Krause v Central N.Y. Oil & Gas Co., LLC

[*1] Krause v Central N.Y. Oil & Gas Co., LLC 2007 NY Slip Op 51319(U) [16 Misc 3d 1106(A)] Decided on June 29, 2007 Supreme Court, Broome County Lebous, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through July 23, 2007; it will not be published in the printed Official Reports.

Decided on June 29, 2007
Supreme Court, Broome County

Charles R. T. Krause and Kimberly Krause, Plaintiffs,

against

Central New York Oil and Gas Company, LLC, Pipeline Power Partners, L.P., eCorp New York, LLC, Tennessee Gas Pipeline Company, SNC-Lavalin America, Inc., SNC-Lavalin Group, Inc., Wilbert E. Widell and Mildred E. Widell, Defendants.



2004-0892



COUNSEL FOR CHARLES R.T. KRAUSE

and KIMBERLY KRAUSE:

GROSS, SHUMAN, BRIZDLE & GILFILLAN, P.C.

BY: HARRY J. FORREST, ESQ.,

OF COUNSEL

OFFICE & POST OFFICE ADDRESS:

465 MAIN STREET, SUITE 600

BUFFALO, NY 14203

COUNSEL FOR CENTRAL NEW YORK

OIL AND GAS COMPANY, LLC,

PIPELINE POWER PARTNERS, L.P.

eCORP NEW YORK, LLC

TENNESSEE GAS PIPELINE COMPANY:

COUGHLIN & GERHART, LLP

BY:KEITH A. O'HARA, ESQ.,

OF COUNSEL

OFFICE & POST OFFICE ADDRESS:

20 HAWLEY STREET

P.O. BOX 2039

BINGHAMTON, NY 13901

COUNSEL FOR GREGORY & COOK

CONSTRUCTION, INC.:

CARTAFALSA, SLATTERY, TURPIN &

METAXAS

BY:JILL E. O'SULLIVAN, ESQ.,

OF COUNSEL

OFFICE & POST OFFICE ADDRESS:

ONE BLUE HILL PLAZA, SUITE 1600

P.O. BOX 1628

PEARL RIVER, NY 10965-8628

Ferris D. Lebous, J.

Defendants Central New York Oil and Gas Company, LLC, Pipeline Power Partners, L.P., Ecorp New York, LLC, and Tennessee Gas Pipeline Company (hereinafter collectively "defendants") move for summary judgment dismissing the complaint alleging violations of [*2]Labor Law 200, 240 (1), and 241 (6), as well as dismissing any cross-claims.[FN1] Plaintiffs Charles R.T. Krause and Kimberly Krause oppose defendants' motion.

Background

In June 2001, defendant/third-party defendant Gregory & Cook Construction, Inc. (hereinafter "Gregory") entered into a contract with defendant Central New York Oil & Gas Company, LLC (hereinafter "CNY") for a pipeline construction project known as Stage Coach Storage Field (hereinafter "Project") located in Owego, New York. Plaintiff [FN2] Charles R.T. Krause was employed as a general laborer by Gregory on said Project.

On November 2, 2001, plaintiff was working on a 50 foot section of pipeline that was about 3½ feet above the ground cradled in a "crib" (Def Ex H, p 144). In his deposition, plaintiff indicated that he was instructed by his supervisor Anthony Cox, a Gregory employee, to hold a piece of wood called a "skid" against the open end of the pipeline to suppress forced air. Plaintiff further recalled that another Gregory co-worker, later identified as Patty Parsons, was located approximately half a mile away operating the compressor and communicating via radio with plaintiff and Mr. Cox.[FN3] Plaintiff stated that he was standing on the ground to the right side of the pipeline with his left arm on the pipe and with his right arm "[t]aking and putting a skid to hold pressure back. And that was the last thing I remember before the line, you can hear it, the line, guggling" (Defendants' Ex H [Krause EBT], p 77). Plaintiff was injured when the pipe began to swing wildly, striking him and throwing him approximately 30 to 40 feet into the air (Def Ex H, 98).

