New York State Court of Claims

New York State Court of Claims

ROLEWICZ v. THE STATE OF NEW YORK, #2009-009-010, Claim No. 111401, Motion No. M-75408


Defendant’s motion for summary judgment dismissing the claim, which is based upon alleged violations of Labor Law § 200 and § 241(6), was granted in part and denied in part.

Case Information

1 1.
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
BY: Patricia A. Lynn-Ford, Esq.,Of Counsel.
Defendant’s attorney:
Attorney General
Kevin R. Van Duser, Esq.,Of Counsel.
Third-party defendant’s attorney:

Signature date:
April 6, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has brought this motion seeking an order of summary judgment dismissing this claim which is based upon allegations of common law negligence and violations of Labor Law § 200 and § 241(6).

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit, with Exhibits 1,2

Memorandum of Law 3

Affidavit in Opposition, with Exhibits 4

Memorandum of Law in Opposition 5

Affidavit (Reply) 6

Reply Memorandum of Law 7

In his claim, claimant seeks damages for personal injuries suffered by him in a construction site accident that occurred August 22, 2005 on the State University of New York College at Cortland Campus (SUNY Cortland). At the time, claimant was an employee of Marcellus Construction Company, Inc. (Marcellus Construction), which had contracted with the defendant for a steam tunnel replacement project on the SUNY Cortland campus. Claimant suffered burn injuries, and ultimately an amputation of his left great toe, when he was electrocuted while jackhammering in an excavation ditch, when his jackhammer came into contact with underground high-voltage electrical lines.

The essential facts surrounding this accident are undisputed. As stated above, Marcellus Construction entered into a contract with SUNY Cortland to replace an underground steam tunnel that ran through the campus. During both the project planning process as well as the excavation work itself, all interested parties were aware that the underground tunnel would run beneath existing underground utilities, and that it would be necessary to excavate beneath those lines. The utilities, which contained high-voltage electrical lines, were encased in a conduit consisting of material called “orangeburg”. These lines were then further encased in a concrete duct-bank, consisting of several feet of concrete.

Although all parties were aware that the duct-bank contained high-voltage electrical wires, there were no specific crossing plans set forth in the project documents or specifications, and there is no indication that any such plans were discussed at regular site meetings, other than the fact that the new steam tunnel was going to be constructed to run beneath the existing underground utilities. Furthermore, there were no steps taken by the defendant to de-energize these lines when a duct-bank was encountered, nor were any other specific precautions taken in lieu of cutting the power.

On the day of the accident, employees of Marcellus Construction had dug down to the duct-bank, exposing the concrete duct-bank on its surface and along its sides, to a total depth of approximately 16 feet and a width of 10 feet. The top of the concrete duct-bank was approximately 8 feet beneath ground level, and the duct-bank was approximately 8 feet in width. The next stage required Marcellus Construction to excavate beneath the concrete duct-bank to create sufficient room for the new steam tunnel to cross underneath.

Prior to doing so, however, Marcellus Construction, through claimant’s foreman, Kenneth Dutcher, directed claimant to jackhammer away the concrete duct-bank in which the high-voltage electrical wires (also encased in the “orangeburg” conduit) in order to decrease the weight of this duct-bank under which the steam tunnel had to pass. As he was jackhammering the concrete, claimant penetrated the “orangeburg” conduit and made contact with the high-voltage electrical wires, causing his electrocution from which he suffered his burn injuries and the resulting eventual loss of his left great toe.

As he stated in his deposition testimony, Mr. Dutcher, claimant’s foreman, assumed that the electrical wire had been encased in a steel conduit, rather than the “orangeburg”, based on his observation of a nearby, similar electrical transmission line. At the time of the accident, therefore, Mr. Dutcher did not know that the line on which claimant was jackhammering was encased in the “orangeburg” conduit, and not the steel conduit. The “orangeburg” conduit composed of a tile-like substance, can be easily penetrated by a jackhammer, unlike a steel conduit.

Defendant now moves to dismiss all of the causes of action (common law negligence and the violations of Labor Law § 200 and § 241[6]) asserted in this claim.
Labor Law § 200 is a codification of the common law general duty which requires contractors and owners to provide “reasonable and adequate protection” to persons employed and working on their premises. Liability can be imposed under Labor Law § 200 only upon a finding that the party charged with violating the section was negligent. In such cases, a property owner may be held liable only where the claimant’s injuries resulted from a dangerous condition at the work site, rather than as a result of the manner in which the work was performed, and then only if the owner exercised supervision and control over the work performed at the site or had actual or constructive notice of the dangerous condition (Comes v New York State Electric and Gas Corp., 82 NY2d 876; Kobeszko v Lyden Realty Investors, 289 AD2d 535; Love v New York State Thruway Auth., 17 AD3d 1000). In this particular matter, all of the knowledgeable witnesses who were deposed (including employees of both Marcellus Construction and the defendant) consistently stated that defendant did not have any supervisory authority over the work performed by Marcellus Construction on this project. Additionally, there is no indication that the employees of the defendant performed any of the actual construction work, nor did any of those employees exercise any supervisory authority with regard to actual performance of the work involved or with regard to any safety matters.

