Crane v A.O. Smith Water Products Co.
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Crane v A.O. Smith Water Products Co. 2012 NY Slip Op 32315(U) September 5, 2012 Sup Ct, New York County Docket Number: 190082/11 Judge: Sherry Klein Heitler Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE O F NEW YORK NEW YORK COUNTY PRESENT: ' I HON.SHERRY KLEIN HEITLER PART do Justlce - Index Number : 190082/2011 CRANE, PAUL VS. MOTION DATE A.O. SMITH WATER PRODUCTS SEQUENCE NUMBER : 006 SUMMARY JUDGMENT The following papen, numbered I to Notice of MotionlOrder to Show Cause f3' MOTION SEQ. NO. OD& I;', , were read on thls motlon tonor -AmdrvlG - Exhlblta Anrwering Affldavits - Exhlblk Replying Affldavlts Upon the fomgolng paperq, it lo ordered that thls motlon Is && IWd. IW s ) . INOW. l a FILED NEW YORK COUNTY CLERKS OFFICE Dated: 9.G 12.- I . CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: 3. CHECK IF APPROPRIATE: ...........................MOTION IS: ................................................ s ,J.S.C. HON. SHERRY KLEIN HEITLER CASE DISPOSED 0 NON-FINAL DISPOSITION GRANTED 0DENIED 0GRANTED IN PART 0OTHER SUBMIT ORDER 0SEllLE ORDER 0DO NOT POST 0FIDUCIARY APPOINTMENT 0REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW Y O N COUNTY OF NEW YORK: PART 30 ,,idex No. 821 Motion Seq. 006 PAUL CRANE and ARLENE CRANE Plaintiff, DECISION & ORDER - against - FILED A.O. SMITH WATER PRODUCTS CO., et al. SHERRY KLEIN HEITLER, J.: NEW YORK R K OFFICE In this asbestos personal injury action, defendant National Grid Gen&#@-ff~sue8 herein as Long Island Lighting Company ( LILCO ), moves pursuant to CPLR 3212 for s u m m a r y judgment dismissing the complaint and all cross claims against it on the ground that under New York s Labor Law and the common law that it cannot be held responsible for plaintiff Paul Crane s alleged asbestos exposure. For the reasons set forth below, the motion is denied. 1BACK:GROUND Plaintiff Paul Crane was diagnosed with mesothelioma in February of 201 1. This action was commenced in March of 201 1 by Mr. Crane and his wife Arlene Crane to recover for personal injuries allegedly caused by Mr. Crane s exposure to asbestos. Relevant to this motion is plaintiffs claim that Mr. Crane was exposed to asbestos while working at the Shoreham Nuclear Power Plant construction site ( Shoreham ) a a steamfitter from 1975 to 1986. s Mr. Crane was deposed over the course of three days between May 24,201 1 and May 26, 201 1.I He testified that while at Shoreham he worked for steamfitting subcontractor Courter & Co. 1 Copies of his deposition transcripts are submitted as defendant s exhibits D and E ( Deposition ). -1- [* 3] ( Courter ), primarily in the reactor and turbine rooms, where he was responsible for installing and repairing pipes. He testified that particular concern had to be paid to the integrity of the Shoreham site due to strict nuclear regulations, and he was required to wrap all of the pipes in asbestos blankets to protect them fiom falling equipment and other hazards. After working several years as an insulator at Shoreham, Mr. Crane was trained as a welder, in which capacity he continued to use pure asbestos blankets to protect himself while he performed his duties. These same blankets were then cut into smaller pieces and used to wrap the pipes. Other steamfitters working in Mr. Crane s presence would often remove and replace these blankets by hand. Mr Crane testified that in or about 1977 the pure asbestos blankets were replaced with Novatex-brand asbestos-containingblankets. During this replacement process the work areas were neither cordoned off nor wetted down to prevent dust from spreading throughout the facility. The defendant does not dispute that Mr. Crane was exposed to asbestos when he personally handled the pure asbestos blankets and Novatex asbestos-containingblankets. Nor does the defendant dispute that Mr. Crane s co-workers manipulated asbestos-containingproducts in his presence. Defendant contends under Labor Law 0 200 and the common law that it is not a proper party to this case because whether or not it w s an owner of the Shoreham site it did not supervise or a control the work which brought about Mr. Crane s injuries. In support the defendant