In support of their respective positions, the parties have submitted numerous attorney affidavits/affirmations,[FN4] prior pleadings, discovery, and correspondence, as well as the transcripts from the depositions of Thomas Hardwick, Gregory superintendent; Gary Pfrehm, defendants' project manager; Randy Stalsby, chief inspector; Jeffrey Rotella, President of Rotella Corporation; and Ernest Mayo, a laborer with Rotella Corporation. Additionally, plaintiff relies [*3]heavily on an affidavit from an expert, Richard R. Pikul, PE, EngD.

The court initially heard oral arguments on this motion on November 15, 2006, but the matter was held in abeyance at the parties request to allow additional time for the completion of discovery. The court heard supplemental oral arguments from counsel on June 22, 2007.

Discussion

I.Labor Law 200 and common-law negligence

Labor Law 200 is "[a] codification of the common-law duty of an owner or contractor to exercise reasonable care to provide workers with a safe place to work [citations omitted]" (Miller v Wilmorite, Inc., 231 AD2d 843, 843 [1996]). However, it is well-settled that "[g]eneral supervisory authority at the work site for the purpose of overseeing the progress of the work and inspecting the work product has been found insufficient to establish a cause of action under Labor Law § 200 [citations omitted]" (Riccio v Shaker Pine, Inc., 262 AD2d 746, 748 [1999], lv denied 93 NY2d 1042 [1999]). Additionally, the fact of "[m]ere retention of contractual inspection privileges or a general right to supervise does not amount to control sufficient to impose liability, and that where the injury is due to the method of work, Labor Law § 200 and common law negligence claims must be dismissed in the absence of proof of the owner's actual control, notwithstanding the existence of questions of fact regarding an owner's contractual right of control [citations omitted])" (Brown v New York City Economic Dev. Corp., 234 AD2d 33 [1996]; emphases added).

Defendants contend that there is no proof that any defendant supervised, directed and controlled plaintiff's work other than Gregory employees. Defendants rely primarily on plaintiff's own deposition testimony that he typically received daily instructions each morning from his Gregory supervisor, Anthony Cox, and on occasion from one of three other Gregory employees (Defs Ex H, pp 56-57 & 87). Additionally, Gary Pfrehm, defendants' project manager, stated that CNY did not exercise any actual supervision or control over any of the contractors (Defs Ex H, p 40). The court finds that plaintiff's deposition testimony standing alone meets defendants' prima facie burden and shifts the burden to plaintiff to come forward with proof sufficient to raise a question of fact on the issue of supervision and control.

In opposition, plaintiff submits Gregory daily time sheets and records in an attempt to raise the requisite questions of fact. For instance, plaintiff attempts to establish that hydrostatic testing was being conducted, rather than drying the line, which could arguably implicate the contractual provisions regarding supervision (Plaintiff's Ex H, 8-11; 22-23; 32-33; & 43). However, these submissions relate either to work occurring on other dates, at other well sites, or do not identify the well site. As such, these submissions are not sufficient to satisfy plaintiff's burden on this motion.

Next, plaintiff argues that there is proof that one of defendants' inspectors, James Rios, was on site at the W-3 location on the date of this accident (Plaintiff's Ex H, pp 28-29). However, proof of Mr. Rios' mere presence at the site on the date of the accident is insufficient to raise a question of fact as to defendant's supervision and control. In this court's view, there is [*4]no proof in evidentiary form that Mr. Rios was physically present at the same location as plaintiff (as opposed to the compressor area nearly two miles away), what time he was present, or that he was involved in plaintiff's work.[FN5]

In sum, the court finds no proof that plaintiff ever received instructions from any of defendants' employees regarding how or where to conduct his work. Although it is undisputed that CNY retained a contractual right to stop work for unsafe activity, there is no proof that defendants ever exercised actual supervision and control over the method of plaintiff's work. Accordingly, the defendants' motion for summary judgment with respect to Labor Law 200 and common law negligence is granted.

