Rizzuto v. L.A. Wenger Contracting Co.

OPINION OF THE COURT

This action arises out of a worksite accident which occurred at the New York City Transit Authority Bus Terminal on 126th Street, in Manhattan. At the time of the accident, the 126th Street Terminal was undergoing rehabilitation, with various phases of construction, concrete and mechanical installations and excavations taking place in different areas of the depot. The bus depot, owned and operated by the Transit Authority,

There was evidence adduced in pretrial discovery that on the date of the accident, plaintiff and an assistant, also employed by Milo, were removing and replacing a submersible pump in the fuel station area of the bus depot. Two Transit Authority employees, working approximately 10 to 12 feet to his left, informed plaintiff that they were planning to pressure-test an underground tank for leakage. Plaintiff subsequently observed an eruption of fluid from the area in which the Transit Authority workers were testing the tank and, in the course of his installation, plaintiff and his immediate work area were suddenly sprayed with diesel fuel. According to plaintiffs deposition, the fuel “sprayed all over [him] and the floor,” covering his arms, chest, head and clothing. Upon being sprayed, plaintiff stood up and, as he attempted to leave the work area to clean himself off, “both of [his] feet slipped out from underneath [him] at the same time” and he fell, allegedly sustaining serious personal injuries.

Plaintiff commenced the instant action against the general contractor (defendant L.A. Wenger), asserting causes of action sounding in common-law negligence, and violations under Labor Law § 200 (1) and § 241 (6). Plaintiff alleged that defendant violated certain specific safety rules and regulations, and that defendant’s negligence caused, allowed or permitted an unsafe and hazardous condition to be present in the depot. Plaintiff also claimed that defendant retained supervision and control of the construction site throughout the rehabilitation, and that its failure to exercise such supervision and control, so as to provide him with reasonable and adequate protection, was the proximate cause of the injuries he sustained.

Supreme Court granted defendant’s motion for summary judgment in its entirety. It found no factual basis for liability under plaintiff’s common-law negligence or Labor Law § 200 claims because the evidence failed to establish that the general contractor exercised supervisory control over the construction site or the work activity bringing about the injury. The court also found no merit in plaintiffs Labor Law § 241 (6) cause of action, concluding that neither the provisions of the State

The Appellate Division affirmed ( 237 AD2d 500 ). That Court agreed with Supreme Court’s reasoning regarding the lack of merit to plaintiff’s common-law negligence and Labor Law § 200 causes of action. With respect to plaintiff’s claim under Labor Law § 241 (6), the Court also found dismissal warranted because “the evidence demonstrates that the [general contractor] did not have actual or constructive notice of any dangerous condition which may have caused the accident” (id., at 501 [emphasis supplied]). We granted plaintiff leave to appeal, and now reverse the Appellate Division order and reinstate all three causes of action.

We conclude that the Appellate Division erred in dismissing the Labor Law § 241 (6) cause of action based on its determination that such a claim is defeated by the absence of notice, to the general contractor, of the hazardous condition causing the injury. We also conclude that Supreme Court erred in finding that none of the regulatory provisions upon which plaintiff relied set forth the requisite specific standard giving rise to a nondelegable duty under section 241 (6).

Labor Law § 241 (6), by its very terms, imposes a nondelegable duty of reasonable care upon owners and contractors “to provide reasonable and adequate protection and safety” to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed (see also, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 , 501-502; Long v Forest-Fehlhaber, 55 NY2d 154 , 160, rearg denied 56 NY2d 805 ; Allen v Cloutier Constr. Corp., 44 NY2d 290 , 299-300, rearg denied 45 NY2d 776 ). Indeed, the history underlying section 241, as amended, clearly manifests the legislative intent to place the “ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor” (1969 NY Legis Ann, at 407-408 [emphasis supplied]; see also, Allen v Cloutier Constr. Corp., 44 NY2d, at 300 , supra).

Deeming this responsibility to be “absolute” (Allen v Cloutier Constr. Corp., supra, at 300), we held that section 241 (6) imposes liability upon a general contractor for the negligence of a subcontractor, even in the absence of control or supervision

In Long v Forest-Fehlhaber, we similarly contrasted the nondelegable nature of the duty of reasonable care imposed on owners and contractors under subdivision (6) with the duty arising under the first five subdivisions of section 241 ( 55 NY2d, at 159-160 , supra, citing Monroe v City of New York, 67 AD2d, at 103 , supra). In Forest-Fehlhaber, we also reiterated the principle “long and firmly established in New York” ( 55 NY2d, at 160 , supra) that, unlike a violation of an explicit and definite statutory provision which demonstrates negligence as a matter of law, a violation of section 241 (6) “is ‘merely some evidence which the jury may consider on the question of defendant’s negligence’” (id., quoting Teller v Prospect Hgts. Hosp., 280 NY 456 , 460 [emphasis supplied]; see also, Mirabel and Levy, Negligence § 46, at 57-58 [1962]).

