Bax v Allstate Health Care Inc.
Annotate this CaseDecided on January 6, 2005
Supreme Court, Niagara County
Leo L. Bax and Candice M. Bax, Plaintiffs,
against
Allstate Health Care Inc. a/k/a ALLSTATE HOME CARE OF NIAGARA INC., DIANA MALDONADO a/k/a DIANA MALDONADO PRYOR, COLT BLOCK ASSOCIATION c/o CONTINENTAL SECURITIES CORPORATION, DIMARCO CONSTRUCTORS CORP., J. DIMARCO BUILDERS, and MARTIN ROSE ASSOCIATES, P.C., Defendants.
112834
John Lloyd Egan, Jr., Esq.
John Lloyd Egan & Associates
Attorneys for Plaintiff
905 Convention Tower
43 Court Street
Buffalo, New York 14202
Joseph A. Matteliano, Esq.
Davis, Augello, Matteliano & Gersten, LLP
Attorneys for Defendant Allstate Health Care Inc. a/k/a
Allstate Home Care of Niagara Inc.,
17 Court Street
Buffalo, New York 14202-3204
Cornelius J. Lang, Esq.
Ziller, Marsh, & Lang
Attorneys for Defendant Diana Maldonado a/k/a
Diana Maldonado Pryor
1717 Liberty Building
Buffalo, New York 14202
Daniel J. Marren, Esq.
Brown & Kelly, LLP
Attorneys for Defendant Colt Block Association c/o
Continental Securities Corporation
1500 Liberty Building
Buffalo, New York 14202-3663
Richard T. Saraf, Esq.
Goldberg, Segalla, LLP
Attorneys for Defendants DiMarco Constructors Corp.,
and J. DiMarco Builders
120 Delaware Avenue
Buffalo, New York 14202
Samuel M. Vulcano, Esq.
Sugarman Law Firm, LLP
Attorneys for Defendant Martin Rose Associates, P.C.
360 South Warren Street
HSBC Center, Fifth Floor
Syracuse, New York 13202
Ralph A. Boniello, J.
There are several motions before this Court. By Notice of Motion (incorrectly titled a
Cross-Motion and incorrectly requesting dismissal of the Defendants' Motions herein), the Plaintiffs are
requesting Summary Judgment on the issue of liability against Defendants DiMarco Constructors Corp.,
and J. DiMarco Builders (hereinafter, "DiMarco Builders"), Colt Block Association c/o Continental
Securities Corporation (hereinafter, "Colt Block") and Martin Rose Associates, P.C. (hereinafter,
"Martin Rose"), on the grounds that a violation of Section 240 (1) of the New York State Labor Law
has been established as a matter of law.
In response, Defendant DiMarco seeks Summary Judgment dismissing the Plaintiffs' Complaint alleging causes of action of negligence (premises liability, improper renovations to the roof and design defect), Labor Law violations and a derivative claim. Defendant Colt Block has moved for Summary Judgment dismissing the Plaintiffs' Complaint alleging causes of action of negligence (premises liability and design defect), Labor Law violations and a derivative claim. Defendant Martin Rose also seeks dismissal of Plaintiffs' Complaint alleging causes of action of negligence (design defect), Labor Law violations and a derivative claim. Plaintiffs have cross-moved against Defendant Martin Rose seeking Summary Judgment dismissing its Answer and [*2]determining as a matter of law that the failure to adhere to the relevant building code sections was the proximate cause of the Plaintiff's injuries.
The Plaintiffs have also moved for Summary Judgment on the issue of liability against Defendant
Allstate Health Care Inc., a/k/a Allstate Home Care of Niagara Inc. (hereinafter, "Allstate"), under the
doctrine of negligent hire, retention, training and supervision of its employee co-Defendant Diana
Maldonado a/k/a Diana Maldonado Pryor (hereinafter, "Pryor").
Defendant Allstate has Cross-Moved requesting Summary Judgment dismissing the
Plaintiffs' Complaint. Defendant Pryor also seeks Summary Judgment dismissing the Plaintiffs'
Complaint alleging causes of action of negligent supervision and negligent entrustment of a dangerous
instrumentality against her.