II.Labor Law 240 (1)

Labor Law 240 (1) states, in part, that "[a]ll contractors and owners and their agents...in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected 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." Labor Law 240 (1) was enacted "[i]n recognition of the exceptionally dangerous conditions posed by elevation differentials at work sites...for workers laboring under unique gravity-related hazards [citation omitted]" (Misseritti v Mark IV Constr. Co., 86 NY2d 487, 491 [1995], rearg. denied 87 NY2d 969 [1996]). Moreover, it is an accepted tenet that "[t]he extraordinary protections of Labor Law § 240 (1) extend only to a narrow class of special hazards, and do 'not encompass any and all perils that may be connected in some tangential way with the effects of gravity' (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [emphasis in original])" (Nieves v Five Boro Air Conditioning & Refrig. Corp., 93 NY2d 914, 915-916 [1999]).

Defendants contend that plaintiff was working at ground level and the pipeline was also situated at ground level so as not to implicate the gravity-related dangers of Labor Law 240 (1). To the contrary, plaintiff argues that gravity was involved in this accident because: (1) plaintiff was propelled into the air when the pipeline (which according to plaintiff should be viewed as a falling object) hit him and caused him to fall back to the ground; and (2) the slug allegedly running through the pipeline underwent an elevation change via kinetic force (Pikul Affidavit, pp 9-10).

The court finds that plaintiff was working at ground level and that the pipeline itself was also positioned at ground level and may not be categorized as a falling object. Quite simply, the court finds that Labor Law 240 (1) does not apply because plaintiff and the pipeline were both positioned at ground level (St. Louis v Town of North Elba, 17 AD3d 832 [2005]). Defendants' [*5]motion for summary judgment dismissing plaintiff's Labor Law 240 (1) cause of action will be granted.

III.Labor Law 241 (6)

Labor Law 241 (6) mandates owners and contractors provide reasonable and adequate protection and safety for workers by requiring them to comply with specific safety rules and regulations promulgated by the Commissioner of the Department of Labor, as opposed to general safety standards regulations (Ross, 81 NY2d 494, 501-502, 505 [1993]). The Commissioner's rules, known as the State Industrial Code, are contained in Title 12 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("NYCRR"). This duty is nondelegable, and the injured party need not show that a landowner exercised supervision and control over the work site (Long v Forest-Fehlhaber, 55 NY2d 154, 159 [1982]). Additionally, a plaintiff must establish that the violation of the specific safety regulation was a proximate cause of the accident (Ares v State of New York, 80 NY2d 959 [1992]). The court will review each named Industrial Code provision in seriatim.[FN6]

Industrial Code 23-1.5

The court need not address the merits of plaintiff's arguments relative to Industrial Code 23-1.5 since it has been deemed a general provision that cannot sustain a Labor Law 241 (6) cause of action (McGrath v Lake Tree Vil. Assocs., 216 AD2d 877 [1995]).

Industrial Code 23-1.7

Plaintiff originally cited Industrial Code 23-1.7 in his First Bill of Particulars (Plaintiff's Ex F), but does not address this provision in his opposing papers (Forrest Affirmation dated November 7, 2006, ¶ 29; Pikul Affidavit). Although Industrial Code 23-1.7 is a specific provision (O'Connor v Lincoln Metrocenter Partners, 266 AD2d 60 [1999]), the court finds this provision relating to "Overhead hazards" to be inapplicable to the facts of this case (DeLong v State St. Assocs., 211 AD2d 891, 893 [1995]).

Industrial Code 23-1.20

Industrial Code 23-1.20 is entitled "Chutes" and states as follows:

[w]ooden or metal chutes used for the removal of material and debris from elevated levels of a building or other structure and which are at an angle of more than 45 degrees from the horizontal shall be entirely enclosed on all sides and the top, except for openings used for the receiving and discharging of material and debris.

Plaintiff argues that since this pipeline had elevation changes (e.g. one end of the pipeline [*6]was at a lower level than the other end of the pipeline) that it was "effectively acting as a 'chute' in that it was used to remove debris from a higher elevation of the pipeline" (Pikul Affidavit, p 11). The court could not find any legal authority - nor did plaintiff offer any such authority - supporting this most liberal interpretation of a pipeline as a chute. Thus, the court finds Industrial Code provision 23-1.20 is inapplicable to the case at bar.

