Barnett v Port Auth. of N.Y.

[*1] Barnett v Port Auth. of N.Y. 2006 NY Slip Op 50888(U) [12 Misc 3d 1154(A)] Decided on April 5, 2006 Supreme Court, New York County Kapnick, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 5, 2006
Supreme Court, New York County

Gustave Barnett, Plaintiff,

against

The Port Authority of New York AND NEW JERSEY and KOCH SKANSKA, INC., Defendants.



101001/02

Barbara R. Kapnick, J.

In this action, plaintiff Gustave Barnett seeks to recover damages pursuant to New York's Labor Law § 200 and based on common law negligence for personal injuries he allegedly sustained on May 4, 2001 while working as a laborer for Minelli Construction ("Minelli"), a concrete subcontractor hired by defendant Koch Skanska, Inc., on the rehabilitation of the Outerbridge Crossing, which connects New York and New Jersey.

Plaintiff was allegedly using either a 60 or 90 pound pneumatic hammer supplied by his employer to perform a full deck repair on the bridge. The hammer allegedly hit a weak spot in the concrete causing the hammer to suddenly break completely through the deck. Plaintiff claims that he reflexively grabbed the hammer's air hose to keep it from falling through the deck and thereby injured his spine.

Defendant The Port Authority of New York and New Jersey ("Port Authority") owns the Outerbridge Crossing and was the construction manager for the project. Defendant Koch Skanska was the general contractor for the project.

A dispute arose between the parties in the first instance as to whether the accident occurred in New York or New Jersey, and this Court referred the issue to a Special Referee for a hearing. By Decision/Order dated February 3, 2005, this Court confirmed the report of Special Referee Louis Crespo dated December 16, 2004 and found that the accident, if any, took place in New Jersey and not New York. [*2]

As a result, the parties agree that New Jersey law applies to this case "since the site of the injury was located in New Jersey". Marchevka v. DeBartola Capital Partnership, 3 AD3d 477 (2nd Dep't 2004).

Defendants now move for summary judgment dismissing plaintiff's Complaint on the grounds that:

(1)plaintiff's claim pursuant to Labor Law § 200 must be dismissed because the State of New Jersey does not recognize the New York Labor Law and does not have a reciprocal statute;

and

(2)plaintiff's negligence claim must be dismissed because there is no evidence showing that defendants were negligent and/or exercised any control over plaintiff's work and/or that they provided plaintiff with the jackhammer in question.

That portion of the motion seeking to dismiss plaintiff's claim under the New York Labor Law is granted since the statute "has no application to an accident that occurs outside New York State". Webber v. Mutual Life Insur. Co. of New York, 287 AD2d 369, 370 (1st Dep't 2001).

With respect to plaintiff's negligence claim, defendants argue that a landowner has no duty under New Jersey law, "to protect an employee of an independent contractor from the very hazard created by the doing of the contract work, provided that the landowner does not retain control over the means and methods of the execution of the project (see Muhammad v. New Jersey Transit, 176 N.J. 185,... [2003]; Mitchell v. Route 21 Assocs., 233 AD2d 485,... [2nd Dep't 1996])." Marchevka v. DeBartola Capital Partnership, supra at 478.

Thus, defendants contend that "[i]n the absence of interference by a landowner in the performance of an independent contractor's work, the duty to insure that the job is performed in a safe manner is solely that of the contractor." Mitchell v. Route 21 Associates, supra at 485. See also, Coyne v. 101 Hudson Street Urban Renewal Associates, 256 AD2d 48 (1st Dep't 1998), lv. to app. denied, 93 NY2d 810 (1999).

However, the New Jersey Courts have held that [t]he question of whether a duty to exercise reasonable care to avoid the risk of harm to another exists is one of fairness and policy that implicates many factors (citation omitted). The determination of such a duty is generally considered a "a matter of law properly decided [*3]by the court." (citation omitted).

Carvalho v. Toll Brothers and Developers, 143 N.J. 565, 572 (1996).

The foreseeability of harm does not in itself establish the existence of a duty, but "is a significant consideration in the determination of a duty to exercise reasonable care." Carvalho v. Toll Brothers and Developers, supra at 572. See also, J.S. v. R.T.H., 155 N.J. 330 (1998). "Once the foreseeability of an injured party is established, ... considerations of fairness and policy govern whether the imposition of a duty is warranted." (citation omitted). The assessment of fairness and policy "involves identifying, weighing, and balancing several factorsthe relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution." (citations omitted).The determination of the foreseeability of harm and considerations of fairness and policy are connected.

Carvalho v. Toll Brothers and Developers, supra at 573. See also, New York City Asbestos Litigation v. A.C.& S., Inc., 5 NY3d 386 (2005).

