Vasquez v. FCE Industries, Ltd., No. 08-4566 (2d Cir. 2009)

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08-4566-cv Vasquez v. FCE Industries, Ltd. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2009 (Argued: August 26, 2009 Decided: September 15, 2009) Docket No. 08-4566-cv - - - - - - - - - - - - - - - - - - - -x CIRA BAUTISTA VASQUEZ, individually, on behalf of VICTOR ARTURO MEDINA BAUTISTA, a minor and as Representative of the Estate of GUMERSINDO MEDINA DUARTE, deceased, also known as ARTURO MEDINA DUARTE, Plaintiff-Appellant, - v.GMD SHIPYARD CORP., Defendant-Cross-ClaimantCross-Defendant-Appellee. ALLIED TRANSPORTATION LLC, as Owner and Operator of T/B ATC 23, Defendant-Cross-ClaimantCross-Defendant, FCE Industries, Ltd., Defendant-Cross-Defendant. - - - - - - - - - - - - - - - - - - - -x 1 2 Before: JACOBS, Chief Judge, NEWMAN, Circuit Judge, and Trager, District Judge.* 3 4 Appeal from a judgment entered after a bench trial in 5 the United States District Court for the Eastern District of 6 New York (Block, J.). 7 ascending the wall of a tank aboard a vessel in dry dock at 8 the Brooklyn Navy Yard. 9 general contractor, asserting claims under, inter alia, New A welder fell to his death while The estate and family sued the 10 York s Scaffold Law, N.Y. Labor Law § 240(1). 11 district court found that the decedent, in order to let a 12 co-worker descend the same ladder the decedent was using to 13 ascend, had stepped off the ladder, and began climbing up 14 the angle irons. 15 concluding that the general contractor was not negligent, 16 and was not liable for failing to provide appropriate safety 17 equipment. 18 chiefly to clarify that the district court had federal 19 maritime jurisdiction. The The court dismissed all claims, We affirm the judgment, and publish this opinion 20 * The Honorable David G. Trager, United States District Court for the Eastern District of New York, sitting by designation. 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 WENDY FLEISHMAN, Lieff, Cabraser, Heimann & Bernstein LLP, New York, NY, for Appellant. JOSEPH E. DONAT (John F. Gaffney, on the brief) Herzfeld & Rubin, P.C., for Appellee. Dennis Jacobs, Chief Judge: Decedent Gumersindo Medina Duarte ( Medina ) died in a 15 tragic accident while working aboard the Tank Barge ATC 23 16 on January 23, 2007. 17 species of dry dock, at the Brooklyn Navy Yard. 18 was working on the floor of a tank, needed to get to the 19 upper deck to adjust the regulator for his torch, and began 20 climbing a ladder affixed to the tank wall. 21 undisputed that, immediately prior to his fall, he stepped 22 off the ladder in order to let a co-worker descend. 23 The vessel was in a graving dock, a Medina, who It is Medina s estate, wife, and child (all represented by 24 his wife)2 brought suit in the United States District Court 25 for the Eastern District of New York (Block, J.) against the 26 general contractor overseeing repairs to the barge, GMD 2 Because Medina s estate and his child are represented by his wife, the parties refer to plaintiff in the singular. For ease of reference, this opinion does the same. 3 1 Shipyard Corp. ( GMD ).3 2 entered judgment on behalf of GMD on all claims. After a bench trial, the court 3 4 5 BACKGROUND The owner of Tank Barge ATC 23 contracted with 6 defendant GMD to refit it so it could transport a particular 7 kind of oil. 8 time welder. 9 GMD s subcontractor employed Medina as a part On the morning of the accident, Medina was welding 10 coils and refit pipes on the floor of the No. 2 starboard 11 tank. 12 each approximately twenty feet long. 13 the base of the tank to a small platform, the second from 14 the platform to the deck. 15 reinforced by angle irons, lateral projecting fins spaced 16 at regular intervals of two-and-a-half feet from top to 17 bottom. To get to the deck, Medina had to climb two ladders, The first runs from The wall of the tank is Each angle iron protrudes between five to eight 3 Plaintiff also sued the owner of the ship, Allied Transportation LLC, and another company, FCE Industries, Ltd. Plaintiff settled with Allied Transportation, and FCE Industries never answered the complaint. According to GMD and Allied Transportation, FCE Industries is no longer in existence. See Vasquez v. FCE Indus. Ltd., No. 07 cv 1121(FB), 2008 WL 4224396, at *1 n.1 (E.D.N.Y. Sept. 10, 2008). 4 1 inches from the wall. 2 07 cv 1121(FB), 2008 WL 4224396, at *1 (E.D.N.Y. Sept. 10, 3 2008). 