New York State Court of Claims

New York State Court of Claims

DEFILIPPO v. THE STATE OF NEW YORK, #2000-001-021, Claim No. 98313, Motion No. M-61044


Synopsis


The Court grants defendant's motion for summary judgment; the claim is dismissed.

Case Information

UID:
2000-001-021
Claimant(s):
ROBERT A. DEFILIPPO
Claimant short name:
DEFILIPPO
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98313
Motion number(s):
M-61044
Cross-motion number(s):

Judge:
SUSAN PHILLIPS READ
Claimant's attorney:
Tocci, Parker & TocciBy: Trisha R. Schell-Guy, Esq., Of Counsel
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General
By: Dreyer Boyajian, LLPJohn B. Casey, Esq., Of Counsel
Third-party defendant's attorney:

Signature date:
June 30, 2000
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on defendant's motion for summary judgment dismissing the claim: Notice of Motion, dated January 11 and filed January 12, 2000, with annexed Exhibits A-J; Affidavit of John B. Casey, Esq., dated January 11 and received January 12, 2000; Affidavit of Ernest J. Gailor, P.E., dated January 11 and received January 12, 2000; Defendant's Memorandum of Law, dated January 11 and received January 12, 2000; Affidavit in Opposition of Trisha R. Schell-Guy, Esq., dated February 15 and filed February 18, 2000, with annexed Exhibit A; Affidavit of Claimant Robert A DeFilippo, dated February 15 and filed February 18, 2000; Claimant's Memorandum of Law in Opposition, dated February 15 and received February 18, 2000; and the Claim, dated May 6 and filed May 12, 1998.

This claim arose on July 10, 1997, when claimant Robert A. DeFilippo ("claimant") was struck by the bucket of a trackhoe while working on a construction project (Claim, sworn to May 6 and filed May 12, 1998 ["claim"], ¶ 5). Claimant's employer, John DiGiulio, Inc. ("DiGiulio"), had subcontracted with defendant State of New York ("defendant" or "the State") to install an underground fiber-optic cable on State-owned property in Rensselaer, New York (id, ¶¶ 5, 6, 7, 8). The claim contains four causes of action alleging common-law negligence (4th cause of action) and violations of three Labor Law provisions: section 240, section 200, and section 241 (1st, 2nd, and 3rd causes of action respectively) (id., ¶¶ 10 - 27).[1]

Defendant now moves for summary judgment dismissing the claim on the ground that no triable issues of fact exist regarding defendant's liability under any of these causes of action. In response to defendant's motion, claimant has conceded that Labor Law §§ 200 (1) and 240 (1) and common-law negligence do not apply (Claimant's Memorandum of Law in Opposition, dated February 15 and received February 18, 2000 ["claimant's memorandum"], p 4). The sole issue, therefore, is whether defendant is entitled to summary judgment dismissing the third cause of action, which alleges violation of Labor Law § 241 (6).

There is no disagreement about the events leading up to claimant's injury (see, Affidavit of John B. Casey, Esq., sworn to January 11, 2000 ["Casey Aff."], ¶¶ 4-11; defendant's memorandum of law, dated January 11 and received January 12, 2000, p 1; claimant's memorandum, p 3; deposition transcript of claimant taken July 20, 1999, annexed as Exhibit G to the notice of motion; deposition transcript of non-party Robert J. Wasielewski, taken July 20, 1999, annexed as Exhibit H to the notice of motion). In order to lay the fiber-optic cable, a shallow trench (30 inches deep by 18 inches wide) was cut into the surface of the roadway. The trench was dug out and graded by a piece of construction equipment known as a "trackhoe." Periodically, the trackhoe was stopped to allow areas around underground pipes and service lines running through the trench to be dug out by hand. Claimant was assigned to direct the trackhoe by giving hand signals to its operator; on the occasion when he was injured, claimant stood in the trench facing the trackhoe and walking backwards.

Claimant described the accident as follows:
I was standing in the trench using hand signals to guide Mr. Wasielewski [the trackhoe operator] in the grading of the trench. The trackhoe was in a stationary position on the street in front of the trench. The arm of the trackhoe was extended forward into the trench. There was a gas service pipe in the trench approximately ten (10) feet behind me and fifteen (15) inches below street level.

Mr. Wasielewski was grading the side of the trench and moving forward towards me. I signaled for him to stop moving and yelled. Mr. Wasielewski did not see or hear me as he was looking at the side of the trench. He continued to move forward and pinned my knees against the gas line with the bucket of the machine.
(Affidavit of Claimant Robert A DeFilippo, sworn to February 15 and filed February 18, 2000, ¶¶ 6, 7.)

In his deposition testimony, the trackhoe operator, Robert J. Wasielewski, gave the following description of events from his point of view:
I had to go back into the trench [with the trackhoe bucket] to take more out. Bob was standing on the other end of the bucket guiding me back. When you're an operator and digging you have to watch the ground, the bucket, the laborer, and all the stuff going on like if there is another guy there or what have you. Or if there is a pipe in the way. But I couldn't see the pipe because Bob was standing there and the pipe was behind Bob. As he was guiding me back, I looked at the ground and he yelled.
(Affidavit in Opposition of Trisha R. Schell-Guy, Esq., dated February 15 and filed February 18, 2000, Exhibit A.)

