Louis v Town of N. Elba
Annotate this CaseDecided on July 3, 2009
Supreme Court, Essex County
Ryan P. St. Louis, Plaintiff
against
Town of North Elba; Town of North Elba as Trustee for the Town of North Elba Public Parks and Playgrounds District; and Town of North Elba Public Parks and Playgrounds District, Defendants
277-03
Pennock Breedlove & Noll, LLP (Sarah I. Goldman, Esq., of counsel), Clifton Park, New York, for plaintiff.
Roemer Wallens & Mineaux LLP (Matthew J. Kelly, Esq., of counsel), Albany, New York, for defendants.
Richard B. Meyer, J.
Motion by the defendants for summary judgment dismissing plaintiff's personal injury action [*2]based upon Labor Law §241(6)[FN1].
This action arises out of an incident occurring on July 25, 2002 at the McKenzie-Intervale Olympic (Ski) Jumping complex in Lake Placid, New York. Plaintiff, then 20 years of age, was working for the Olympic Regional Development Authority (ORDA) performing maintenance work consisting primarily of mowing grass and carpentry work. At the time of the accident, other ORDA employees were assembling sections of pipe to be installed in a narrow trench. A section of pipe was being held above the trench at a height of approximately five feet, or chest level, by the clamshell of an ORDA-owned front-end loader. As ORDA employee Anthony Preston (Preston) welded sections of the pipe together, the plaintiff's cousin, Andrew St. Louis (Andrew), was chipping excess welding material (sledge) from the pipe. During this process, Andrew was called away to take a phone call and before leaving he called the plaintiff over to "stand by" until Preston needed a welding rod or the chipping hammer. Despite never having received instructions on how to chip sledge, and without being instructed to do so, the plaintiff picked up the hammer and struck the pipe believing the same to be "a simple job". After striking the pipe once, it fell out of the clamshell on top of him, causing injuries to his legs and feet. The testimony at the pretrial depositions established that no equipment owned by the defendants was used in the work, at no time did any employee of the defendant supervise the work, and that the work (including the activities of the plaintiff) was being conducted and supervised by solely by ORDA.
Plaintiff's cause of action under Labor Law §241(6) is premised upon non-delegable violations of 12 NYCRR §23-9.2(a) and §23-9.4(e) of the Industrial Code. §23-9.2(a) requires "[a]ll power-operated equipment . . . [to] be maintained in good repair and proper operating condition at all times . . . [with] [s]ufficient inspections of adequate frequency . . . to insure such maintenance . . .". Plaintiff contends that the loader's hydraulic locks malfunctioned causing the pipe to fall. §23-9.4(e) mandates that "[a]ny load handled by such equipment . . . be suspended from the bucket or bucket arm by means of wire rope having a safety factor of four." Plaintiff postulates that had the pipe been suspended by a "wire rope" or chain the pipe would not have fallen when the hydraulic locks malfunctioned. The defendant asserts that these code provisions are general in nature, do not apply to "material hoists", and any violation thereof was not a proximate cause of the accident and plaintiff's injuries.
It is well-settled that summary judgment "is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues (Millerton Agway Co-op. v. Briarcliff Farms, 17 NY2d 57)" (Andre v. Pomeroy, 35 NY2d 361, 364). In order for a party to be entitled to summary judgment, "it must clearly appear that no material and triable issue of fact is presented (Di Menna & Sons v. City of New York, 301 NY 118)" (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404,), and it is incumbent upon "the movant [to] establish his cause of [*3]action or defense sufficiently to warrant the court as a matter of law in directing judgment' in his favor (CPLR 3212, subd. (b)), and he must do so by tender of evidentiary proof in admissible form" (Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 NY2d 1065, 1067,).
Labor Law §241(6) "imposes a nondelegable 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 [citations omitted]" (Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 NY2d 343, 348). A violation results in "absolute liability" (Allen v. Cloutier Constr. Corp, 44 NY2d 290, 300,) "even in the absence of control or supervision of the worksite" (Rizzuto v. L.A. Wenger Contracting Co., Inc., supra at 349-350). "In order to successfully establish the statutory cause of action, a plaintiff must show the applicability of a specific provision of the Industrial Code to the relevant work, a violation of the regulation, and that such violation constituted causally related negligence [citations omitted]" (Copp v. City of Elmira, 31 AD3d 899, 900).
The defendant's liability under Labor Law §241(6) cannot be based upon the provisions of 12 NYCRR §23-9.2(a). "[T]he first two sentences of section 23-9.2(a) — which employ only such general phrases as good repair,' proper operating condition,' [s]ufficient inspections,' and adequate frequency' — are not specific enough to permit recovery under section 241(6) against a nonsupervising owner or general contractor" (Misicki v. Caradonna, 12 NY3d 511, ___ [2009]).
The defendant's motion for summary judgment must, however, be denied. Contrary to the defendant's contentions, the provisions of 12 NYCRR §23-9.4 are specific, not general in nature (see Copp v. City of Elmira, supra). Moreover, although the requirements of 12 NYCRR Subpart 23-9 do "not apply to material or personnel hoists (see Subpart 23-6)" (12 NYCRR §23-9.1[a]), the provisions of the Industrial Code applicable to material hoists (12 NYCRR §23-6.1 - §23.6.3) "apply to all material hoisting equipment except . . . excavating machines used for material hoisting . . ."). Furthermore, 12 NYCRR §23-9.4(a) specifically applies to power shovels and backhoes "used for material handling". Thus, where "power-operated heavy equipment or machinery" such as excavating equipment (i.e., front-end loaders) are used for hoisting material in construction, demolition and excavation operations in violation of 12 NYCRR §23-9.4, liability under §241(6) can be imposed upon a nonsupervising owner (see Copp v. City of Elmira, supra). As the court stated in Copp : "The regulation clearly addresses situations in which construction equipment is used to lift materials and sets forth pertinent safety standards. The term power shovel is not separately defined and where, as here, construction equipment is used to attempt to accomplish the same task as a power shovel, it would be inconsistent with the purpose of the regulation and cause an objectionable result to find the safety precautions regarding lifting materials inapplicable (see Matter of ATM One v. Landaverde, 2 NY3d 472, 476-477 [2004])." (Id. at 900).
To otherwise read these provisions of the Industrial Code would also result in a complete exemption [*4]from safety requirements for excavating equipment used to hoist materials during or as part of construction, demolition or excavation operations. Because the front-end loader was being used to hoist material and the pipe was not "suspended from the bucket or bucket arm by means of wire rope having a safety factor of four" (12 NYCRR §23-9.4[e]) at the time of plaintiff's accident, material issues of fact exist relative to proximate cause and plaintiff's comparative negligence, thereby requiring a trial.
Counsel shall appear before the Court for a pretrial conference on July 24, 2009 at 11:00 a.m. Trial is scheduled to commence August 24, 2009 at 9:00 a.m. with jury selection.
IT IS SO ORDERED.
ENTER
_____________________________________
Richard B. Meyer
J.S.C. (Acting)
Footnotes
Footnote 1:The amended complaint contained two other causes of action premised upon Labor Law §200 and §240(1). In response to the present motion for summary judgment, plaintiff consented to dismissal of his §200 claim. His cause of action under §240(1) was previously dismissed (St. Louis v. Town of North Elba, 17 AD3d 832, 793 NYS2d 592).
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