The following papers were read and considered on Defendants' motion M-70298 for
1. Defendants' Notice of Motion filed June 20, 2005;
2. Supporting affirmation of Ralph Cessario, Esq., dated June 15, 2005, with
3. Supporting affidavit of John P. Coniglio, PhD., C.S.P., C.H.M.M., R.P.I.H.,
C.H.C.M., sworn to May 26, 2005, with annexed exhibit;
4. Defendants' supporting memorandum of law dated June 15, 2005;
5. Opposing affirmation of William D. Murphy, Esq., dated September 7, 2005,
with annexed exhibits;
6. Claimants' opposing memorandum of law dated September 7, 2005;
7. Reply affirmation of Ralph Cessario, Esq., dated October 4, 2005.
Filed papers: Claim filed December 27, 1999 and Answer filed March 13,
Claimant John A. Kiebzak
alleges that he was
injured on September 29, 1999, at approximately 7:45
, when he was slammed against the back of the cab of a John Deere 510 rubber
tired loader/backhoe (loader/backhoe) he was operating to pick up broken
concrete/blacktop left on the shoulder of the road. Claimant was employed by
Oakgrove Construction (Oakgrove), the general contractor for the reconstruction
of the Niagara section of I-190 from milepost 10 to milepost 14. Oakgrove owned
or leased the loader/backhoe Claimant was using and maintained it (May
transcript, Defendants' Exhibit F, p. 27). Claimant does not allege that the
equipment was defective. Rather, he alleges that his injuries were caused by a
lightning strike (Beals transcript, Defendants' Exhibit E, pp. 17, 18,
Claimant commenced work some time between 2:00 and 3:00
on September 29, 1999. The weather was nice. At dusk, the weather changed and it
began to rain and grow windy. When it started to rain, Claimant did not hear any
thunder. Just before the incident, Claimant noticed some flashes in the sky a
distance away (Kiebzak transcript, Defendants' Exhibit D, pp. 13,18, 26, 27).
According to Donald Beals (Beals), Oakgrove's foreman and Claimant's immediate
supervisor, flashes could be seen over Lake Erie to the west of the construction
site (Beals transcript, Claimants' Exhibit C, pp. 24, 25).
Claimants surmise that the loader/backhoe was struck by lightning. There is no
evidence, however, that the Claimant or the equipment he was operating was
struck. Neither Claimant nor Beals testified to seeing lightning strike the
equipment and there is no evidence of arcing or of any damage to the
loader/backhoe which would be expected if the equipment had been struck.
Moreover, Beals testified that the loader/backhoe did not come in contact with
any power lines or with any electric wires or devices (Beals transcript,
Defendants' Exhibit E, pp. 29, 31).
Defendants now move pursuant to CPLR §3212 for summary judgment dismissing
the claim. Initially, Defendants correctly note that the only proper Defendant
is the New York State Thruway Authority (Thruway Authority). The Thruway
Authority is an independent and autonomous public benefit corporation which is
solely responsible for construction and maintenance of the New York State
Thruway (Matter of Plumbing, Heating, Piping & Air Conditioning Contrs.
Assn., Inc. v New York State Thruway Auth.
, 5 NY2d 420 ). The State
does not retain any traditional ownership interest in property transferred to
the jurisdiction of the Thruway Authority and there is no nexus between the
State's partial ownership interest and the work projects performed on the
property. Accordingly, the State of New York and the New York State Department
of Transportation are not proper defendants in this action and the claim as
against them is dismissed (see Reynolds v State of New York
, UID No.
2001-028-0537, Sise, J., Claim No. 101868, Motion Nos. M-62810, CM-63045,
decided June 7, 2001).