As previously noted (see, n 1), Labor Law § 241 (6) imposes a non-delegable duty on owners and contractors to "provide reasonable and adequate protection and safety" for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, supra). 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"). In order to establish liability on a violation of Labor Law § 241 (6), the injured party must prove that 1) a specific, positive command incorporated in one of the Commissioner's regulations--that is, something more than a generalized restatement of the common-law duty of care or a recitation of general safety standards--has been breached; and 2) the negligence of some party to the construction project caused the injury in question (Rizzuto v Wenger Contr. Co., 91 NY2d 343, 349-350).

The sole regulation on which claimant now bases the third cause of action is

12 NYCRR § 23-4.2 (k), which provides as follows:
Persons shall not be suffered or permitted to work in any area where they may be struck or endangered by any excavation equipment or by any material being dislodged by or falling from such equipment
(Claimant's memorandum, p 5). The State contends that this regulation is not sufficiently specific to support a claim under Labor Law § 241 (6) and, even if it were, that claimant is exempt from the regulation's prohibitions because his duties specifically required him to work near the excavating equipment (Casey Aff., ¶ 25 [i]). Claimant disagrees, pointing out that the regulation does not contain any of the general descriptive terms set out in 12 NYCRR § 23-1.4 (a),[2] which are recognized as being insufficiently specific to support a cause of action under this statute (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505, supra), and arguing that claimant should not be exempt from the regulation because he could have performed his work from the surface of the road "where he would not have been in danger of being struck by the equipment" (claimant's memorandum, p 6).

The specificity of 12 NYCRR 23-4 (k) has been addressed in two published decisions. In Friot v Wal-Mart Stores (240 AD2d 890), a worker injured when a mass of earthen fill dislodged from a large mound and fell down on top of him alleged violations of 12 NYCRR 23-4.2 (g) and (k). The Third Department observed that 12 NYCRR 23-4.2 (k) "has been found insufficiently specific and concrete to support a cause of action under Labor Law 241 (6)," and that both 12 NYCRR 23-4 (g) and (k) were inapplicable because they fell within subpart 23-4 of the State Industrial Code ("Excavation Operations") and the accident occurred at ground level.

The Third Department cited Webber v City of Dunkirk (226 AD2d 1050) for the proposition that 12 NYCRR 23-4.2 (k) is insufficiently specific and concrete to support a cause of action under Labor Law § 241 (6). Webber arose in the Fourth Department and also involved a ground-level accident in which the wheel of a backhoe came in contact with a worker who was raking gravel in front of it. That appellate court held that the trial court "properly determined that two of the regulations relied upon by plaintiffs, i.e., 12 NYCRR 23-4.2 (k) and 23-9.2 (b), are not sufficiently specific to support a cause of action under Labor Law 241 (6)" (id. at 1051, citing Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, supra).

Claimant argues that Friot and Webber do not settle the issue of whether 12 NYCRR 23-4.2 (k) can support a section 241 (6) action because the injuries in those cases did not occur in a trench or other excavated location (claimant's memorandum, p 5). The thrust of this argument is that the appellate courts' statements about 12 NYCRR § 23-4.2 (k) are merely dicta.

Statements made by a court but not essential to the decision are dicta and are not to be used as controlling authority (Dougherty v Equitable Life Assur. Society, 266 NY 71, 88 ["No opinion is an authority beyond the point actually decided . . . ."]. Claimant's argument fails here, however, because the statements in Friot and Webber are, in fact, essential to decision of the questions presented (see, Colonial City Traction Co. v. Kingston City R.R. Co., 154 NY 493). The ultimate issue in those cases, and in this case, is whether the defendant can be liable to the claimant/plaintiff in a cause of action based on Labor Law § 241 (6). Such liability can be ruled out for one of a variety of reasons: e.g., because the regulation is not specific enough to support such a cause of action; because the regulation is inapplicable to the events giving rise to the injury; because violation of the regulation was not a proximate cause of the injury.

In Webber (226 AD2d 1050, supra), the Fourth Department specifically affirmed the trial court's ruling that 12 NYCRR 23-4 (k) was not concrete and specific enough to support a Labor Law § 241 (6) claim. The fact that there might have been one or more alternative grounds for rejecting the regulation in that instance does not detract from the fact that the appellate court considered, and specifically decided, the question of legal specificity or sufficiency.

In Friot (240 AD2d 890, supra), the Third Department considered and ruled upon two of the possible issues with respect to 12 NYCRR 23-4 (k)--specificity and applicability--and concluded that the regulation was not sufficiently specific and that, in any event, it did not apply to the facts of the case. Where a court makes two alternative and equally dispositive rulings, one is not reduced to dictum simply because of the presence of the other; an alternative determination may also be given preclusive effect where it was neither casual nor made with less consideration than it would have been if it were the sole issue being tried or considered (O'Connor v G & R Packing Co., 53 NY2d 278, 282, citing to Malloy v Trombley, 50 NY2d 46, 52). Consequently, the rulings of the Third and Fourth Departments in Friot (supra) and Webber (supra) respectively control on this issue, and claimant's third cause of action fails.

Based on the foregoing, the Court grants defendant's motion for summary judgment. The claim is dismissed.


June 30, 2000
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[1]
Labor Law § 200 (1) codifies landowners' and general contractors' common-law duty to maintain a safe workplace; Labor Law § 240 (1), often called the "scaffold law," places a non-delegable duty on owners and contractors to protect workers from certain elevation-related accidents; and Labor Law § 241 (6) imposes on owners and contractors a non-delegable duty to "provide reasonable and adequate protection and safety" for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494).
[2]
See, 12 NYCRR § 23-1.4 (a), which lists the following examples of "general terms": adequate, effective, equal, equivalent, firm, necessary, proper, safe, secure, substantial, sufficient and suitable.