"The element of control arising from the relationship between the parties and the opportunity and capacity of defendant to have avoided the risk of harm are also relevant in considering the fairness in imposing a duty of care." Carvalho v. Toll Brothers and Developers, supra at 576. See also, Webber v. Mutual Life Insur. Co. of New York, supra at 370.

The New Jersey Supreme Court has recognized that this "weighing process is 'fact-specific and principled; it must lead to solutions that properly and fairly resolve the specific case and generate intelligible and sensible rules to govern future conduct.' (citation omitted)." Pfenninger v. Hunterdon Central Regional High School, 167 N.J. 230, 241 (2001).

Thus, the Court found in Carvalho v. Toll Brothers and Developers, that an engineer, who did not have a contractual responsibility for the safety of the site, but had "explicit responsibilities to have a full-time representative at the construction site to monitor the progress of the [*4]work, which implicated work-site conditions relating to worker safety", ... "had the opportunity and was in a position to foresee and discover the risk of harm and to exercise reasonable care to avert any harm." Supra, at 577-578.

Therefore, the Court held that "considerations of fairness and public policy" required "imposing a duty of care on [the engineer] to exercise reasonable care to avoid the risk of injury on the construction site." Id. at 577.

In the instant case, plaintiff has submitted an affidavit from a site safety expert, Tony Raimo,[FN1] who observes that although defendant Port Authority's Resident Engineer for Staten Island Bridges testified that the Port Authority had a limit of 35 pounds on all pneumatic hammers being used to chip concrete from the bridge deck, as set forth in paragraph 6.03(A) of the structural notes, he also testified that the Port Authority permitted Minelli to use whatever sized pneumatic hammer it wished for the job.

According to Mr. Raimo, it was the obligation of the defendants, who maintained personnel at the site to, among other [*5]things, police for safety violations and to conduct regular checks of the tools and equipment being utilized by the contractors performing at the project to insure their compliance with applicable specifications for performing work. He contends that "[a]n oversized pneumatic hammer such as the one being utilized by the plaintiff at the time of his accident should have been immediately discernable to any experienced construction supervisor as exceeding the weight limit imposed by the construction specifications, and its use should have been immediately discontinued." In addition, Mr. Raimo is of the opinion that "[a]ny pneumatic hammer being used in an area where there was a risk of the pneumatic hammer breaking through the concrete deck should have been fastened to a secure part of the structure by means of a tie down cable, separate and apart from the air hose."

Defendants contend that the 35-pound limit was intended to limit the extent of damage to the remaining concrete deck of the bridge, and was not imposed for safety reasons. However, defendants do not specifically dispute that they maintained the authority to direct Minelli's workers to cease using any tools or equipment, including pneumatic hammers, that were deemed unsafe.

Accordingly, based on the papers submitted and the oral argument held on the record on September 14, 2005, this Court finds that the defendants had the opportunity and were in a position to foresee and discover the risk of harm to the plaintiff. Thus, in weighing considerations of fairness and public policy, as articulated by the New Jersey courts, this Court determines that defendants had a duty to exercise reasonable care to insure a safe workplace and to avert any harm to the workers on the site.

Moreover, this Court finds that there is at least an issue of fact as to whether defendantsbreached that duty by allowing Minelli's workers to routinely use jackhammers on the job site that were far over the size limit set forth in the job specifications.

Therefore, that portion of defendants' motion seeking to dismiss plaintiff's negligence claim is denied.

A pre-trial conference shall be held in IA Part 12, 60 Centre Street, Room 341 onMay 10, 2006 at 9:30 a.m.

This constitutes the decision and order of this Court.

Dated: April , 2006 _______________________ [*6]

Barbara R. Kapnick J.S.C. Footnotes

Footnote 1:Defendants argue that Mr. Raimo's report should not be considered because he has failed to show that he is an expert in the area of biomechanics and/or medicine. However, "[t]he competence of an expert in a particular subject may derive from long observation and real world experience, and is not dependent upon formal training or attainment of an academic degree in the subject". Miele v. American Tobacco Co., 2 AD3d 799, 802 (2nd Dep't 2003). Mr. Raimo indicated that he is the owner of CSE Consultants, a private construction industry consulting firm specializing in site safety, that prior to establishing CSE Consultants, he was a Vice President and Director of Safety for Lehrer McGovern Bovis, Inc. where he was responsible for company safety and health programming, policy making and corporate procedures for all of the company's subsidiaries nationwide, and that he has acted as the site safety director or site safety supervisor on numerous large scale construction projects in the metropolitan New York area, including the Jacob Javits Convention Center, the Grand Hyatt Hotel and Citicorp Center. To the extent that reasonable minds might disagree as to Mr. Raimo's qualifications as an expert and the basis for his opinion, the question is one for the jury.