Most recently, in Ross v Curtis-Palmer Hydro-Elec. Co. {supra), we refined the standard of liability under section 241 (6) by requiring that the rule or regulation alleged to have been breached be a “ ‘specific, positive command’ ” ( 81 NY2d, at 504 , supra), rather than a “ ‘reiteration of common-law standards’ ” which would merely incorporate into the State Industrial Code a general duty of care {id.). We distinguished between Code provisions “mandating compliance with concrete specifications and those that establish general safety standards” {id., at 505), cautioning that any other rule would permit recovery under section 241 (6) against a nonsupervising owner or general contractor merely by application of broad, nonspecific regulatory language and “would seriously distort the scheme of liability * * * that has been developed in our case law” {id., at 504).

As the foregoing demonstrates, although this Court has consistently rejected the notion that a violation of section 241 (6)

An owner or general contractor may, of course, raise any valid defense to the imposition of vicarious liability under section 241 (6), including contributory and comparative negligence (see, Long v Forest-Fehlhaber, supra, at 159-161 ; Ross v Curtis-Palmer Hydro-Elec. Co., supra, at 502, n 4; Zimmer v Chemung County Performing Arts, 65 NY2d 513 , 521-522, rearg denied 65 NY2d 1054 ).

It follows that the Appellate Division erred in absolving the defendant general contractor from liability under section 241 (6) by reason of its absence of control or lack of personal notice for an opportunity to cure the dangerous condition. By requiring control and/or notice for an opportunity to cure, the Appellate Division reincorporated a common-law standard of due care into section 241 (6), essentially requiring direct negligent acts or omissions by the general contractor, thereby eliminating the underlying basis of vicarious liability and replicating much of what Labor Law § 200 has been interpreted to require.

Supreme Court was equally in error here in its conclusion that, as a matter of law, there was no violation of a specific provision of the State Industrial Code sufficient to premise liability under Labor Law § 241 (6). In his verified complaint and supplementary bill of particulars, plaintiff alleged that the diesel fuel, sprayed on the floor of the depot, created a slippery condition in violation of several State Industrial Code provisions, including 12 NYCRR 23-1.7 (d). That regulation, in pertinent part, unequivocally directs employers not to “suffer or permit any employee” to use a slippery floor or walkway, and

Upon our review of the record, we also conclude that both lower courts erred in summarily dismissing plaintiffs Labor Law § 200 and common-law negligence causes of action. Unlike Labor Law § 241 (6), section 200 is a codification of the common-law duty imposed upon an owner or general contractor to maintain a safe construction site (see, Ross v Curtis-Palmer Hydro-Elec. Co., supra, at 505; see also, Comes v New York State Elec. & Gas Corp., 82 NY2d 876 , 877). It is well settled that an implicit precondition to this duty is that the party to be charged with that obligation “have 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 311 , 317 [emphasis supplied]; see also, Ross v Curtis-Palmer Hydro-Elec. Co., supra, at 505-506; Lombardi v Stout, 80 NY2d 290 , 295).

Plaintiffs claims rest on portions of testimony taken in the deposition of David Wenger, defendant’s vice-president and secretary. Mr. Wenger testified that he was assigned to assist defendant’s project manager during the rehabilitation, and that his duties involved interaction with the individual subcontractors and scheduling and coordination of the construction with the depot. Mr. Wenger also acknowledged that occasionally, he personally supervised the project, interacting with the foremen of the subcontractors to ensure that the physical work progressed in accordance with the plans, specifications and safety rules.

Critical here, however, is Mr. Wenger’s testimony that, in coordinating the work areas with the depot managers and subcontractors, defendant’s project supervisor was able to condition access to areas under construction to ensure that an

Thus, contrary to the conclusions of the courts below, there exists sufficient record evidence to present a triable issue on whether defendant had control over the methods of the subcontractors and other worksite employees in the sense that defendant had the ability to coordinate the work activity of its subcontractors and the Transit Authority, had the capacity to exclude the Transit Authority from working in the fuel station area of the depot, or had the authority to direct either its subcontractors or the Transit Authority to not engage in an operation while another potentially hazardous activity, i.e., pressure-testing an underground fuel tank, was taking place within the immediate area (see, Ross v Curtis-Palmer HydroElec. Co., supra, at 505-506; Comes v New York State Elec. & Gas Corp., 82 NY2d, at 877-878 , supra).

Additionally, it is inferable that defendant knew or should have known of the danger to plaintiff from permitting the continuation of his operation simultaneously with and in close proximity to the pressure-testing and its resultant risk of a violent discharge of diesel fuel. The foregoing evidence, if credited, would have permitted the jury to rationally conclude that defendant possessed the requisite supervisory control over that portion of the work activity bringing about the injury to enable it to prevent the creation of the unsafe condition or plaintiff’s exposure to it (see, Russin v Picciano & Son, 54 NY2d, at 317 , supra; see also, Ross v Curtis-Palmer HydroElec. Co., supra, at 506).

Consequently, at this stage in the proceedings, plaintiff’s submissions are also sufficient to avoid dismissal of his Labor Law § 200 and common-law negligence causes of action.

Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Ciparick and Wesley concur.

Order reversed, etc.