Claimants allege causes of action under common law negligence, for alleged
violations of Labor Law §§ 200 and 241(6), and for violations of
unspecified regulations of the United States Occupational Safety and Health Act
Summary judgment is a drastic remedy which should not be granted where there is
any doubt as to the existence of a material issue of fact (Fisons Corp. v
Sweeteners Plus, Inc., 258 AD2d 872 ).The Court must review the
evidence in a light most favorable to the non-moving party when determining if
an issue exists. Summary judgment will only be granted if movant provides
evidentiary proof to establish that there are no questions of fact (Winegrad
v New York Univ. Med. Ctr., 64 NY2d 851 ). Once the movant has
demonstrated a prima facie entitlement to summary judgment, the burden shifts to
the non-moving party to submit evidentiary proof sufficient to establish the
existence of a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d
Section 241(6) of the Labor Law imposes a nondelegable duty upon owners and
contractors to provide workers with reasonable and adequate protection. In order
to establish a proper cause of action under § 241(6), Claimants must allege
and establish the violation of a safety regulation which sets forth a specific
as opposed to a general safety standard. Claimants must also demonstrate how the
alleged violation of the specific regulation cited was the proximate cause of
the injuries (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494
At paragraph 4 of the opposing affirmation of Claimants' counsel, William D.
Murphy, Esq., dated September 7, 2005, it is stated:
"The Claimant will concede that there is no violation
of Labor Law Section 241(6), as there is no industrial code or
regulation that speaks of lightning strikes."
Nor may Claimants base a § 241(6) cause of action on an alleged violation
of any rule or standard created by the Occupational Safety and Health
Administration (OSHA) as set forth in 29 C.F.R. § 1926.20. OSHA addresses
the relationship between employers and employees and imposes its standards on
employers. It does not impose a nondelegable duty on an owner or a contractor
and it may not be used as the basis of a Labor Law § 241 (6) cause of
action (McGrath v Lake Tree Vil. Assocs., 216 AD2d 877 ;
Pellescki v City of Rochester, 198 AD2d 762 , lv denied 83
NY2d 752 ). Because Claimants have admitted that there are no Industrial
Code regulations that address lightning and because OSHA regulations may not be
relied upon, the Court grants the Thruway Authority's motion for summary
judgment and dismisses the Labor Law § 241(6) cause of action.
The only remaining cause of action against the Thruway Authority is based on
Labor Law § 200 which is a codification of common law negligence. It
imposes on owners and contractors a duty to provide workers with a safe place to
work (Comes v New York State Elec. & Gas Corp., 82 NY2d 876 ).
As a landowner, the Thruway Authority may only be held liable if it exercised
supervisory control over the work which caused the Claimant's injuries
(Kazmierczak v Town of Clarence, 286 AD2d 955 ; Rapp v Zandri
Constr. Corp., 165 AD2d 639 ), or if there was a dangerous condition
on the owner's property which caused the injuries and of which the landowner had
notice (Blackburn v Eastman Kodak Co., 256 AD2d 1123 ).
The Defendant has come forward with evidence to establish that it did not have
control over the manner or method of the work being performed by the Claimant at
the time of this incident. It is established that the Claimant reported to Beals
(Kiebzak transcript, Defendant's Exhibit D, pp.17-18), and that he received all
direction, supervision and instruction from Beals, the Oakgrove foreman (Beals
transcript, Defendants' Exhibit E, p. 14). In fact, Beals was leaning into the
cab of the loader/backhoe Claimant was operating to give instructions when, in
the "snap of a finger" there was a flash (Beals transcript, Defendant's Exhibit
E, pp. 26, 27, 31). Beals saw the flash, but did not see lightning hit the
loader/backhoe (Beals transcript, Defendants' Exhibit E, p.29).
Claimants attempt to raise a question of fact by arguing that the Thruway
Authority by and through DeLeuw, Cather & Company of NY, Inc. (DeLeuw
Cather) had the authority to control the contractor's work at the job site. In
support, Claimants reference several sections of the agreement under which
DeLeuw Cather was to provide "Construction Inspection" services for the project
(Claimants' Exhibit B), and the deposition testimony of Beals (Claimants'
Exhibit C and Defendants' Exhibit E).
Nothing in the DeLeuw Cather contract gave it the right to control the manner
and method of work being performed by Claimant at the time of the incident, and
there is no evidence that anyone from the Thruway Authority or from DeLeuw
Cather gave any instruction to Beals or to Claimant as to the method or manner
of picking up the broken concrete or told them what equipment to use (Beals
transcript, Defendants' Exhibit E, p. 52). In addition, according to the
deposition testimony of resident senior engineer, Paul S. Lorenzo, DeLeuw Cather
merely provided construction management services and was responsible only for
monitoring the quality of the contractor's work and its conformance with the
specifications (Lorenzo transcript, Defendants' Exhibit G, pp. 13, 15, and 24).