The Plaintiff Leo L. Bax (hereinafter, "L. Bax") was employed by Commonwealth Management/Baldwin Realty and was the maintenance supervisor of Defendant Colt Block's apartment building. Although Defendant Colt Block was the owner of the apartment building located at 2119 Main Street in the City of Niagara Falls, the maintenance and management function of the building was hired out to Commonwealth Management/Baldwin Realty. In the early 1980's, the roof of the apartment building had undergone renovations that were designed by Defendant Martin Rose and constructed by Defendant DiMarco. The renovations included the installation of automatic smoke hatches over the emergency exit stairwells and elevator shafts as well as the construction of a railing surrounding the exterior of the door to the roof.
Defendant Pryor was a home health care aide employed by Defendant Allstate and regularly provided in home services to Thomas Degenhart, a tenant in the apartment building. The Plaintiffs claim that Defendant Pryor would bring her children with her to work and allow them to play, unsupervised, in the halls while she attended to Mr. Degenhart. Specifically, on February 11, 2000, the Plaintiffs allege that one or more of Defendant Pryor's children accompanied her to work and activated the fire alarm which was located in the hallway near Mr. Degenhart's apartment. As a result of the fire alarm being activated, three smoke hatches located on the roof of the building automatically opened. Once the Plaintiff L. Bax discovered that there was no fire, he proceeded to the roof alone after declining assistance from a co-worker for the purpose of manually closing the smoke hatches. There were interior pull ropes to close the smoke hatches, but only one was accessible. While attempting to walk along the interior area of the roof to close the smoke hatches, the Plaintiff L. Bax fell twice including falling from a higher roof level onto a lower roof section injuring himself. Thereafter, the Plaintiffs commenced this action against Defendants DiMarco, Colt Block and Martin Rose alleging causes of action of negligence, Labor Law violations and a derivative claim as well as against Defendants Allstate and Pryor based upon various claims of negligence.
Summary Judgment is a drastic remedy which should not be granted if there is a possible relevant factual issue (Siegel, NY Prac § 278, at 438-439 [3d ed]).It is well settled that a party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]).
The law is clear that Labor Law § 240 (1) does not apply to routine maintenance in a non-construction or non-renovation context (Brown v Christopher St. Owners Corp., 87 NY2d 938 [1996]; Short v Durez Division-Hooker Chems. & Plastic Corp., 280 AD2d 972 [4th Dept [*3]2001]; Williams v Perkins Restaurants, 245 AD2d 1128 [4th dept 1997]). The Plaintiffs herein allege in their Complaint that on February 11, 2000, Plaintiff L. Bax fell down while attempting to repair the smoke hatches by removing an accumulation of snow and ice in order to allow them to be closed. Because Plaintiff L. Bax was neither working on a construction project, renovation or alteration nor employed to carry out repairs, he was not engaged in a protected activity within the scope of Labor Law § 240 (1) (Gibson v Worthington Division-of-McGraw-Edison Co., 78 NY2d 1108 [1991]; Foster v David J. Joseph Co., 216 AD2d 944 [4th Dept 1995]; Warsaw v Eastern Rock Prods., 193 AD2d 1115 [4th Dept 1993]). Further, because the activity that produced the injury did not occur during the construction, demolition or excavation of a building or structure there can be no claim under Labor Law § 241 (6) (Nagel v D & R Realty Corp., 99 NY2d 98 [2002]; Henneberry v City of Buffalo, 206 AD2d 882 [4th Dept 1997]; Vincent v Dresser Industries, 172 AD2d 1033 [4th Dept 1991]). Moreover, where the construction, excavation or demolition has been completed, no liability arises under Labor Law § 240 and § 241(Callari v Pellitieri, 130 AD2d 935 [4th Dept 1987]). Therefore, the Plaintiffs' causes of action asserting violations of Labor Law § 240 and § 241 must be dismissed against Defendants DiMarco, Colt Block and Martin Rose.