4 See Vasquez v. FCE Indus. Ltd., No. Medina began ascending the first ladder while a co- 5 worker, Mario Concepcion, was descending from the platform. 6 Medina and Concepcion met approximately six to eight feet 7 from the bottom of the tank. 8 stepped off the ladder onto an angle iron. 9 To let Concepcion pass, Medina The precise sequence of subsequent events is disputed. 10 At a bench trial, the district court found the facts to be 11 as follows: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Rather than return to the tank floor and wait for Concepcion to finish descending, Medina moved laterally off the ladder and stepped onto one of the angle irons that provided structural support to the tank wall. Then, instead of waiting for Concepcion to pass him and then returning to the ladder, Medina began climbing up the tank wall itself by means of the angle irons. Moments after passing Concepcion, Medina lost his grip and fell from the angle irons to the floor of the tank [and died]. 2008 WL 4224396, at *2. Plaintiff does not dispute that Medina moved off the 28 ladder, but maintains that there was insufficient evidence 29 for the court to conclude that Medina actually began 5 1 2 climbing up the angle irons. On the basis of its factual finding, the district court 3 dismissed all plaintiff s causes of action, holding, inter 4 alia, that Medina s injury was not caused by a dangerous 5 condition on the premises (Labor Law § 200); that GMD was 6 not required to provide additional safety devices under New 7 York s Scaffold Law (Labor Law § 240(1)); and that the New 8 York Industrial Code provision regarding hazardous 9 openings (Labor Law § 241(6)) was inapplicable. 10 11 12 DISCUSSION In reviewing a judgment entered after a bench trial, we 13 are to give due regard to the trial court s opportunity to 14 judge the witnesses credibility, and we must not . . . 15 set aside findings of fact unless [they are] clearly 16 erroneous. 17 Bessemer City, 470 U.S. 564, 573-74 (1985). 18 standard, factual findings by the district court will not be 19 upset unless we are left with the definite and firm 20 conviction that a mistake has been committed. 21 Providence College, 115 F.3d 136, 140 (2d Cir. 1997) 22 (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 Fed. R. Civ. P. 52(a)(6); see also Anderson v. 6 Under this FDIC v. 1 (1948)). 2 evidence, the factfinder s choice between them cannot be 3 clearly erroneous. 4 conclusions of law, and the application of the law to the 5 facts, de novo. 6 Inc., 445 F.3d 610, 617-18, 623 (2d Cir. 2006). Where there are two permissible views of the 7 8 9 Anderson, 470 U.S. at 574. We review See, e.g., Henry v. Champlain Enters., I Although the parties do not contest our jurisdiction, we are obliged to ascertain it independently. See, e.g., 10 Joseph v. Leavitt, 465 F.3d 87, 89 (2d Cir. 2006) ( [W]e 11 have an independent obligation to consider the presence or 12 absence of subject matter jurisdiction sua sponte. ). 13 The Constitution extends federal judicial power to all 14 Cases of admiralty and maritime Jurisdiction. 15 art. III, § 2. 16 jurisdiction at 28 U.S.C. § 1333(1), which gives federal 17 district courts original jurisdiction . . . of . . . [a]ny 18 civil case of admiralty or maritime jurisdiction . . . . 19 Id.; see also Jerome B. Grubart, Inc. v. Great Lakes Dredge 20 & Dock Co., 513 U.S. 527, 531-32 (1995); LeBlanc v. 21 Cleveland, 198 F.3d 353, 356 (2d Cir. 1999). 22 purpose of federal admiralty jurisdiction is to protect[ ] U.S. Const. Congress has codified admiralty and maritime 7 The primary 1 commercial shipping with uniform rules of conduct. 2 LeBlanc, 198 F.3d at 356 (quoting Sisson v. Ruby, 497 U.S. 3 358, 362 (1990) (internal quotations omitted)). 4 Historically, admiralty jurisdiction over torts 5 depended solely upon the locality of the wrong-- [i]f the 6 wrong occurred on navigable waters, the action [was] within 7 admiralty jurisdiction; if the wrong occurred on land, it 8 [was] not. 9 Cleveland, 409 U.S. 249, 253 (1972). Executive Jet Aviation, Inc. v. City of In Executive Jet, the 10 Supreme Court modified this purely mechanical application 11 of the locality test, and held that the wrong [must also] 12 bear a significant relationship to traditional maritime 13 activity --the nexus test. 14 Id. at 261, 268. Thus, we now apply a two-part test for determining when 15 a tort action falls within the federal courts admiralty 16 jurisdiction. 