The general authority to control compliance with contract specifications or with
safety procedures is insufficient to impose liability under section 200 of the
Labor Law (Kazmierczak v Town of Clarence, 286 AD2d at 956; D'Antuono
v Goodyear Tire & Rubber Co. Chem. Div., 231 AD2d 955 ). Here,
there is no evidence that DeLeuw Cather, much less the Thruway Authority, had
the requisite authority to control the work. In fact, there is no doubt that
Beals was in the process of giving Claimant further instruction at the time of
the incident. The daily presence of the owner's construction manager at the work
site to check on the progress of the work does not constitute the control or
supervision necessary to establish liability pursuant to § 200 of the Labor
Law or under common law negligence (Cooper v Sonwil Distrib. Ctr., Inc.,
15 AD3d 878 ).
As a property owner, the Thruway Authority may also be held liable pursuant to
§ 200 of the Labor Law and common law negligence if there was a dangerous
defect in the property of which the Thruway Authority was aware. Claimant's
counsel argues that the dangerous condition was the lightning strike. A
lightning strike, however, does not constitute a defect or dangerous condition
on the premises for which the Thruway Authority as owner may be held liable
(see generally Hosler v Northern Eagle Beverages, Inc., 15 AD3d 925
Neither Claimant nor foreman Beals communicated with anyone from the Thruway
Authority, DeLeuw Cather or Oakgrove regarding the weather conditions and there
was no evidence submitted of a job ever being stopped because of lightning.
While there was testimony that heavy rain could affect the pouring of concrete,
there was also testimony that neither rain nor lightning affected the work
Claimant was performing at the time of the incident. Moreover, the expert
affidavit of John P. Coniglio established that it was common practice to
continue working when there was lightning.
Claimants surmise that the boom on the back of the loader/backhoe acted like a
lightning rod and that the Thruway Authority and/or DeLeuw Cather were aware of
the storm and had the authority to stop the work. The problem with Claimants'
argument is that it is based on surmise and conjecture. While personnel of
Oakgrove had the authority to stop work due to weather (May transcript,
Defendant's Exhibit F, pp. 51, 56), nothing in the DeLeuw Cather contract gave
it the authority to shut down operations due to weather. Moreover, while there
was testimony and daily reports indicating rain in the afternoon or evening,
there is no evidence of lightning in the immediate vicinity of Claimant's work
until the strike that allegedly caused his injuries. In addition, there is no
evidence that representatives of the Thruway Authority or DeLeuw Cather were any
where near the area where Claimant was working at the time of the incident or
had any knowledge that the flashes seen off in the distance over the Lake
immediately before the incident would suddenly strike near where Claimant was
working, within sufficient time to decide to stop work. Finally, as noted above,
there is no evidence that the loader/backhoe was actually struck by lightning.
A party opposing a summary judgment motion must come forward and "produce
evidentiary proof in admissible form sufficient to require a trial of material
questions of fact on which he rests his claim ... mere conclusions,
expressions of hope or unsubstantiated allegations or assertions are
insufficient" to defeat a summary judgment motion (Amatulli v Delhi Constr.
Corp., 77 NY2d 525, 533 , citing Zuckerman v City of New York,
49 NY2d 557, 562 ).
If the Claimant's injuries were caused by a lightning strike as alleged, then
the incident resulted from an Act of God without human intervention (see
generally Connelly v State of New York, 44 NYS2d 331 ). In the
alternative, if Beals is correct that the loader/backhoe acted as a lightning
rod, then the incident resulted from his decision to continue operating Oakgrove
equipment during a rainstorm, and the Thruway Authority may not be held liable
under Labor Law § 200 or common law negligence as it exercised no control
over the contractor's methods or equipment (see Ross v Curtis-Palmer
Hydro-Elec. Co., 81 NY2d at 505; Lombardi v Stout, 80 NY2d 290
). Accordingly, it is
ORDERED, that Defendants' Motion for summary judgment M-70298 is granted and it
ORDERED, that Claim No. 101667 be dismissed.
The Clerk of the Court is directed to close the file.