submits contracts with Courter and the Stone & Webster Engineering Corporation ( Stone & Webster ) to show that such contractors managed everyday construction at the Shoreham site. Plaintiffs in opposition submit documentary evidence to show that LILCO did indeed exercise the requisite degree of supervision and control over Mr. Crane and his work processes such that it is strictly liable to plaintiffs pursuant to New York s Labor Law. -2- [* 4] J)ISCU$SION Labor Law 5 2002codifies the common-law duty imposed on an owner or general contractor to provide construction workers with a safe work site, See Nevins v Essex Owners Corp., 276 AD2d 3 15 (1 st Dept 2000). Liability under 6 200 is limited to parties who exercised direct supervisory a control over the manner in which the activity alleged to have caused the injury w s performed (Burkoskiv Structure Tone, Inc., 40 AD3d 378,380-8 1 [ 1st Dept 20071) or who create or have actual or constructive notice of an unsafe condition whch causes the injury. Comes v Nav York State Electric & Gas Cop., 82 NY2d 876,877 (1993). To refute the defendant s claim that it did not exercise control over Mr. Crane s work, the plaintiffs must show that LILCO had the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition, Russin v Picciano & Son, 54 NY2d 3 11,317 (198 l), or that LILCO had actual or constructive notice of the defective condition that caused the injury,see LaRose v Resinick Eighth Ave. Assoc., LLC, 26 AD3d 470 (2nd Dept 2006);see also Comes, supra, at 877. The key issue is whether LLLCO was in a position to avoid or correct [the] unsafe condition. Russin, supra, 54 NY2d at 3 17. Despite the defendant s contentions, Mr. Crane s testimony evinces LILCO s general control over the Shoreham site (Deposition p. 105-06): 2 Labor Law 8 200, entitled General duty to protect health and safety of employees; enforcement , provides in relevant part, that 1. All places to whch this chapter applies shall be so constructed, equipped, armnged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons. The board may make rules to carry into effect the provisions of this section. -3- [* 5] Q: And at any time when you were at Shoreham were you ever warned or told by LILCO or anyone else that there was something dangerous about the air you were breathing7 A: No. Q: And what was, generally speaking, LILCO s role at the Shoreham power plant? A: Well, they oversaw the job site. I mean, Stone & Webster was the i m but a engineering f r , they had to answer to LILCO. LILCO w s actively involved in the site. Q: Did you ever see MY LILCO people, LILCO employees on the site? A: Yes. Q: What were they generally doing? A: Walking around with clipboards and checking, I guess, making sure the a piping w s installed. I m sure that Stone & Webster or Courter was billing them, so they would check that kind of stuff. The court recognizes that under Labor Law 0 200 general supervisory authority in and of itself is insufficient to constitute supervisory control. Hughes v Tishman Constr. COT.,40 AD3d 305,306 (1st Dept 2007). It must also be demonstrated that the owner controlled the manner in whxh the plaintiff performed his or her work, i.e., how the injury-producing work was performed. Id. The defendant s contracts with its construction manager, Stone & Webste?, and its steamfitting subcontractor, Courtei, (see defendant s exhibits F & G) more than sufficiently show that LILCO exercised the requisite degree of control over the site. The May 3 1, 1973 agreement between LILCO and Stone & Webster provides that Stone & Webster s responsibilities shall not include day to day supervision of any subcontractors. (Defendant s exhibit F, p. 2). The contract 3 Notably, Stone & Webster s title changed fiom construction manager to constructor in 1973, two years before Mr. Crane began to work at the Shoreham construction site. (Defendant s exhibit F, Amendment to Contract Dated as of June 1, 1967, at 1). -4- [* 6] further provides that various positions within the construction supervisory force may be staffed by qualified LILCO construction personal as designated by LLCO and as a g e d upon by Stone & Webster. (Id. at 4 . The logical implication of these provisions is that LILCO itself retained a ) significant