A duty to provide a safe place to work is based upon the fact that the party charged with that responsibility has the authority to control the activity bringing about the injury in order to enable it to avoid or correct an unsafe condition (Reger v Harry's Harbour Place Grille, Inc., 5 AD3d 1065 [4th Dept 2004]). However, the law is clear that where a party is potentially liable under Labor Law § 200 or common law negligence, there is no duty to protect workers against a condition that is readily observed (Millson v Arnot Realty Corp., 266 AD2d 918 [4th Dept 1999]; Shandraw v Tops Mkts., 244 AD2d 997 [4th Dept 1997]; Hill v Corning Inc., 237 AD2d 881 [4th Dept 1997]). Moreover, where the alleged dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under Labor Law § 200 or common law negligence (Lombardi v Stout, 80 NY2d 290 [1992]). It is undisputed that poor weather conditions, including strong winds and freezing rain existed at the time of the incident, which resulted in severe icy conditions on the roof top. It is also undisputed that prior to walking out on to the roof, Plaintiff L. Bax was aware of the icy conditions that existed on the surface of the roof (see, Defendant Colt Block's papers, Exhibit E, Plaintiff L. Bax Deposition, page 125, lines 10-23). Moreover, there is nothing in the record that demonstrates that Defendant Colt Block, as owners of the building, exercised any supervisory control over Plaintiff L. Bax or had actual or constructive notice of any alleged defective or dangerous condition. In fact, the Plaintiff L. Bax had previously performed maintenance tasks on the roof during the winter season without incident (see, Defendant Colt Block's papers, Exhibit E, Plaintiff L. Bax Deposition, page 69, lines 2-21). As a result, the Plaintiffs' claims under Labor Law § 200 and common law negligence must also fail against Defendant Colt Block. Further, as a matter of law, the Court also dismisses the Labor Law § 200 claim against Defendants DiMarco and Martin Rose.
The record reflects that the renovations were performed by Defendant DiMarco in accordance with the design plans drafted by the architect Defendant Martin Rose. There is no evidence before the Court that establishes that Defendant DiMarco deviated in anyway from such design. Further, after completion of the project, the City of Niagara Falls conducted an [*4]inspection of the premises and issued a Certificate of Occupancy. Moreover, Defendant DiMarco submitted an Affidavit by Thomas R. Kiener, a professional engineer who opined that the renovations that were performed were in "substantial compliance" with the Building Code provisions. Specifically, Mr. Kiener noted that the subject code provisions allegedly violated were implemented to prevent falls from a roof to the ground and not to prevent someone from slipping while performing routine maintenance tasks. Mr. Kiener concluded that the Plaintiff's slip and fall on an icy rooftop was the sole proximate cause of his injuries. Even if the Plaintiffs were able to establish a Building Code violation relating to the placement of the railing, the Defendants point to the fact that the location of the smoke hatches and the areas where the Plaintiff L. Bax fell did not occur near the edge of the roof where it is claimed the railings should have been installed. Further, the law is clear that the scope of an architect's duty is to exercise that degree of care in his plan or design so as to avoid any unreasonable risk of harm to anyone who is likely to be exposed to the danger (Cubito v Kreisberg, 69 AD2d 738 [2nd Dept 1979]). The record reflects that the Plaintiff and other co-workers had previously manually closed the smoke hatches from the roof on numerous occasions without incident. Under the facts and circumstances herein, the Court concludes that it would be pure speculation for a jury to find that the presence of a three foot parapet wall or railing around the parameter or interior portions of the roof would have prevented the Plaintiff L. Bax from falling on the icy roof (see, Jenkins v NY City Hous. Auth., 2004 NY App Div LEXIS 12372 [1st Dept 2004]). In addition, the Court finds the Plaintiffs' claim that the smoke hatches were defective and/or damaged requiring repair because they could not "unfreeze" to be without merit. As a result, the claims of negligence against Defendants DiMarco and Martin Rose must also be dismissed.