Industrial Code 23-2.1(b)

Industrial Code 23-2.1 (b) is entitled "Disposal of debris" and states that "[d]ebris shall be handled and disposed of by methods that will not endanger any person employed in the area of such disposal or any person lawfully frequenting such area." Again, plaintiff argues that the pipeline was "[e]ffectively acting as a method of disposal for water/debris located in an upper area of the pipeline" (Pikul Affidavit , p 12). Once again, the court could not find any legal authority - nor did plaintiff offer any such authority - supporting his argument. The court finds Industrial Code provision 23-2.1(b) is inapplicable to the case at bar.

Industrial Code 23-6.1 & 6.2

Plaintiff originally cited Industrial Code 23-6.1 & 6.2, relating to material hoisting, in his First Bill of Particulars, but his expert does not address these provisions. In view of plaintiff's expert's failure to address these provisions in his affidavit, the court will deem the Labor Law 241 (6) cause of action based upon these provisions to have been withdrawn and, in any event, finds these provisions inapplicable to the facts of this case.

Industrial Code 23-8.1 & 23-8.5

Industrial Code provisions 23.81 & 23-8.5 relate to "mobile cranes, tower cranes and derricks." Plaintiff's expert states that the pipe laying machine could be classified as a mobile crane, but that he would need additional discovery to figure out if such equipment was involved on this Project (Pikul Affidavit, p 12). Plaintiff's supplemental papers do not provide any additional information regarding this provision and, as such, the court will deem the Labor Law 241 (6) cause of action based upon these provisions to have been withdrawn and, in any event, finds these provisions inapplicable to the facts of this case.

Industrial Code 23-9.2 (a) & (b) & 23-9.4

Plaintiff argues that the air compressor may not have been operated by a trained person and/or in a safe manner (Pikul Affidavit, p 12). Further, plaintiff's expert states he would need additional discovery regarding the experience level of the "Oiler" working on this Project to determine the applicability of these provisions (Pikul Affidavit, p 13). However, plaintiff has not submitted any supplemental affidavit from his expert clarifying what new evidence supports the implication of these provisions. Thus, the court finds that plaintiff has failed to establish that these provisions are applicable to this case.

In sum, defendants' motion for summary judgment dismissing plaintiff's Labor Law 241 (6) cause of action will be granted.

[*7]Conclusion

For the reasons stated, defendants' motion for summary judgment dismissing the complaint and any cross-claims is GRANTED in its entirety.

The foregoing constitutes an order of the court.

It is so ordered.

Dated: June 29 , 2007s/ Ferris D. Lebous

Binghamton, New YorkHon. Ferris D. Lebous

Justice, Supreme Court Footnotes

Footnote 1:A stipulation of discontinuance relative to defendants SNC-Lavalin America, Inc. and SNC-Lavalin Group, Inc. was filed on October 10, 2006. A stipulation of discontinuance relative to defendants Wilbert E. Widell and Mildred E. Widell was filed on April 21, 2005.

Footnote 2:The term "plaintiff" will refer solely to Charles R.T. Krause inasmuch as the claim of Kimberly Krause is derivative in nature.

Footnote 3:Ms. Parsons was identified as an oiler on the hole (Defs Ex J, 23).

Footnote 4:There are 5 affirmations alone from defendants' counsel, Keith A. O'Hara, Esq., dated August 3, 2006, November 6, 2006, November 13, 2006, March 7, 2007, and June 18, 2007. Third-party defendant Gregory's counsel, Jill E. O'Sullivan, Esq. submits an affirmation dated November 1, 2006 and a reply affirmation dated June 19, 2007. Plaintiff's counsel, Harry J. Forrest, Esq. submits an affirmation dated November 7, 2006 and supplemental affirmation dated June 6, 2007.

Footnote 5:Also, the court notes that plaintiff's expert, Richard R. Pikul, P.E., merely made conclusory remarks regarding potential Labor Law 200 violations, but those statements were never supplemented following additional discovery.

Footnote 6:As a procedural matter, plaintiff's last minute insertion of additional Industrial Code provisions is allowable. The Third Department has specifically stated that although it does "[n]ot condone this dilatory practice," as long as the "belatedly cited regulation" sets forth a specific safety rule that is applicable to the case at hand, then such is sufficient to support a Labor Law 241 (6) cause of action (Mills v Niagara Mohawk Power Corp., 262 AD2d 901, 902 [1999]).