17 or over navigable waters. 18 Second, the activity giving rise to the incident must have 19 had a substantial relationship to traditional maritime 20 activity, such that the incident had a potentially 21 disruptive influence on maritime commerce. 22 First, the alleged tort must have occurred on Grubart, 513 U.S. at 534. A. Navigable Waters 8 Id. 1 Medina s fall occurred while the ATC 23 was being 2 repaired in a graving dock. 3 permanent structure on land with gates that allow[s] vessels 4 to enter and that then can be closed to drain out the water. 5 In other words it is a dry drydock. 6 Inc. v. Dalton, 131 F.3d 776, 777 (9th Cir. 1997); see also 7 J.M.L. Trading Corp. v. Marine Salvage Corp., 501 F. Supp. 8 323, 326 n.2 (E.D.N.Y. 1980) ( A graving dock looks like a 9 huge, concrete bathtub sunk into the ground . . . . When 10 repairs are completed, workers flood the dock until the 11 water reaches the same level as the water outside the gate. 12 It is opened and the ship leaves. ). 13 of dry docks: (1) A floating dry dock, as its name makes 14 clear, floats on the water, the vessel resting on the bottom 15 of the dry dock after the water has been removed. (2) A 16 graven dry dock is dug into the land. The vessel floats in 17 but rests on land once the water has been pumped out. (3) 18 Finally there is the marine railway, on which the vessel is 19 drawn out of the water, instead of the water being drawn 20 away from the vessel. 21 346 U.S. 366, 367 (1953) (Burton, J., concurring). 22 A graving dock is a San Francisco Drydock, There are three types Avondale Marine Ways v. Henderson, The water in a graving (or graven) dock is temporarily 9 1 removed so that a ship under repair comes to rest on dry 2 land, but the temporary absence of water does not defeat 3 federal maritime jurisdiction. 4 191 U.S. 17, 33-34 (1903), the Supreme Court held that a 5 vessel in a graven dock remains in navigable waters for 6 purposes of admiralty jurisdiction, even when the water is 7 removed: as all serious repairs upon the hulls of vessels 8 are made in drydock, the proposition that such repairs are 9 made on land would practically deprive the admiralty courts In The Robert W. Parsons, 10 of their largest and most important jurisdiction in 11 connection with repairs. 12 proposition, and it is believed that none such exist. No authorities are cited for this Id. 13 The Supreme Court reaffirmed the point in Simmons v. 14 The Steamship Jefferson, in which it compared a ship in a 15 graven dock to one at a pier when the water temporarily 16 recedes at low tide: 17 18 19 20 21 22 23 24 25 26 27 28 In reason, we think it cannot be held that a ship or vessel employed in navigation and commerce is any the less a maritime subject within the admiralty jurisdiction when, for the purpose of making necessary repairs to fit her for continuance in navigation, she is placed in a dry dock and the water removed from about her, than would be such a vessel if fastened to a wharf in a dry harbor, where, by the natural recession of the water by the ebbing of the tide, she for 10 1 2 3 215 U.S. 130, 142 (1909). 4 Inc., 795 F.2d 756 (9th Cir. 1986) (admiralty jurisdiction 5 extends to shallow, non-navigable waters that are within the 6 ebb and flow of the tide); Hassinger v. Tideland Elec. 7 Membership Corp., 781 F.2d 1022, 1026 (4th Cir. 1986) 8 ( Admiralty jurisdiction in America therefore extends to all 9 areas within the ebb and flow of the tide, regardless of 10 whether those areas are actually covered by water at the 11 time of the alleged event. ); but see McElheney v. Workers 12 Comp. Appeal Bd., 940 A.2d 351, 359, 596 Pa. 48, 60 (Pa. 13 2008). 14 a time might be upon dry land. See also In re Paradise Holdings, We have no reason to question the currency of The 15 Robert W. Parsons and The Steampship Jefferson. 16 may be old, but they are old precedent, and we are bound to 17 follow them. 18 348 49 (11th Cir. 1994). 19 Eleventh Circuit found no authority that would compel this 20 court to question the[ir] continued vitality, and concluded 21 that a ship in a dry dock is in or on navigable waters for 22 purposes of admiralty jurisdiction. 23 Circuit concluded: Supreme Court precedent, common practice, These cases Sea Vessel, Inc. v. Reyes, 23 F.3d 345, In Sea Vessel, for instance, the 11 Id. As the Eleventh 1 and logic all compel the conclusion that a ship in a 2 graving or graven dock is still in navigable waters 3 for purposes of federal admiralty jurisdiction even though 4 water may have been temporarily removed. 