The Plaintiffs' claims against Defendant Allstate based upon the doctrine of negligent hire, retention, training and supervision of its employee Defendant Pryor must also be dismissed. It is well settled that an employer will be liable for the negligence of an employee committed while the employee is acting in the scope of his employment (Lundberg v State, 25 NY2d 467 [1976]). An employee acts in the scope of his employment when he is doing something in furtherance of the duties he owes to his employer and where the employer is, or could be, exercising some control, directly or indirectly, over the employee's activities (Zanghi v Laborers' Int'l Union, Local 210, 8 AD3d 1033 [4th Dept 2004]). The Plaintiffs' Bill of Particulars indicates that the incident took place at approximately 3:30 p.m. on February 11, 2000, which Plaintiff L. Bax later reaffirmed during his deposition. Significantly, the time sheets for Defendant Pryor indicate that she assisted Mr. Degenhart from 9:00 a.m. until 11:00 a.m. and again from 4:00 p.m. to 7:00 p.m. on the day of the incident. As a result, Defendant Allstate asserts that because Defendant Pryor was not scheduled to work until 4:00 p.m. that she was not acting in the scope of her employment when the incident took place at 3:30 p.m. However, the Plaintiffs contend that the incident did take place during Defendant Pryor's work shift. In support of their position, the Plaintiffs point to the testimony of Defendant Pryor and Mr. Degenhart. Defendant Pryor stated that her work shift commenced at 3:00 p.m., and that she may have worked three shifts that day. Further, Mr. Degenhart testified that he believed that the alarm went off at approximately 5:00 p.m. Clearly, there is a dispute as to when Defendant Pryor's work shift began as well as when the fire alarm was activated. Nevertheless, the Court finds that the Defendant Pryor's decision to allow her children to play in the hallways of the apartment [*5]building while attending to Mr. Degenhart in violation of Defendant Allstate's written policy and verbal instruction was nothing more than a personal decision over which Defendant Allstate had no control or prior knowledge. In fact, Mr. Degenhart stated that he never told Defendant Allstate about the presence of Defendant Pryor's children indicating that he promised her that he wouldn't tell anybody.
Finally, the Plaintiffs' allegations that Defendant Pryor was negligent in failing to obtain a babysitter for her children, in negligently supervising her children and in negligently entrusting to them a dangerous instrument must also fail. The Court is not aware of any authority that would support a claim against a parent based upon negligently failing to obtain a babysitter. Further, the law is clear that a parent is not liable for the negligent supervision of his or her children (Holodook v Spencer, 36 NY2d 35 [1974]; Passe v Holiday Inns, 248 AD2d 982 [4th Dept 1998]). However, a parent owes a duty to shield third parties from a child's improvident use of a dangerous instrument, especially when the parent is aware of and capable of controlling its use (Nolechek v Gesuale, 46 NY2d 332 [1978]). Liability against a parent may also arise where the child has a tendency to engage in vicious conduct that might endanger a third party, and the child's parents are aware of such dangerous propensities (La Torre v Genesee Mgmt., 90 NY2d 576 [1997]). The Plaintiffs assert that the fire alarm pull station in the apartment hallway was a dangerous instrument and that Defendant Pryor negligently entrusted it to her children by allowing them to play unsupervised in the hallways despite knowledge of their vicious propensities. The Court finds that a safety device such as a fire alarm pull station does not constitute a dangerous instrumentality within the meaning of a cause of action for negligent entrustment of a dangerous instrumentality. With respect to the misbehavior of Defendant Pryor's children, such conduct, although arguably disruptive, is not in and of itself vicious in nature. Moreover, even assuming that the conduct of Defendant Pryor's children could be deemed vicious, there is absolutely no proof that Defendant Pryor knew of any prior incident where her children played with or even touched the fire alarm. Thus, the Plaintiffs' claims against Defendant Pryor must also be dismissed.
All other allegations asserted by the Plaintiffs against the Defendants not specifically addressed herein have been considered by the Court and are found to be without merit.
Accordingly, the Plaintiffs' Motions for Summary Judgment on the issue of liability against Defendants DiMarco, Colt Block, Martin Rose and Allstate are denied. The Court grants the Motions for Summary Judgment dismissing the Plaintiffs' Complaint brought by Defendants DiMarco, Colt Block and Martin Rose. Further, the Plaintiffs' Cross-Motion against Defendant Martin Rose seeking Summary Judgment dismissing their Answer and determining as a matter of law that their failure to adhere to the relevant building code sections was the proximate cause of the Plaintiff's injuries is denied. Defendant Allstate's Cross-Motion for Summary Judgment dismissing the Plaintiffs' Complaint is granted. The Court also grants Defendant Pryor's Motion for Summary Judgment dismissing the Plaintiffs' Complaint. [*6]
__________________________________
RALPH A. BONIELLO, III.
Supreme Court Justice
Dated: January 6, 2005
Niagara Falls, New York
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