Although claimant does not strenuously contend that the defendant exercised supervisory authority over the work to be performed by Marcellus Construction, he does contend that the defendant should be held liable under § 200 and under the common law since the defendant had actual notice of an allegedly unsafe condition on the property. Specifically, claimant contends that the defendant was certainly well aware of the underground high-voltage electrical wires in the immediate area of the steam tunnel project, and further that these electrical wires were encased in “orangeburg”, which could be easily penetrated by a jackhammer. While all of these allegations are certainly true, it is equally obvious and apparent that these high-voltage electrical wires were also encased in several feet of concrete and only became exposed when the claimant, at the direction of Marcellus Construction, jackhammered that protective concrete away.

There is no indication that any of the wires were exposed, or became exposed during the actual excavation for the steam tunnel project. These high voltage wires remained safely encased in the concrete, until the decision was made by Marcellus Construction to jackhammer that concrete away, even though Marcellus Construction and claimant were aware that high-voltage wires were encased in this concrete duct-bank. In other words, this condition on the property was not unsafe until the actions taken by Marcellus Construction (and claimant) created the dangerous condition. The Court therefore must find that the condition which caused claimant’s injuries arose solely as a result of the contractor’s methods over which the defendant exercised no supervisory control. As a result, claimant’s common law negligence cause of action, as well as his cause of action asserting a violation of Labor Law § 200, must both be dismissed (Comes v New York State Electric & Gas Corp., supra; Lombardi v Stout, 80 NY2d 290; Murray v Lancaster Motorsports, Inc., 27 AD3d 1193).
LABOR LAW § 241(6)
Labor Law § 241(6) provides that contractors and owners engaged in construction, excavation, or demolition work, regardless of direction and control, have a non-delegable duty to provide reasonable protection to those persons employed on the premises. A cause of action under this section, however, must be based upon a violation of a rule or regulation of the Commissioner of Labor that sets out a specific safety standard (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494).

In this case, claimant, in his Verified Bill of Particulars, claimed that defendant violated 12 NYCRR 23-1.13. In his response to this motion, however, claimant has alleged, apparently for the first time, violations of several specific sub-sections of this regulation. As set forth in his response, claimant has alleged violations of § 23-1.13(b)(3); § 23-1.13(b)(4); § 23-1.13(b)(8); and § 23-1.13(d)(3).

Initially, defendant objects to the assertion of these alleged specific violations in the response papers to its motion. However, in situations where the predicate facts have been fully pleaded, leave to amend pleadings in order to identify specific regulations that were allegedly violated is freely given, even in situations where a note of issue and certificate of readiness has already been filed (Ellis v J.M.G., Inc., 31 AD3d 1220). Accordingly, the Court finds that claimant’s initial assertion of the specific sections of the industrial code allegedly violated at this point in time is not fatal to its § 241(6) cause of action.

Section 23-1.13(b)(3) requires that all electrical hazards be identified, with warnings posted, when these hazards exist in close proximity to the work being performed.

The deposition testimony submitted with defendant’s motion established, without contradiction, that the Underground Facilities Protection Organization (UFPO) was contacted prior to commencement of the project, and that the utilities were all marked prior to work being performed. Additionally, the existence and location of the duct-bank on which claimant was injured was known to all of the involved Marcellus Construction workers. Specifically, claimant and his foreman were both well aware that this concrete duct-bank contained electrical wires when they began their work. Based on the foregoing, the Court finds that this section was not violated and does not provide a basis of liability against the defendant.

Similarly, § 23-1.13(b)(8) requires that any wiring which is found to have cracked or deteriorated insulation must be immediately removed from service and discarded. In this case, there is no indication whatsoever that there was any problem with the insulation (which was encased in an “orangeburg” conduit and then further encased in several feet of concrete), or that it was defective or deteriorated in any manner, until such time that claimant jackhammered the concrete. This cited provision, therefore, is inapplicable to the facts of this case and cannot be used as a basis of liability against the defendant.

Section 23-1.13(b)(4) and Section 23-1.13(d)(3) both require certain protections for workers who are performing work or operating equipment in close proximity to electrical hazards. These provisions potentially could be applicable to the facts of this case. Since all of the specific provisions were asserted for the first time in claimant’s response to this motion, defendant has requested the opportunity to conduct additional discovery to examine the jackhammer used by claimant and to address these alleged violations of the industrial code.

The Court grants this request, and this aspect of defendant’s motion to dismiss is therefore denied, without prejudice, pending additional discovery. Defendant may therefore commence another motion to dismiss these remaining aspects of claimant’s cause of action based upon alleged violations of Labor Law § 241(6) at that time, after it has completed any requested additional discovery.

At that time, the Court will also consider defendant’s remaining contention that claimant’s actions were the sole proximate cause of this accident.

Based upon the above, therefore, it is

ORDERED, that defendant’s Motion No. M- 75408 is granted, in part, and claimant’s causes of action based upon common law negligence and a violation of Labor Law § 200 are both hereby dismissed; and it is further

ORDERED, that the aspect of defendant’s motion to dismiss claimant’s cause of action alleging a violation of Labor Law § 241(6) is granted, in part, and denied, in part, without prejudice, all in accordance with the foregoing.

April 6, 2009
Syracuse, New York

Judge of the Court of Claims