Moore v Kinder Morgan Liquids Terms., LLC

[*1] Moore v Kinder Morgan Liquids Terms., LLC 2008 NY Slip Op 50477(U) [19 Misc 3d 1102(A)] Decided on March 13, 2008 Supreme Court, Richmond County Minardo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 13, 2008
Supreme Court, Richmond County

Kevin Moore, Plaintiff,

against

Kinder Morgan Liquids Terminals, LLC, Defendant.



100176/06

Philip G. Minardo, J.

In a personal injury action, plaintiff Kevin Moore moves by notice of motion for an order granting him summary judgment as against defendant Kinder Morgan Liquids Terminals, LLC (hereafter "defendant") on the issue of liability. Defendant opposes the motion.

This matter devolves from injuries allegedly sustained by plaintiff when he fell through a roof while working at defendant's Port Mobil facility located on Staten Island. The fact of defendant's ownership is not in dispute.

The complaint alleges that plaintiff's employer (third-party defendant Allentech, Inc.) had been hired by defendant to raise an internal "floating roof" in one of the fuel tanks located at Port Mobil. The tank itself was circular in design, being fifty feet in diameter and approximately fifty feet high. The floating roof was made of aluminum and supported in part by steel beams spaced five feet. According to plaintiff, the roof to be raised was old and full of pinholes. At the time of his accident, plaintiff was working on the aluminum roof while standing on a six foot wooden 2" by 4" braced between steel beams, and sustained his injury when the plank "flipped over", causing him to fall onto and through the aluminum roof to a metal floor some seven feet below. This action was commenced by the filing and service of a summons with complaint on or about [*2]January 13, 2006. Issue was joined by the service of an answer on or about February 24, 2006.

LABOR LAW § 240(1)

As is relevant, Labor Law § 240(1) provides as follows:

"All contractors or owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, 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 ... ladders ... and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."

It is well settled that this section of the Labor Law was "designed to prevent those types of accidents in which [a] scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [emphasis omitted]). To accomplish this goal, the legislature placed financial responsibility for the failure to provide adequate safety devices upon the parties deemed best suited to bear that obligation, i.e., owners, general contractors and their agents (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520-521). The duty thus imposed was made nondelegable, and fully independent of the exercise of supervision or control over the work being performed (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 500). However, as the Court of Appeals has recognized, the liability thus imposed is not absolute and may be defeated where a recalcitrant worker fails to use available safety devices for his or her protection (see Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39). Accordingly, in such cases where it can be fairly said that a plaintiff's failure to use such devices was the sole proximate cause of an injury, liability will not be imposed (see Blake v Neighborhood Hous. Servs. of NY City, Inc., 1 NY3d 280).

SUMMARY JUDGMENT

Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Rotuba Extruders v Ceppos, 46 NY2d 223; Herrin v Airborne Freight Corp., 301 AD2d 500). On a motion for summary judgment, the function of the Court is issue finding, not issue determination (see Weiner v Ga-Ro Die Cutting, 104 AD2d 331, affd 65 NY 732). In making such an inquiry, the proof must be scrutinized carefully in the light most favorable to the party opposing the motion (see Glennon v Mayo, 148 AD2d 580). To prevail on the motion, the moving party must present prima [*3]facie evidence of its entitlement to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320, 324). Upon its failure to do so, the motion will be denied. Once a prima facie showing has been made, however, the burden shifts to the party opposing the motion to produce competent evidence demonstrating the existence of triable issues of fact (Zuckerman v City of New York, 49 NY2d 557, 562). In this regard, "mere conclusion, expression of hope or unsubstantiated allegations or assertions are insufficient" to raise a triable issue (id. at 562). Thus, summary judgment, which operates to deprive a party of his or her day in Court, is only appropriate where the movant's initial burden of proof has been satisfied, and the opposing party has failed to adduce competent evidence demonstrating the presence of a genuine issue of material fact (Persaud v Darbeau, 13 AD3d 347).

With these criteria in mind, it is the opinion of this Court that plaintiff has made a prima facie showing of his entitlement to summary judgment under Labor Law § 240(1) based on the description of the accident contained in his deposition testimony. Accordingly, it is incumbent upon defendant to raise a triable issue of fact on liability in order to defeat the motion. In this case, that burden has been met.

In opposition to the motion, defendant relies on plaintiff's deposition testimony, as well as the deposition testimony of Sherri Lee Henrichs, William Mark Urban (the job foreman) and Daniel Carl Pennington (a co-worker). Also submitted is a copy of a contractor's safety manual that all of defendant's subcontractors are contractually required to read (see Defendant's Exhibit "E"). According to plaintiff, although it was normal practice to have a "tailgate safety meeting" before starting any job, no such safety meeting had been convened at this job site (Plaintiff's EBT pp 23, 24). Plaintiff also testified that he was concerned about the ability of the roof being raised to support his weight (id. at p 118), and acknowledged that he could have worn a safety harness on the day of his accident, but that it would have been an inconvenience (id. at p 127).

For his part, William Mark Urban, plaintiff's foreman, testified that defendant required all of Allentech employees including plaintiff, to sit through a safety video that cautioned the workers about the use a safety harness whenever working a stated number of feet off the edge of the tank (Urban's EBT, pp 11-13). Contrary to plaintiff, Urban also testified that a "tailgate" safety meeting was held on the morning of plaintiff's accident, at which the need to use both a safety line and a harness while working on the top of the roof was discussed (id. at pp 13-14). In fact, according to this witness, plaintiff had signed a document on the day of the accident which reflected the discussion about safety and the need to use a harness while working on the roof (id. at p 15). However, it appears that plaintiff was comfortable using only the six foot wooden board to avoid stepping on the pin-holed roof (id. at pp 22-23, 43). According to Urban, the accident occurred when the edge of the board "kicked-up" and caused plaintiff to fall (id. at p 31).

To the extent relevant, the deposition testimony of plaintiff's fellow employee, Daniel Carl Pennington, corroborates the foreman's testimony as to the safety video, the tail-gate meeting, the need to use a safety harness and the safety sign-off by all Allentech employees including plaintiff. [*4]In addition, it is undisputed that the safety manual attached to Allentech's contract mandated the use of fall protection devices whenever work was being performed six feet or more above the next working surface (Defendant's Exhibit "E", §§ 7, 7.1).

Based on these submissions, and viewing the evidence in light most favorable to defendant, the Court finds a that triable issue of fact exists, at a minimum, as to whether plaintiff was a recalcitrant worker who failed to use available safety devices [FN1].

Accordingly, it is

ORDERED, plaintiff's motion for summary judgment on the issues of liability is denied.

E N T E R,

s/ Philip G. Minardo

J.S.C.

Dated: March 13, 2008 Footnotes

Footnote 1:Defendant's opposition papers refer to a cross motion for summary judgment which was not calendared herewith. Accordingly, said cross motion has not been considered.