Judith Nostrom v. A.W. Chesterton Company
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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
----------------------------------------------------------------No. 187
Judith Nostrom, &c.,
Appellant,
v.
A.W. Chesterton Company, et al.,
Defendants,
Central Hudson Gas & Electric
Corporation, et al.,
Respondents.
Alani Golanski, for appellant.
William G. Ballaine, for respondent Sequoia Ventures,
Inc.
Guy Miller Struve, for respondent Orange & Rockland
Utilities, Inc.
Joseph B. Koczko, for respondent Central Hudson Gas &
Electric Corp.
GRAFFEO, J.:
The issue before us is whether vicarious liability
under Labor Law § 241 (6) may be predicated solely on a violation
of regulations contained in part 12 of the Industrial Code.
conclude that it may not.
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We
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No. 187
During the 1970s and 1980s, decedent Donald Nostrom
worked as a boilermaker for subcontractors on construction
projects at various energy facilities, including those owned by
defendants Orange & Rockland Utilities, Inc. (O&R) and Central
Hudson Gas & Electric Corp.
According to Nostrom, defendant
Sequoia Ventures, Inc., f/k/a Bechtel Corporation, served as the
general contractor for two of the projects.
While working at
these power plants, Nostrom was allegedly exposed to asbestos
through airborne dust and contact with asbestos-containing
materials.
He subsequently contracted mesothelioma.
Nostrom and his wife, suing derivatively, commenced
this action against more than 60 defendants, including O&R,
Central Hudson and Sequoia.1
As relevant here, Nostrom asserted
a Labor Law § 200 claim against Central Hudson and a violation of
Labor Law § 241 (6) against each of the three defendants involved
in this appeal.
The section 241 (6) claim was premised on
violations of Industrial Code (12 NYCRR) part 12 regulations,
which require the prevention of air contamination (12 NYCRR 121.4 [b] [3], [4]) and the removal of dangerous air contaminants
(12 NYCRR 12-1.6 [a]).
After discovery, defendants separately
moved for summary judgment dismissing the complaint.2
1
The other defendants include asbestos manufacturers and
distributors. The claims against them are not before us.
2
Donald Nostrom died during the pendency of this
litigation. His wife, Judith Nostrom, pursues this action as the
personal representative of his estate.
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No. 187
Supreme Court granted the motions and dismissed the
complaint insofar as asserted against defendants.
Nostrom
appealed the dismissal of the Labor Law § 241 (6) cause of action
and the Appellate Division affirmed, reasoning that a violation
of regulations from part 12 of the Industrial Code cannot sustain
a section 241 (6) claim (59 AD3d 159 [1st Dept 2009]).
Alternatively, the Appellate Division concluded that the two
regulations invoked by Nostrom were not "sufficiently specific to
support a section 241 (6) claim for asbestos-related injury" (id.
at 160).
We granted Nostrom leave to appeal (13 NY3d 880
[2009]).3
Because defendants did not direct or control decedent's
work, they can be liable only if Labor Law § 241 (6) applies,
imposing vicarious liability on owners and contractors for the
conduct of others.
Section 241 (6) provides:
"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. The
commissioner may make rules to carry into
effect the provisions of this subdivision,
and the owners and contractors and their
agents for such work, except owners of one
and two-family dwellings who contract for but
3
We dismissed the motion for leave to appeal insofar as it
sought leave to appeal against Consolidated Edison Company of New
York, Inc. upon the basis that as to that party, the order did
not finally determine the action within the meaning of the
Constitution.
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No. 187
do not direct or control the work, shall
comply therewith."
The second sentence of this provision, requiring owners and
contractors to comply with the Commissioner of Labor's rules,
creates a nondelegable duty "where the regulation in question
contains a specific, positive command" (Morris v Pavarini
Constr., 9 NY3d 47, 50 [2007] [internal quotation marks and
citation omitted]).
At issue is whether the section 241 (6)
claim in this case may be based on the violation of Industrial
Code part 12 regulations pertaining to the control of air
contaminants in the workplace.
Nostrom argues that sufficiently specific regulations
are set forth in part 12 of the Industrial Code and, like those
found in part 23, these may be invoked to impose vicarious
liability under Labor Law § 241 (6).
Consequently, she asserts
that O&R and Central Hudson, as owners, and Sequoia, as a general
contractor, may be held liable for the alleged failures of
various subcontractors to comply with sections 12-1.4 (b) and 121.6 (a) of the Code.
Defendants respond that the Appellate
Division correctly held that the relevant language and history
underlying these regulations demonstrate that part 12 cannot
support vicarious liability except to the extent that part 12
regulations are specifically incorporated into part 23.
In matters of statutory and regulatory interpretation,
"legislative intent is the great and controlling principle, and
the proper judicial function is to discern and apply the will of
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No. 187
the enactors" (Matter of ATM One v Landaverde, 2 NY3d 472, 477
[2004] [internal quotation marks and citation omitted]).
As we
have noted, the text of a provision is the clearest indicator of
the enactors' intent, "and courts should construe unambiguous
language to give effect to its plain meaning" (Matter of
DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660 [2006]).
