shift, the crew emerged from the manhole and brought up the tools, bags of asbestos, and lights so that the deconstruction of the eight-by-eight containment enclosure could begin (A1105). The crew would routinely wait until the supervisor stated that the manhole was covered before they began to deconstruct the containment enclosure around the manhole (A500, 631). Barreto testified that this procedure was followed on previous days at the 60 Lafayette Street project (A500, 631). Barreto was aware from his prior work at job sites involving asbestos removal in manholes that the cover to the manhole should be replaced once the workers and materials were out of the manhole (A524). He stated that, as a general matter, when you deconstruct the work area for any manhole job the first thing you do is cover the manhole and the next step is to start deconstructing the containment area (A493, 569). Typically, a supervisor at 60 Lafayette Street instructed the crew to put the cover on the manhole at the end of the workday (A501). Barreto did not -4- notice whether the supervisor then stayed at the manhole to see if it had been covered (A501). On the day of his accident, when Barreto emerged from the manhole and before he began his usual deconstruction work, the PAL supervisor instructed him that the manhole must be covered before deconstruction began (A622). Nonetheless, Barreto began deconstruction “right away,” as soon as he came out of the hole, without ascertaining that the manhole cover was in place (A520, 583-84, 667-68). Barreto admitted that he was not paying attention to whether the manhole was covered or not, and did not look to see if it was covered (A511, 520, 525, 584). During portions of his testimony, Barreto claimed that it was dark because the construction lights had already been removed, but he did not recall ever complaining about this or whether this had been the case on prior days as well (A576, 580, 587-89).3 Barreto testified that his work was directed solely by his PAL supervisor, Rafael Torres (A495). Shortly after the accident, Torres prepared and signed a Supervisor’s Accident Investigation regarding the subject accident, in which he stated that Barreto had been trained in proper safety procedures and had 3 At other points in his testimony, Barreto stated that the area received light from nearby streetlights (A506). Moreover, the Transit Authority’s Asbestos Handler Supervisor testified that when he went to the worksite after the accident, the manhole remained illuminated by the construction lights themselves (A866-67). -5- failed to “follow procedure of replacing manhole cover prior to anyone starting to breakdown wooden visual barrier” (A337). Torres stated in that, in the future, he would personally supervise the replacing of the manhole cover to try to ensure that employees would not violate procedure in this way again (id.). 2. The Grant of Summary Judgment Dismissing This Action Barreto initiated this action against the City and the Metropolitan Transportation Authority (A56-71), which he subsequently amended to add the New York City Transit Authority, as defendant (A381-96) and a separate action against IMS Safety Inc. (A72-81).4 Subsequently, defendant/third-party plaintiff, IMS, initiated an action for contribution and indemnity against third-party defendant Andres Services Corporation (A124-32) and the TA brought a second third party action again PAL. Neither PAL nor Andres Services Corporation appeared or answered in this action and the Supreme Court discontinued the second third-party action brought by the TA against PAL (A15). The City’s only connection to this matter is as an out-of-possession owner of the property, which it has leased to the Transit Authority since June 1, 1953 (A1470-1507). Following the completion of discovery, the parties filed cross-motions for summary judgment (A36-55; A338-79, A1055-1338, A1420-1507, A1549-53). 4 The Supreme Court consolidated Barreto’s two actions by Order dated April 5, 2006 (A121- 23). -6- Supreme Court, New York County (Stallman, J.) granted the motions for summary judgment of defendants TA and IMS, and the City’s cross-motion for summary judgment, dismissed the complaint and all cross-claims asserted against the City, denied Barreto’s cross-motion for summary judgment, and dismissed the complaint (A34-35). The Supreme Court first concluded that Barreto’s work was related to an elevation-related hazard and thus subject to Labor Law § 240(1) (A21-30). Next the court held that Barreto’s action was the “sole proximate cause of his injuries” (A30). The court reasoned that Barreto was fully aware that the correct and regular work routine on the project entailed waiting until the heavy manhole lid had been “muscled” into place by Barreto and his fellow PAL workers before starting to deconstruct the work area around it, and that Barreto’s testimony indicated that he had “no good reason” for failing to wait for the cover to be replaced on the manhole (A32-33). The court concluded that, because Barreto’s own conduct was the sole proximate cause of his injuries, all of his claims failed as a matter of law. The Appellate Division, First Department affirmed, with one justice dissenting (A1561). At the outset, the Appellate Division found that IMS cannot be liable for the accident because it was a subcontractor with no supervisory