5 B. Nexus to Traditional Maritime Activity 6 The next question is whether the refitting of a ship in 7 dry dock has a substantial relationship to traditional 8 maritime activity. 9 first, must assess the general features of the type of In answering this question, [a] court, 10 incident involved to determine whether the incident has a 11 potentially disruptive impact on maritime commerce. 12 a court must determine whether the general character of the 13 activity giving rise to the incident shows a substantial 14 relationship to traditional maritime activity. 15 513 U.S. at 534 (internal quotations and citations omitted); 16 see also Sisson, 497 U.S. at 364. Second, Grubart, 17 The first assessment looks to potential effects, not 18 to the particular facts of the incident, . . . whether the 19 general features of the incident [a]re likely to disrupt 20 commercial activity. 21 quotations and citations omitted.) 22 description of the incident at an intermediate level of Grubart, 513 U.S. at 538 (internal 12 We consider a 1 possible generality. 2 question that this kind of accident -the death of persons 3 repairing and refitting a vessel -has a potentially 4 disruptive effect on maritime commerce. 5 Id. In this case, there is little The second assessment looks to whether the general 6 character of the activity giving rise to the incident shows 7 a substantial relationship to traditional maritime 8 activity. 9 features of an activity are ascertained by the general Grubart, 513 U.S. at 539. The general 10 conduct from which the incident arose. 11 364. 12 Sisson, for example, suit arose from a fire aboard a 13 pleasure yacht while it was docked at a marina. 14 general conduct was held to be the storage and 15 maintenance of vessels at marinas: We need not ascertain 16 the precise cause of the fire to determine what activity 17 [the boat owner] was engaged in, rather, the relevant 18 activity was the storage and maintenance of a vessel at a 19 marina on navigable waters. 20 that level of generality, the general conduct of storing and 21 maintaining vessels was clearly a common, if not 22 indispensable, maritime activity. Sisson, 497 U.S. at General conduct is not particular conduct. In The Sisson, 497 U.S. at 365. 13 At Sisson, 497 U.S. at 367. 1 As in Sisson, the general conduct in this case is the 2 repair and maintenance of a vessel, just as obviously an 3 indispensable and traditional maritime activity. 4 Therefore, we conclude that the activity giving rise to 5 the incident had a substantial relationship to traditional 6 maritime activity such that the incident had a potentially 7 disruptive influence on maritime commerce. 8 court had maritime jurisdiction. The district 9 II 10 On appeal, plaintiff challenges four aspects of the 11 district court s judgment. 12 A. Fact-Finding. Plaintiff challenges the finding that 13 the accident occurred when Medina began climbing up the 14 angle irons. 15 Both the eye-witnesses gave trial testimony that 16 conflicted with their prior statements. 17 had earlier said that Medina fell when he began climbing the 18 angle irons; but at trial, Fernandez said that Medina fell 19 from the angle irons, but that Medina had never attempted to 20 climb them. 21 ladder while Medina was climbing up, signed an earlier 22 statement to the effect that Medina fell from the angle Martin Fernandez Mario Concepcion, who was climbing down the 14 1 irons; but at trial, he said he was unsure exactly how 2 Medina fell or where Medina fell from. 3 that these witnesses prior statements were hearsay, only 4 admissible for impeachment, and the court improperly relied 5 on them for the truth of the matter asserted. 6 Murdock, 243 F.3d 681, 684 (2d Cir. 2001). 7 Plaintiff argues See Santos v. But even excluding the earlier statements given by 8 Fernandez and Concepcion, the evidence was confused as to 9 exactly where Medina was standing, how he fell, or whether 10 he in fact was attempting to climb up the angle irons. 11 light of this uncertainty, we disregard the district court s 12 finding that Medina began climbing up the tank wall right 13 before he fell and instead rely on the fully supported, 14 implicit finding that Medina fell after he stepped off the 15 ladder on to an angle iron, whether or not he was ascending 16 the tank wall by means of the angle irons. 