Additionally, inquiry should be made into "the spirit and purpose
of the legislation, which requires examination of the statutory
context of the provision as well as its legislative history"
(Landaverde, 2 NY3d at 477 [internal quotation marks and citation
omitted]).
Part 23 of the Industrial Code governs the protection
of workers in construction, demolition and excavation operations.
Its "Application" provision expressly states that the rules in
part 23 apply to "owners, contractors and their agents obligated
by the Labor Law to provide such persons with safe working
conditions and safe places to work" (12 NYCRR 23-1.3).
Hence, it
is clear that part 23 was promulgated pursuant to the authority
granted by Labor Law § 241 (6) and that owners and contractors
may be vicariously liable based on violations of part 23
regulations.4
In contrast, the "Application" section of part 12
4
Every Labor Law § 241 (6) case resolved by this Court in
recent history has involved a part 23 regulation (see e.g.
Misicki v Caradonna, 12 NY3d 511 [2009] [12 NYCRR 23-9.2 (a)];
Morris v Pavarini Constr., 9 NY3d 47 [2007] [12 NYCRR 23-2.2
(a)]; Nagel v D & R Realty Corp., 99 NY2d 98 [2002] [12 NYCRR 231.7 (d)]; Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343 [1998]
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No. 187
does not specify that its rules apply to owners, contractors and
their agents.
The absence of such wording suggests that part 12
was not created to give effect to the provisions of section 241
(6) and indicates an intent not to impose vicarious liability in
connection with part 12 regulations.
Furthermore, the language of 12 NYCRR 23-1.7 (g)
confirms that part 12 regulations, by themselves, were not
intended to serve as a predicate for liability under Labor Law §
241 (6).
Section 23-1.7 (g) makes any "unventilated confined
area" where dangerous air contaminants may be present subject to
the provisions of part 12.
By incorporating the requirements of
part 12 into this narrow subset of work sites governed by part 23
-- unventilated confined areas -- it is evident that the intent
was to impose a nondelegable duty on owners and contractors in
these limited circumstances.
Consequently, a plaintiff may bring
a section 241 (6) claim based on a violation of a part 12 rule
only where the injury occurred in an unventilated confined area,
thereby triggering section 23-1.7 (g)'s "pass-through" provision
(see Rivera v Ambassador Fuel & Oil Burner Corp., 45 AD3d 275
[1st Dept 2007]).5
Accepting Nostrom's position that vicarious
[12 NYCRR 23-1.7 (d)]; Ross v Curtis-Palmer Hydro-Elec. Co., 81
NY2d 494 [1993] [12 NYCRR 23-1.25 (d)]; Long v Forest-Fehlhaber,
55 NY2d 154 [1982], rearg denied 56 NY2d 805 [1982] [12 NYCRR 231.30]).
5
Nostrom does not rely on 12 NYCRR 23-1.7 (g), presumably
because decedent was not working in unventilated confined areas
when he was exposed to asbestos.
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No. 187
liability may be grounded on a part 12 violation regardless of
the location of the exposure would render section 23-1.7 (g)
superfluous.
And a construction that "renders one part
meaningless should be avoided" (Rocovich v Consolidated Edison
Co., 78 NY2d 509, 515 [1991]).
Our conclusion that part 12 does not impose liability
on owners and contractors under Labor Law § 241 (6), except
insofar as it is expressly incorporated into part 23, is
consistent with the regulatory history underlying the two parts.
Industrial Code Bulletin No. 23, part 23's predecessor, was
adopted by the State Industrial Commission in 1920.
In 1941, the
Board of Standards and Appeals replaced the original regulations
with a new part 23, specifically referencing the rule-making
authority vested in the Board by Labor Law § 241.
The Board
again invoked section 241 when it revised part 23 in 1963.
Although the Board did not refer to section 241 when it completed
its most recent substantive changes to part 23 in 1972, it is
clear that part 23 continues to implement the authority granted
by the Legislature under section 241 (6) because it explicitly
applies to owners, contractors and their agents (see 12 NYCRR 231.3).
On the other hand, although part 12's predecessor was
redesignated as part 12 in 1954 and was thereafter substantially
revised in 1956, 1961 and 1971, the Board did not cite section
241 as a basis for these enactments.
In short, the language and history of the relevant
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No. 187
provisions establish that part 12 regulations do not provide a
basis for liability under Labor Law § 241 (6) except to the
extent that particular regulations are specifically incorporated
into part 23.
As a result, the Appellate Division correctly
affirmed the dismissal of Nostrom's section 241 (6) claim, which
was predicated solely on alleged violations of 12 NYCRR 12-1.4
(b) and 12 NYCRR 12-1.6 (a).
We therefore need not reach the
Appellate Division's alternative holding that the regulations in
question are not specific enough to permit recovery under section
241 (6) for an asbestos-related injury.
Accordingly, the order of the Appellate Division,
insofar as appealed from, should be affirmed, with costs.
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Order, insofar as appealed from, affirmed, with costs. Opinion
by Judge Graffeo. Judges Ciparick, Smith, Pigott and Jones
concur. Chief Judge Lippman and Judge Read took no part.
Decided November 18, 2010
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