New York State Court of Claims

New York State Court of Claims

LANG v. THE STATE OF NEW YORK, #2002-015-266, Claim No. 103526, Motion Nos. M-64940, CM-65033


Labor Law § 200 and § 241 (6) causes of action dismissed on motion for summary judgment in action for personal injury of highway construction worker struck by truck where owner did not direct or control the work and where sections of industrial code cited are general and non specific.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
Coughlin & Gerhart, LLPBy: Paul J. Sweeney, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kris T. Jackstadt, EsquireMark P. Donohue, Esquire
Third-party defendant's attorney:

Signature date:
July 1, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant's motion for summary judgment seeking dismissal of the claim on the grounds that there are no material issues of fact requiring a trial and that judgment in favor of the defendant on causes of action premised upon Labor Law § § 200, 241 (6) and common law negligence[1] may be determined as a matter of law is granted. The claimant's cross-motion pursuant to CPLR § 3042 (b) for leave to amend the bill of particulars is denied as moot.

The claim seeks to recover money damages for personal injuries sustained by the claimant on September 27, 2000 when he was struck by a truck at a State highway construction site near the intersection of New York State Routes 296 and 23A in the Village of Hunter, Greene County. At the time of the accident claimant was an employee of Bothar Construction, LLC (Bothar) and was engaged in roadway crack sealing work pursuant to a contract between Bothar and the State of New York. Crack sealing work is a multi-step process involving the use of various pieces of equipment including a blow wand, which is a metal pipe connected to an air hose and attached to a truck mounted compressor used to remove material from within the cracks.

The accident occurred at approximately 10:00 a.m. as claimant and his fellow workers were about to begin their workday following a rain delay. Claimant, who was a relatively new employee of Bothar, was assigned by the project supervisor Jeffrey Rinker to operate the blow wand that morning. The length of the blow wand hose was variously estimated at between four feet (claimant), ten to twelve feet (Daniel (Dan) Button the stake truck driver) and twenty-five feet (Jeffrey Rinker). Rinker, the project supervisor, explained that while the hose was probably twenty-five feet in length it was usually draped around an antenna mounted on the front of the stake truck and uncoiled in varying lengths for use by the blow wand operator. It is not clear how much of the hose was actually uncoiled on the morning of the accident but all accounts of the accident indicate that the hose length was sufficient to allow claimant to move some distance away from the truck and return again.

The claimant was unable to describe how the accident happened except to say "I was walking, then I was underneath the tire of the truck" (defendant's exhibit "H", p. 36). Dan Button, the stake truck driver which struck and ran over claimant's legs described the accident as follows (defendant's exhibit "J", pp. 32-33):
Q. Do you recall what you did after you arrived at about six o'clock or so on the morning of September 27th?

A. Yeah, we were getting ready for work, and Jeff told everybody to make sure they were ready to go when it was time to go, and he said let's go; and I jumped in the truck to take off, and George grabbed ahold [sic] of the air wand; after I started moving he ran up in front of the truck to grab the air wand, I stopped the truck, I let him grab the air wand, I made sure he was stretched all the way out with the air hose so he was far enough in front of the truck before I took off again. I could just see his heels and I looked in the mirrors to check, make sure – check for traffic, and then I had a truck parked right in front of me. And I had guard rails on the side of me so I was checking my mirror to make sure that the melter wasn't gonna hit anything. And I only looked away for three to five seconds, and next thing I seen was George's face right up in front of the truck. He was walking at the truck from what I could tell. He just walked into the truck, I don't know exactly for what reason or why, but.
Jeffrey Rinker, the only other known eyewitness, described the incident in the following manner (defendant's exhibit "K", p. 38):
Q. I'm sorry. Could you describe for me what you saw?
A. I motioned the truck to, I just, I waved, told Dan to come on. And, you know, George was in front of the truck. He stretched out his hose, and the truck started moving. And he had the hose probably, I don't know, 10 feet, I don't know, I'm not sure what the length is, and they started pulling out, and George had the hose tight. And I don't know really, I know what happened - - I don't know what happened and just as he - - he - - Dan started pulling out, and George had the hose tight and he started walking towards me. And then all of a sudden he just made a U turn and ran right into the front of the truck.

Q. What direction, if any, was George looking at as - - when you describe him walking back into the truck?

A. He was just looking back that way. I - - I haven't - - have no idea why. It still runs through my head every day.
It is conceded that regardless of the actual mechanics of claimant's accident he was somehow propelled under the wheels of the truck sustaining serious injuries to both legs including a fractured left ankle.

The claim seeks to impose vicarious liability against the defendant as owner of the highway construction site pursuant to Labor Law sections 200, 241 (6) and common-law negligence. The defendant has moved for summary judgment alleging that the State's non-liability may be determined as a matter of law. Claimant opposed the motion and cross-moved for leave of court to amend the bill of particulars.