17 B. Labor Law § 200 (common law negligence). In The common 18 law negligence claim, under Labor Law § 200, was dismissed 19 on grounds that no GMD employee directly supervised or 20 controlled the manner of Medina s work, and that Medina s 21 injury was not caused by a dangerous condition on the 15 1 2 premises. 4 Section 200 requires owners and general contractors on 3 construction sites (including barges and docks 5 ) to provide 4 reasonable and adequate protection . . . to the persons 5 employed therein or lawfully frequenting such places. 6 Lab. Law § 200(1). 7 secure the safety of his servant against a condition, or 8 even defects, risks or dangers that may be readily observed 9 by the reasonable use of the senses, having in view the age, N.Y. But it does not require an owner to 4 Since Medina was injured in navigable waters, maritime law governs his claims. See Becker v. Poling Transp. Corp., 356 F.3d 381, 388 (2d Cir. 2004). But, federal maritime law incorporates common law negligence principles generally, and New York law in particular. Id. (citing Int l Ore & Fertilizer Corp. v. SGS Control Servs., Inc., 38 F.3d 1279, 1284 (2d Cir. 1994)). With respect to maritime torts, a State may modify or supplement the maritime law by creating liability which a court of admiralty will recognize and enforce when the state action is not hostile to the characteristic features of the maritime law or inconsistent with federal legislation. Just v. Chambers, 312 U.S. 383, 388 (1941). Here, neither party contends that the New York statutes in question are hostile to the characteristic features of the maritime law, or inconsistent with federal legislation. Hence we assume, without deciding, that the relevant New York Labor Law provisions apply. 5 Barges and docks may be deemed construction sites for the purposes of Labor Law § 200. See O Hara v. Weeks Marine, Inc., 294 F.3d 55, 68 n.8 (2d Cir. 2002) (citing Cammon v. City of New York, 95 N.Y.2d 583, 590, 744 N.E.2d 114, 119 (2000) and Rigopoulos v. State, 236 A.D.2d 459, 460, 653 N.Y.S.2d 667, 699 (2d Dep t 1997)). 16 1 intelligence and experience of the servant. 2 Motor Co., 13 N.Y.2d 104, 110, 205 N.E.2d 163 (1963) 3 (internal quotations omitted); see also Russin v. Louis N. 4 Picciano & Son, 54 N.Y.2d 311, 316-17, 429 N.E.2d 805, 807 5 (1981) ( Section 200 of the Labor Law merely codified the 6 common-law duty imposed upon an owner or general contractor 7 to provide construction site workmen with a safe place to 8 work. ). 9 § 200 if they supervised or controlled the work performed Gasper v. Ford Owners and general contractors may be liable under 10 or had actual or constructive notice of the unsafe condition 11 which precipitated plaintiff s injury. 12 Dev. Corp., 274 A.D.2d 917, 921, 711 N.Y.S.2d 241, 245 (3d 13 Dep t 2000 ) . 14 Bailey v. Irish The record evidence supports the district court s 15 rulings [i] that GMD did not supervise or control the way 16 Medina climbed the ladder, and [ii] that the ladder was not 17 in itself a dangerous condition. 18 4224396, at *4 6. 19 Vasquez, 2008 WL Under the supervision or control wording of § 200, 20 liability attaches only where the general contractor 21 controlled the manner in which the plaintiff performed his 22 or her work, i.e., how the injury-producing work was 17 1 performed. 2 306, 836 N.Y.S.2d 86, 89 (1st Dep t 2007) (emphasis 3 omitted). 4 supervised Medina s ascent up the ladder. 6 5 the ladder was a dangerous condition, plaintiff failed to 6 show that the ladder was defective. 7 Dolner Constr. Co., No. 11010/06, 2008 WL 787262 8 (N.Y.Sup.Ct. Feb. 20, 2008) ( In this case the ladder was 9 clearly visible and by the reasonable use of one s senses 10 was an obvious condition. Moreover, . . . such ladder was 11 [not] defective in any way. 12 dangerous condition as a matter of law. (citation 13 omitted)). 14 Medina left the ladder for the dangerous footing of the 15 angle irons. 16 17 Hughes v. Tishman Constr. Corp., 40 A.D.3d 305, There is no evidence that GMD (or other entities) As to whether See Mollano v. RC Thus, the ladder was not a In any event, the accident happened only after C. Scaffold law. Plaintiff challenges the dismissal of her claim under New York s Scaffold Law, Labor Law § 6 Plaintiff s contention that GMD regularly inspected the tank to confirm whether the ladders were serviceable is beside the point. An inspection would not reveal that the ladder was being used, or misused, as it was by decedent. And, even if Martin Fernandez testified that it was common practice for the workers in the tank to stand on the angle irons, plaintiff concedes that GMD s safety director never observed multiple men traveling up and down the ladders. Appellants Br. at 10. 