degree of supervisory responsibilities. Perhaps even more inculpatory of the defendant s authority is its January 2, 1974 contract with Courter, which in relevant part provides that [all1 piping, valves, pipe supports equipment and materials to be installed shall be fumished by [LILCO] to the Contractor. (Defendant s exhibit G, p. 2). Moreover, the documentary evidence submitted by plaintiffs also demonstrate control, starting with two National Institute for Occupational Safety and Health ( NOSH ) reports which were issued in response to a confidential request for a health hazard evaluation from employees at ee the Shoreham power plant who w r concerned about the use of Novatex blankets. (Plaintiffs exhibit D). The first report, which was issued in November of 1979, confirms Mr. Crane s testimony concerning the use of such blankets and plaintiffs claims that the use of such blankets caused the workers to be exposed to asbestos. LILCO was aware of these inspections because the report reveals that NIOSH investigators met with both company and union representatives while touring the site. NIOSH issued a follow-up report in or about February 1980, in which it concluded that a hazard of occupational exposure to airborne asbestos fibers exists at the Shoreham Nuclear Power Plant construction site. (Plaintiffs exhibit E, p. 1). NIOSH recommended, among other things, that Novatex not be used a a kneeling blanket, that workers be given instructions to pick up s and properly dispose of Novatex scraps, and that all cleanup of asbestos dust be accomplished via vacuum cleaners and wet cleaning methods as opposed to dry sweeping methods. On or about April 14,1980, LILCO assistant project manager W.J. Museler responded to the -5- [* 7] NIOSH reports. (Plaintiffs exhibit F). While Mr. Museler did not concur with NIOSH s primary conclusion regarding the potential for occupational asbestos exposure at the Shoreham site, he conceded that several of [NIOSH s] recommendations . . . are worthwhile and we areproceeding to reduce the use ofNovatex even-firther. Id (emphasis added), In or about May 1, 1980, Mr. Museler sent a memorandum to all of the Shoreham construction site supervisors and contractors regarding the proper handling of Novatex materials. Mr. Museler attached a compilation of handling and disposal guidelines to his memorandum, several of which did comport with NIOSH s earlier recommendations. These LLCO guidelines were distributed to al of the steamfitters by l Cower, Mr. Crane s employer. LILCO argues that the plaintiffs have failed to show that it exercised any supervision or control over the steamfitters use of the blankets prior to NIOSH s involvement. According to LILCO, this is crucial because the health hazard was the improper use of the blankets, not the blankets themselves , and because Mr. Crane does not allege that he was exposed to asbestos at the Shoreham site after NIOSH became involved in late 1979. (Defendant s Reply Afirmation, p. 3). In LLCO s view, it cannot be charged with a duty under the Labor Law in the absence of such evidence. But it appears to this court that since LILCO was integral to the implementation of safety guidelines for the use and handling of asbestos blankets after NIOSH issued its reports, a reasonable inference may be drawn that LILCO supervised or controlled which materials would be used at the Shoreham site prior to NIOSH s involvement. LILCO has not presented any evidence to the contrary. Overall, the evidence shows that LILCO was responsible for the presence of pure asbestos blankets and Novatex blankets at the Shoreham nuclear power plant. It also shows that LILCO -6- [* 8] directed and implemented safety procedures regarding those materials. This evidences LILCO s authority to supervise and control the exact unsafe conditions which plaintiffs allege caused Mr. Crane s injuries. The defendant s denial of supervisory authority prior to NOSH S involvement is without merit. Accordingly, it is hereby ORDERED that National Grid Generation, LLC s motion for summary judgement is denied in its entirety. This constitutes the decision and order of the court. DATED: 9 5-12 J.S.C. FILED NEW YORK COUNTY CLERK S OFFICE -7-
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