authority over Barreto or his work (A1563-64). The Appellate Division then concluded that the remaining defendants could not be held liable under Labor Law § 240(1) because Barreto’s conduct was the sole proximate cause of his injuries (A1564- -7- 65). The court observed that Barreto “was provided with the perfect safety device, namely, the manhole cover”, disregarded his supervisor’s explicit instructions to replace the cover before dismantling the enclosure, and did not provide any good reason why he started taking apart the enclosure without ascertaining whether the cover was in place (A1564). The court rejected Barreto’s argument that defendants should have furnished some other safety device around the manhole or that any such device would have prevented the accident (A1565). Thus, the First Department concluded that the City and TA are not liable for Barreto’s injuries under Labor Law § 240(1) (A1565). Addressing Barreto’s other claims, the court concluded that because none of the remaining named defendants supervised the work, nor were on notice of any premises defect, there is no basis for liability under Labor Law § 200 or any theory of common-law negligence. The court also rejected the claim under Labor Law § 241(6) on the ground that the predicate Industrial Code violations alleged by Barreto did not proximately cause the accident (A1565). Dissenting in part, Justice Feinman agreed that IMS is not a statutory agent subject to liability under Labor Law §§ 240(1) or 241(6), but would have held that Barreto is entitled to summary judgment on his Labor Law § 240(1) claim as against defendants TA and the City (A1566). Justice Feinman would have held that defendants failed to provide safety devices adequately protecting Barreto from -8- falling through the hole, that had a guardrail been provided Barreto would have been protected from the accident, and that any negligence on the part of Barreto was not the sole proximate cause his fall (A1567-70). RELEVANT STATUTES Labor Law § 240. Scaffolding and other devices for use of employees (1) All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed. Labor Law § 241. Construction, excavation and demolition work All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements: (6) All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. 29 Code of Federal Regulations 1926.501. Duty to have fall protection (4) Holes. (i) Each employee on walking/working surfaces shall be protected from falling through holes (including skylights) more than 6 feet (1.8 m) above lower levels, by personal fall arrest systems, -9- covers, or guardrail systems erected around such holes. (ii) Each employee on a walking/working surface shall be protected from tripping in or stepping into or through holes (including skylights) by covers. (iii) Each employee on a walking/working surface shall be protected from objects falling through holes (including skylights) by covers. ARGUMENT PLAINTIFF’S CLAIMS WERE CORRECTLY DISMISSED BECAUSE HIS OWN FAILURE TO OBSERVE THE SAFETY REQUIREMENTS OF HIS EMPLOYMENT WAS THE SOLE PROXIMATE CAUSE OF HIS ACCIDENT. In order to establish the City’s liability under Labor Law §§ 240(1) and § 241(6), Barreto must prove not only a statutory violation, but causation as well. Here, however, Barreto’s own conduct in disregarding his supervisor’s instructions not to start deconstructing the containment enclosure before the manhole cover was replaced was the sole proximate cause of his accident. Because Barreto cannot establish that any violation of the Labor Law was a contributing cause to the injuries he alleges, his claims against the City were properly dismissed. Labor Law § 240(1) imposes a non-delegable duty upon owners and general contractors to provide safety devices to protect workers from elevation- related risks. But the existence of an accident alone does not establish a Labor Law § 240(1) violation or prove the critical element of causation. Blake v. -10- Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 287-90 (2003). Rather, liability will attach only where the plaintiff proves that the statute was violated and that the violation was a contributing cause of plaintiff’s fall. Id. This Court has long held that if the plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation. Blake, at 290. Labor Law § 240(1) does not extend to a “recalcitrant worker” whose own refusal to use available safety devices results in injury. See Hagins v. State of New York, 81 N.Y.2d 921, 923 (1993). Thus, if a plaintiff has an adequate safety device readily available that would have prevented the accident, and for no good reason chooses not to use it, no claim under Labor Law § 240(1) will lie. Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 40 (2004). Though Barreto’s testimony here is littered with gaps in recollection, implausible contentions, and internal contradictions, he has squarely admitted the following facts that are dispositive on the sole proximate cause question. Barreto testified that he had been working at 60 Lafayette Street for about one week prior to his accident (A643). On the other days that he worked at the site the manhole had been covered before the crew began breaking down the containment enclosure (A631). On the day of his accident, when Barreto emerged from the manhole and before he began his usual deconstruction work, the PAL supervisor instructed him that the manhole must be covered before deconstruction began (A622). Barreto -11- admits that he was told that the manhole had to be covered before the breakdown began. Brief for Plaintiff-Appellant at 40. Nonetheless, disregarding his supervisor’s instruction, Barreto began the deconstruction work in the eight foot- by-eight foot containment enclosure “right away,” without checking to see if the manhole was covered (A520, 1105). He claims that he assumed that the cover had been replaced without anyone having stated as much and without his having ascertained, either by observation or by asking his coworkers or supervisor, that the cover was in place (A667-68, 1105). Based on these undisputed facts admitted by Barreto, both of the lower courts correctly held that Barreto’s own actions were the sole proximate cause of his accident (A30-33, 1564-65). In seeking reversal of the decision below, Barreto argues that the Appellate Division misconstrued and overlooked facts describing the conditions at the worksite and argues that because he was not personally directed to replace the manhole cover at the end of the shift, the lower courts erred in concluding that his own negligence was the sole proximate cause of the accident. Brief for Plaintiff- Appellant at 39-53. Barreto mistakenly argues that OSHA required guardrails to be in place while the manhole was open, and that the absence of a guardrail system caused his fall. Id. at 43-45. Barreto urges this Court to adopt Justice Feinman’s -12- reasoning in the partial dissent, as described below, and to grant him summary judgment on his Labor Law § 240(1) claim.5 Id. at 46, 53. In his partial dissent in the Appellate Division, Justice Feinman suggested that, because Barreto could not have physically replaced the manhole cover by himself, was not personally directed to cover the manhole, and was not responsible for ensuring that the manhole was covered, the manhole cover was not an adequate precaution against the danger of falling from a height as contemplated by Labor Law § 240(1) (A1568-69). Whether Barreto could replace the cover himself or was responsible for replacing it misses the point. Barreto was responsible for following the site safety procedures, which required him to ascertain that the manhole cover was in place before starting the breakdown of the containment enclosure (A337). In direct contravention of these safety procedures, Barreto exited the manhole and “right away” began to break down the area (A520). The manhole cover itself provided an adequate safety device, and only Barreto’s 5 Even if the evidence did not establish that Barreto was the sole proximate cause of his accident as a matter of law (and the evidence does establish this point), Barreto should not be granted summary judgment on his Labor Law § 240(1) claim. Barreto’s arguments rely heavily on his own testimony regarding the alleged absence of lighting and his purported ignorance as to whether the manhole cover had been replaced, among other points, but this testimony is replete with implausibilities and contradictions. Thus, even if the testimony were relevant to the question of sole proximate cause, as Justice Feinman acknowledges later in his partial dissent, at the very least, it raises a triable issue of fact as to whether Barreto was the sole proximate cause of his accident (A1569). -13- own actions, in commencing work without ensuring the cover was in place, deprived him of its protection. Justice Feinman also suggested that an additional safety device, such as a guardrail, should have been provided, and that if such a device had been provided, plaintiff would have been protected from this accident (A1569-70). But this suggestion is incorrect for two reasons. First, the relevant OSHA fall- protection regulations make clear that a cover for a hole or opening is a sufficient fall-protection device and do not require that more than one fall-protection device be provided. 29 CFR 1926.501(a)(4)(i). The regulations enumerate three permissible fall protection systems, each of which is sufficient to satisfy the OSHA requirement that employers protect employees from falling through holes or openings: (1) personal fall arrest systems (such as harnesses); (2) covers for the hole or opening; or (3) guardrails around the hole or opening. Id. Thus, the manhole cover constituted a sufficient safety device, and no further safety device was legally required. Second, Justice Feinman wrongly assumed that the other fall- protection devices described in the regulation, in contrast to covers, are somehow failsafe, regardless of whether employees comply with instructions. In fact, however, each of the fall-protection systems described in the regulation requires -14- employee compliance in order to afford protection from falling. Indeed, when replaced as instructed, a cover is the best fall protection of all. For example, this Court’s decision in Cahill demonstrates that personal fall-arrest systems, such as harnesses, require employee compliance as a precondition to their proper function. There, the plaintiff was employed in the reconstruction and repair of a bridge and was provided a safety harness, equipped with lanyards that the plaintiff was instructed to attach to a hook on the safety line when not using the “man lift” to ascend the bridge. Cahill, 4 N.Y. 3d at 