18 1 240(1), arguing that Medina was never trained on how to use 2 the ladder, or that he should have been provided with 3 alternative safety equipment (such as a harness). 4 New York s Scaffold Law, provides absolute liability 5 to owners and general contractors for failing to provide 6 adequate safety equipment in the face of elevation risks: 7 8 9 10 11 12 13 14 15 16 17 18 19 N.Y. Labor Law § 240(1) (McKinney 2009). 20 240(1) is limited to accidents related to the inherent 21 effects of gravity. 22 N.Y.2d 509, 513, 583 N.E.2d 932, 934 (1991). 23 liability is absolute, the plaintiff has the burden of 24 showing causation. 25 of N.Y. City, Inc., 1 N.Y.3d 280, 287-89, 803 N.E.2d 757, 26 760-63 (2003) (stating that the phrase strict (or 27 absolute) liability in the Labor Law § 240(1) context is 28 different from the use of the term elsewhere and explaining All contractors and owners and their agents, . . . in the . . . repairing, altering, painting, cleaning or pointing of a building or structure shall furnish . . . 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. Liability under § Rocovich v. Consol. Edison Co., 78 Although See Blake v. Neighborhood Hous. Servs. 19 1 that section 240(1) requires proof of causation); Artoglou 2 v. Gene Scappy Realty Corp., 57 A.D.3d 460, 461, 869 3 N.Y.S.2d 172, 175 (2d Dep t 2008) ( the defect, or the 4 failure to secure the ladder, was a substantial factor in 5 causing the plaintiff s injuries. ). 6 We agree with the district court that, even assuming 7 that the defendant had failed to provide an adequate safety 8 device, plaintiff has not carried her burden of showing that 9 Medina s injury was caused by any such inadequacy. Medina 10 himself deliberately stepped off the ladder onto the angle 11 irons, thus abandoning the device that was provided for his 12 safety. 13 159, 760 N.Y.S.2d 39, 42 (1st Dep t 2003) ( That the ladder 14 was inadequately secured was due to plaintiff s improper use 15 of it, which would not give rise to a Labor Law 16 violation. ). 17 See Meade v. Rock-McGraw, Inc., 307 A.D.2d 156, D. Labor Law § 241(6). Finally , plaintiff challenges 18 the dismissal of her claim under Labor Law § 241(6). 19 state a claim under Labor Law § 241(6), a plaintiff must 20 allege a violation of the New York Industrial Code. 21 Ross v. Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d 494, 22 501-02, 618 N.E.2d 82 (1993); Misicki v. Caradonna, 12 20 To See 1 N.Y.3d 511, -N.E.2d - (2009). 2 moreover, must be grounded upon a breach of a specific, 3 positive command, rather than a reiteration of common-law 4 standards. 5 a violation of 12 N.Y.C.R.R. § 23-1.7(b)(1), which addresses 6 hazardous opening[s] into which a person may step or fall. 7 The regulation requires that such hazardous openings be 8 guarded by a substantial cover fastened in place or by a 9 safety railing . . . . The Code violation, Id., 81 N.Y.2d at 504. Here, plaintiff alleged 12 N.Y.C.R.R. § 23-1.7(b)(1)(i). 10 If workers are required to work near the edge of such an 11 opening, they must be protected by life nets, safety belts, 12 or planking. 13 12 N.Y.C.R.R. § 23-1.7(b)(1)(iii). We agree with the district court that 12 N.Y.C.R.R. § 14 23-1.7(b)(1) is inapplicable to the facts of this case. 15 2008 WL 4224396, at *10. 16 that § 23-1.7 does not apply to falls from ladders or 17 staircases. 18 322, 323, 831 N.Y.S.2d 413, 414 (1st Dep t 2007) ( a 19 staircase is not considered a hazardous opening ); Riccio 20 v. NHT Owners, LLC, No. 32163/04, 2006 WL 2689702, at *1, *8 21 (Sup. Ct. Kings County Aug. 23, 2006) (holding that where 22 plaintiff fell from near the top of an A-frame, fiberglass See Ample New York authority holds See, e.g., Smith v. McClier Corp., 38 A.D.3d 21 1 ladder in an elevator pit, accident did not involve a fall 2 into a hazardous opening ). 3 4 5 6 CONCLUSION For the foregoing reasons, the judgment of the district court is affirmed. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

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