The Court will first address the cross-motion. As explained in the letter of Mark P. Donohue dated March 6, 2002 (Exhibit D to claimant's cross-motion) the defendant accepted those portions of claimant's supplemental bill of particulars which alleged continuing special damages pursuant to CPLR 3043 (b) as well as those which alleged violation of specific provisions of the Industrial Code and OSHA standards set forth in 29 CFR § 1926.20. The defendant, however, rejected those portions of the supplemental bill which sought to advance new theories of liability (see, para. 4 [i] and [j] of claimant's Exhibit C) and new injuries (see, para. 5) not previously stated in the original bill since such amendments are available subsequent to the filing of the note of issue only by leave of Court (see, CPLR 3042 (b); Leon v First Natl. City Bank, 224 AD2d 497). Claimant's cross-motion is deemed to seek relief with regard to such new injuries and theories of liability only since the other portions of the supplemental bill were accepted by the defendant as noted above. The issues raised in the cross-motion will be addressed in conjunction with the Court's disposition of the defendant's motion for summary judgment.

The Court's examination of the motion for summary judgment begins with the Labor Law § 241 (6) cause of action. "It is axiomatic that to prevail upon such a cause of action, plaintiff must demonstrate that defendants failed to comply with 'specific safety rules and regulations promulgated by the Commissioner of the Department of Labor' (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502)" (Robertson v Little Rapids Corp., 277 AD2d 560, 562). Allegations asserting a violation of portions of the Code which set forth general safety standards in general descriptive terms are not sufficient (see, Ross v Curtis- Palmer Hydro-Electric Co., 81 NY2d 494).

According to the portions of claimant's supplemental bill of particulars which were accepted by the defendant, claimant seeks to predicate liability upon the alleged violation of 12 NYCRR § 23- 1.3 (Application), § 23 - 1.5 (General Responsibility of Employer) and § 23 - 9.2 (b) (General Requirements-Operation). As will be seen, however, even if such allegations could be proven they would not support a finding of negligence against the State as owner of the construction site since each of the cited sections of the Code have been found too general and non-specific to support a cause of action pursuant to Labor Law § 241 (6). Such a determination was made with regard to both section 23 - 1.3 and section 23-1.5(a), (c) (2) and (3) in Williams v White Haven Mem. Park, 227 AD2d 923 in which the Appellate Division, Fourth Department, stated (at 923-924):
Industrial Code (12 NYCRR) § § 23-1.3 and 23-1.5 (a) and (c) (2) and (3) are general provisions and thus do not provide a basis for liability under Labor Law § 241 (6) (see, McGrath v Lake Tree Vil. Assocs., 216 AD2d 877; Stairs v State St. Assocs., 206 AD2d 817, 818).
Section 23-1.5 of the Industrial Code in its entirety was likewise found to contain general provisions insufficient to support liability under section 241 (6) in McGrath v Lake Tree Vil. Assocs., (216 AD2d 877). In that decision the Appellate Division (at p. 878) held that section 23-1.5 merely "restates the common-law duty and is not a basis for liability (see, Stairs v State St. Assocs., [206 AD2d 817, 818])." A similar conclusion was reached by the Third Department in Schwab v A.J. Martini, Inc, (288 AD2d 654).

Finally, section 23-9.2(b) has also been found not to be sufficiently specific to support a cause of action under Labor Law § 241 (6) (see, Webber v City of Dunkirk, 226 AD2d 1050, 1051). In Fairchild v Construction Equip. Co., 288 AD2d 665, 667 - 668 the Third Department held that:
12 NYCRR 23-9.2, which encompasses the general requirements for power-operated equipment, has been found to merely set forth general safety standards and not the concrete specification required to support plaintiffs' claimed violations of the nondelegable duty imposed upon owners and general contractors by Labor Law § 241 (6) (see, Moffett v Harrison & Burrowes Bridge Contrs., 266 AD2d 652, 654; Armer v General Elec. Co., 241 AD2d 581, 583, lv denied 90 NY2d 812).
Claimant's attempt to assert a Labor Law § 241 (6) cause of action based upon an alleged violation of standards created by the Occupational Safety and Health Administration (OSHA) and set forth at 29 C.F.R. § 1926.20 also fails. In the first instance, OSHA imposes its standards on employers and not owners as the Appellate Division, Fourth Department, recognized in McGrath v Lake Tree Vil. Assocs., supra, where the Court disallowed an attempt by plaintiff to fashion a Labor Law 241 (6) cause of action based upon an asserted OSHA violation. The Court of Appeals made a similar observation regarding OSHA standards not being a proper predicate for a Labor Law § 241 (6) claim in a footnote contained in Rizzuto v L. A. Wenger Contracting Co., (91 NY2d 343, 350; see also, Irwin v St. Joseph's Intercommunity Hosp., 236 AD2d 123).

