This is Defendant's motion and Claimant's cross-motion for summary judgment.
Claimant Wayne Hallock alleges negligence stemming from an April 3, 1998
incident which occurred at a bridge reconstruction project on Route 16 in Olean,
New York. On that day, Mr. Hallock was working for Frontier Asphalt &
Paving Inc., a contractor for the State of New York. According to Claimant,
just prior to the accident, he was working on top of a cement piling, trying to
remove boards which had been used to create a form for the piling prior to
pouring the cement. At this point in time, the cement had hardened and Claimant
was removing the planking from the form. On one side, the piling was at ground
level. On the other side, the piling formed the wall of a trench described by
Claimant as approximately four feet deep. Claimant alleges that he was on his
hands and knees removing planks (his feet toward the trench and his head toward
ground level) when, as he pulled on a plank, the plank broke causing him to fall
backwards into the trench. At the time of the accident, Claimant was allegedly
working alone and, therefore, the accident was unwitnessed. Claimant alleges
that he injured his head and back as a result of this incident and that
Defendant is liable for his injuries, pursuant to the provisions of Labor Law
§§200, 241(6) and 240(1).
In its motion, Defendant argues that none of the three labor law sections
allegedly violated by Defendant apply in this matter. Claimant, on the other
hand, asserts in his cross-motion that he is entitled to summary judgment on his
Labor Law §240(1) claim. For the reasons that follow, I find that
Defendant is entitled to partial summary judgment relating to Claimant's
§200 and §241(6) claims, but that questions of fact exist which
preclude summary judgment in favor of either party with regard to the
Labor Law §§ 200 and 241(6)
Defendant posits that the State took no part in the direction, supervision, or
control of the work that Claimant was allegedly involved in at the time of the
accident. For this reason, it argues that it cannot have violated §200 as
such supervision and control is a necessary element of a cause of action under
this section. Claimant apparently concedes this point. In any event, he has
come forward with neither a contrary interpretation of the law, nor evidence
that would indicate that the State had any supervisory role in Claimant's work.
Labor Law §200 is a codification of the common law duty of a land owner to
provide and maintain a safe place to work. Generally, in order to establish
liability under this section, proof that the land owner exercised supervisory
control over the work which caused the injury is required (Comes v New York
State Electric and Gas Corporation, 82 NY2d 876; Rapp v Zandri Constr.
Corp., 165 AD2d 639). Claimant has failed to show that Defendant had
any supervisory control over the work he was performing at the time of his
injury. The Labor Law §200 cause of action must be dismissed.
Defendant also argues that the State cannot be held liable under §241(6)
as that section requires the violation of an underlying regulation which
identifies a specific standard of care owed to an employee. Defendant maintains
that Claimant has failed to identify any such specific regulation. Again
Claimant does not dispute Defendant's statement of the law or facts concerning
Unlike §200, Labor Law §241(6) does not require an element of
supervisory control for liability to attach. Instead, §241(6) imposes a
non-delegable duty upon owners and contractors to provide reasonable and
adequate protection and safety to workers. However, in order to establish a
proper claim under this section, a claimant must cite a violation of a specific
regulation. Moreover, that regulation must set forth a specific safety
standard, as opposed to a generic, general safety standard. Claimant must also
demonstrate that the violation of this regulation was the proximate cause of his
injury (Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, at 505).
Claimant has failed to meet this burden and Defendant is entitled to summary
judgment on Claimant's Labor Law §241(6) cause of action.
Labor Law §240(1)
Claimant's Labor Law §240(1) cause of action is the primary area of
dispute between the parties, with each seeking summary judgment. However, I
find that questions of fact preclude summary judgment in favor of either party.
Claimant's cross-motion must be denied as his alleged fall was unwitnessed and
Defendant legitimately disputes the existence and causation of the injuries
allegedly sustained. For this reason alone, summary judgment in favor of
Claimant is inappropriate (see, Abramo v Pepsi-Cola Buffalo Bottling Co.,
224 AD2d 980).
Additionally, questions regarding the work site preclude summary judgment for
either party. Claimant alleges that, since he was working four feet above the
floor of the trench, his was the type of work that falls under the scope of
Labor Law §240(1). Defendant, however, alleges that Claimant was working
at ground level and for this reason §240 does not apply. While it is true
that the Appellate Division Fourth Department has held that falls into holes
from ground level are not covered by §240, generally however, the cases in
which they have done so involve holes or trenches that were not part of the
"work site" (see, Johnson v City of Corning, 269 AD2d 865; Duke v
Eastman Kodak Co. 248 AD2d 990; Riley v Stickl Construction Corp.,
242 AD2d 936). In this instance, I find that questions exist as to whether the
trench into which Claimant fell was a part of the work site and, if so, whether
the work that he was performing upon the form exposed him to the type of gravity
related risks covered by the statute (see Hoffmeister v Oaktree Homes,
Inc., 206 AD2d 921; Allen v City of Buffalo, 161 AD2d 1134).
Additionally, Claimant and Defendant dispute whether or not Claimant was even
employed (and thereby protected by the Labor Law) at the time of his accident.
Both parties agree that, prior to his accident that morning, Claimant and his
immediate supervisor, Gary Quillin, had quarreled and Claimant was told to pack
up his tools and leave the work site. It is also undisputed that Mr. Quillin
had the authority to fire Claimant. Defendant argues that, because Claimant's
employment had been terminated prior to the occurrence of his alleged accident,
he is not protected by the provisions of the Labor Law.
However, rather than leaving after his conversation with Quillin, Claimant
decided to discuss the matter with Quillin's supervisor who was expected at the
work site shortly thereafter. Claimant continued to work, or at least to stay
on and around the construction site, with the knowledge of Mr. Quillin.
According to Claimant, he spoke with Michael Halloran, the "overall supervisor"
and a person superior to Quillin. Claimant alleges that Halloran permitted him
to continue working and in fact assigned certain work to him after the alleged
termination by Quillin. Claimant also points to the fact that his time sheet
for the day of the accident indicates that he worked through the time of the
accident and that he was paid for this time by Frontier Asphalt as evidence that
his employment was not terminated prior to the accident. I find that the papers
before me demonstrate the existence of a question of fact as to whether or not
Claimant had been terminated prior to his accident.
Based upon the foregoing it is:
ORDERED, that Defendant's motion for summary judgment is granted in part
in that Claimant's causes of action based upon Labor Law §200 and
§241(6) are dismissed, that portion of the Defendant's motion seeking
summary judgment on Claimant's Labor Law §240(1) cause of action is denied;
and it is further
ORDERED, that Claimant's cross-motion for summary judgment on his Labor
Law §240(1) cause of action is denied.