75. The plaintiff chose not to use a safety line, fell, and was injured. This Court held that plaintiff’s conduct was the sole proximate cause of his accident, because he had adequate safety devices available, i.e. a personal fall arrest system, that he chose for no good reason not to use. Id. at 40. Here, too, an adequate safety device was made available, but Barreto frustrated its effectiveness by defying specific supervisory instructions, and he has failed to offer any good reason for having done so. Guardrails, which would also constitute an “adequate safety device” under the OSHA regulation, are likewise not a guaranteed protection against falls and require employee compliance and proper care as a precondition to their effectiveness. Even with a guardrail system in place, the barriers cannot surround the opening 100 percent of the time because workers and materials have to get in -15- and out of the manhole and, as Barreto notes in his brief, the barriers are removed when the manhole cover is replaced (A928-29, 937; Brief for Plaintiff-Appellant at 44). Thus, even when a guardrail system is used, if workers are not also protected by a personal fall arrest system, they have to be cognizant of their surroundings and, as a general matter, must always abide by OSHA safety rules (A926-32, 937). A cover for a hole or opening, like the other fall-protection devices identified in the OSHA regulations, constitutes an “adequate safety device,” but it will be effective in practice only where the employee complies with instructions for its proper use. Here, Barreto himself testified that he had been instructed, and had previously obeyed the instruction, to ascertain that the manhole cover was replaced before beginning the deconstruction work (A622, 624). Barreto received the very same instruction on the day of his fall. Yet, on the day of the accident, Barreto began deconstruction as soon as he exited the manhole, even though he was aware that none of the supervisors who had the authority to direct that the manhole be covered had entered the small eight-by-eight containment area (A583- 85). In fact, since the supervisors did not remove or replace the manhole cover themselves, but only gave permission to the PAL workers to open and close the manhole (A465, 501), Barreto must have known that the manhole was not covered, because he and his co-workers had not covered it. Yet, he went ahead and started deconstructing the containment enclosure anyway (A1105). -16- This Court has specifically held that, where an employer has made available adequate safety devices and an employee has been instructed to use them, the employee may not recover under Labor Law § 240(1) for injuries caused solely by his violation of those instructions. Cahill, 4 N.Y.3d at 37. Barreto knew the purpose of replacing the manhole cover was to ensure the safety of the work crew while working within the small space of the containment enclosure, and yet he “did not look” to see if the cover was in place before starting to deconstruct the containment enclosure even though his supervisor had told him that very day that the manhole had to be covered before he began deconstructing the containment enclosure (A337, 502, 622). Had Barreto waited until the manhole was covered, he would not have fallen through it and been injured. Accordingly, both courts below correctly found that Barreto’s own negligent actions—beginning the deconstruction of the containment enclosure without first ascertaining that the manhole cover was in place—were, as a matter of law, the sole proximate cause of his injuries. See Robinson v. East Med. Ctr., LP, 6 N.Y.3d 550, 555 (2006) (plaintiff’s own negligence in choosing to use ladder that he knew was too short for the work were, as a matter of law, the sole proximate cause of his injuries). Barreto’s own negligence also precludes him from recovery under Labor Law § 241(6). In order to establish liability under Labor Law § 241(6), Barreto must not only demonstrate a violation of a safety regulation, but also that -17- such violation was the proximate cause of the accident. See Ares v. State, 80 N.Y.2d 959 (1992). Where, as here, no violation of the Industrial Code provisions cited by Barreto proximately caused his accident, his Labor Law § 241(6) claim against the City was properly dismissed (A1565). In sum, because Barreto’s actions were the sole proximate cause of his injuries, the lower courts properly dismissed Barreto’s cross-motion for summary judgment, and granted the City’s cross-motion for summary judgment dismissing the complaint and all claims asserted against it. CONCLUSION THE DECISION APPEALED FROM SHOULD BE AFFIRMED, WITH COSTS. ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for The City of New York, 100 Church Street, Room 6-184 New York, New York 10007 (212) 356-0821 or 2502 spaulson@law.nyc.gov By: SUSAN PAULSON, Assistant Corporation Counsel FRANCIS F. CAPUTO, SUSAN PAULSON, of Counsel -18- PRINTING SPECIFICATIONS STATEMENT This brief was prepared with Microsoft Word 2000, using Times New Roman 14 pt. for the body and Times New Roman 12 pt. for footnotes. According to the aforementioned processing system, the entire brief, including portions that may be excluded from the word count pursuant to 22 N.Y.C.R.R. § 600.10(d)(1)(i), contains 4,555 words. Susan Paulson, Assistant Corporation Counsel -19-