In addition to the above noted alleged violations of the Industrial Code and OSHA standards claimant, through his expert (Ernest J. Gailor), argues that the defendant breached commonly accepted industry standards which claimant's expert traced to two documents. Those documents were identified both by Gailor and in paragraph 18 of the supplemental bill of particulars as the New York State Department of Transportation "Best Practice" [P]olicy and the United States Department of Health and Human Services National Institute for Occupational Safety and Health's publication entitled Building Safer Highway Work Zones. As pointed out by defense counsel, the latter of these documents was not published until April 2001, more than six months after the accident. Thus, even if the document could be found to contain industry standards such standards would not have been applicable to the accident and therefore may not be considered by the Court. Furthermore, the "Best Practice" policy referred to by Gailor is not a New York State Department of Transportation policy statement but is instead a publication of the Office of Transportation Operations, Federal Highway Administration. Its proper title is The Work Zone Best Practices Guidebook.

More importantly, each of these documents contains a disclaimer as to its contents. The "Best Practices" guidebook notes that it is a resource and states "[t]his report does not constitute a standard, specification or regulation." The National Institute for Occupational Safety and Health publication goes so far as to declare at page 3 that "the document provides a listing of interventions from which contractors, contracting agencies and other entities may choose those most appropriate to their situations and needs. Readers should not view these prevention measures as official NIOSH recommendations." Its contents are obviously not rules or regulations binding on the defendant even if it had been published prior to the date of the accident. Neither of these documents can be said to establish an industry standard providing a basis for the imposition of liability upon the defendant under either Labor Law § 241 (6) or common law negligence or to create a material issue of fact in this regard (see, Ruggiero v Waldbaums Supermarkets, 242 AD2d 268).

Finally, claimant's supplemental bill of particulars asserts that "17 NYCRR 2300.4C" provides a basis for the imposition of liability against the defendant pursuant to Labor Law sections 200 and 241 (6). Since the Court has determined that no such section exists within Title 17 of the NYCRR it will consider the citation to refer to the alleged failure to file a traffic control plan pursuant to 17 NYCRR 300.4 (c) (see, affidavit of Ernest J. Gailor, paragraph 19).

First, as to Labor Law § 241 (6), the cited section may not provide a basis for liability as a matter of law as it is not a provision of the Industrial Code which is found at 12 NYCRR 23-1, et seq.

17 NYCRR 300.4 (c) provides:
(c) Traffic control plan. Consideration should be given to the preparation of a traffic control plan specifically for a highway work project, to assure systematic adherence to provisions of this manual, and to provide workers with clear and detailed instructions.
Secondly, section 300.4 (c) does not require the preparation of a traffic control plan let alone that such a plan be filed as asserted by claimant's expert. As such, the failure to prepare a plan, even if relevant to the circumstances herein, may not act as the basis for a finding of negligence under Labor Law section 200.

Claimant's Labor Law § 200 and common law negligence claims against the defendant fair no better. It is well settled that an owner of property cannot be held liable under Labor Law § 200 when the claimant's injury results from the method of work prescribed by the contractor or results from equipment supplied by the contractor if the owner did not exercise supervisory control over the injured worker (Comes v New York State Elec. & Gas, 82 NY2d 876; Bailey v Hammedani, 241 AD2d 645; Blessinger v Estee Lauder Cos., 271 AD2d 343). Supervisory control must be more than general oversight of the timing and quality of the work (Gonzalez v United Parcel Serv., 249 AD2d 210; Riccio v Shaker Pine, 262 AD2d 746). It has further been held that the owner's representative's authority to stop the work if a contractor fails to address a safety concern is not sufficient to establish supervisory control for purposes of imposing liability pursuant to Labor Law § 200 or common law negligence (Ricotta v Praxis Biologics, 265 AD2d 878).

Claimant's own testimony at his examination before trial makes clear that only Bothar's supervisor Jeffrey Rinker controlled and directed his work and that of his co-workers. This fact is also supported by the testimony of Rinker, Dan Button and even the State Inspector himself (see, defendant's Exhibit "I"). All of the witnesses whose testimony was presented agree that while the State Inspector expressed some concern about signage and traffic cone placement at the site to regulate traffic flow he never directed or controlled claimant's actions or those of other Bothar employees as they prepared for or conducted their crack sealing work at the construction site. Without proof of supervision or control on the part of the defendant's representative as outlined in the above cited case law liability against the State as construction site owner under § 200 of the Labor Law or principles of common law negligence cannot be found.

Claimant's cross-motion seeking leave to file and serve an amended bill of particulars is denied The defendant's motion to dismiss the claim is granted and the claim is dismissed.

July 1, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated March 29, 2002;
  2. Affidavit of Mark P. Donohue sworn to March 29, 2002, with exhibits;
  3. Affidavit in opposition of Paul J. Sweeney sworn to April 10, 2002, with exhibits;
  4. Affidavit in opposition of Ernest J. Gailor sworn to April 9, 2002;
  5. Notice of cross-motion dated April 10, 2002;
  6. Affidavit of Paul J. Sweeney sworn to April 10, 2002, with exhibits;
  7. Reply affidavit of Mark P. Donohue sworn to April 16, 2002.

[1]Although the claim alleged a cause of action under Labor Law § 240 claimant's attorney conceded on the motion that defendant did not violate Labor Law § 240 (see, Paul J. Sweeney's affidavit in opposition par. 3). Such cause of action is deemed withdrawn.