Claimant, who slipped and fell on the very snow and ice he was charged with removing does not have viable cause of action under Labor Law. Defendant's motion for summary judgment is granted and Claimant's motion for partial summary judgment on liability is denied.
|Claimant(s):||KENNETH J. HECKER|
|Claimant short name:||HECKER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||RENÉE FORGENSI MINARIK|
|Claimant's attorney:||MODICA & ASSOCIATES, ATTORNEYS, PLLC
BY: STEVEN V. MODICA, ESQ. and JEFFREY A. VAISEY, ESQ.
|Defendant's attorney:||GOLDBERG SEGALLA LLP
BY: RICHARD C. BRISTER, ESQ.
|Third-party defendant's attorney:|
|Signature date:||September 20, 2010|
|See also (multicaptioned case)|
In addition to hearing oral argument from counsel on June 15, 2010, the following papers, numbered 1 to 8, were read on motion by Defendant for summary judgment and on cross-motion by Claimant for partial summary judgment:
1) Defendant's Notice of Motion (M-78027), filed March 12, 2010;
2) Affirmation of Richard C. Brister, Esq., dated March 10, 2010, with attached exhibits;
3) Defendant's Memorandum of Law, dated March 10, 2009 [sic];
4) Claimant's Notice of Cross-Motion (CM-78204), filed May 5, 2010;
5) Undated Affirmation of Steven V. Modica, Esq., with attached exhibits;
6) Claimant's Memorandum of Law, dated May 4, 2010;
7) Reply Affirmation of Richard C. Brister, Esq., dated June _ 2009 [sic], with attached exhibit;
8) Filed Documents: Claim and Verified Answer.
Claimant, Kenneth J. Hecker, was injured on December 19, 2007, when he slipped and fell in snow and ice that he was shoveling in the course of his employment with Hohl Industrial Services, Inc. ("Hohl"). Hohl had contracted with the New York State Department of Transportation ("DOT") to renovate the Washington Street Lift Bridge ("bridge") over the Erie Canal in the town of Ogden, New York. The project was completed in June of 2007, approximately six months before Claimant's accident. However, after completion of the project, it became evident that the lifts were not operating properly due to some problems with the counterweights for the lifts. It was determined that Hohl needed to replace some bearings or "sheaves" in the bridge lift mechanism. On the day of the accident, Claimant traveled to the bridge with a small team of employees from Hohl to perform the necessary work. No representatives of the State were on site. It was snowing at the time the group reached the bridge, and between 12 and 18 inches of snow had accumulated on the ground and bridge surface. Claimant, a millwright for Hohl, was instructed to shovel the snow from the gang boxes (where the tools were kept) to the bridge surface and all four corners of the bridge. The purpose of Claimant's shoveling was to enable the workers from Hohl to get to, and through, the access doors on the bridge deck and down into the bridge to perform the necessary work. After approximately 40 minutes of shoveling, Claimant slipped in the snow and ice he was removing from the deck of the bridge. He injured his back and, subsequently, commenced this action alleging violations of Labor Law §§ 200 and 241(6).
With its motion for summary judgment, Defendant seeks dismissal of the claim, asserting that Claimant cannot maintain a cause of action under either identified Labor Law section because the snow and ice he slipped in was the very condition that he was directed to remove. Defendant also asserts as an additional reason for dismissal of the Labor Law § 200 cause of action that Defendant neither had supervisory control over Mr. Hecker's work, nor did it create or have actual or constructive notice of the alleged dangerous condition.
Claimant's position is that, although he was charged with removing the snow and ice that he slipped in, he is protected by the provisions of the Labor Law because he was a millwright and his job that day was to help repair the bridge, not to remove snow. He argues that the fact that he had to remove the snow and ice was incidental and not actually a part of the job his employer was hired to perform.
Initially, I note that the parties disputed whether the work being done was a repair of the lift bridge which would be covered by the provisions of the Labor Law, or routine maintenance, which would not. The record clearly demonstrates that the task of replacing the sheaves in the lift bridge was to take several days and that the individual sheaves weighed hundreds of pounds each. I note that in Buckmann v State of New York (64 AD3d 1137), the Appellate Division, Fourth Department, determined that the replacement of a broken lens on a signal light over the Erie Canal which required only the removal and replacement of two "wing nuts" to effect, was a repair. The Court stated: "In order to establish that she was performing repair work within the ambit of the statute, as opposed to routine maintenance, claimant was required to establish that the part of the building or structure 'being worked upon was inoperable or not functioning properly'" (64 AD3d at 1139, citing Goad v Southern Elec. Intl., 236 AD2d 654, 655). Accordingly, I find that the work Claimant was performing at the time of the accident was a repair of the lift bridge and not routine maintenance.
However, to have a valid claim under § 241(6), Claimant must allege at least one specific violation of the regulations of the Commissioner of Labor and he must demonstrate how that particular regulation was a proximate cause of the accident (Ares v State of New York, 80 NY2d 959). In support of his § 241(6) cause of action, Mr. Hecker alleges that Defendant violated the following sections of the Industrial Code: 1) 12 NYCRR 23-1.7(d), which requires the removal of snow and ice from work walkways to provide safe footing; 2) 12 NYCRR 23-1.8(c)(2), which requires employers to provide waterproof boots for employees working in water, mud, or wet concrete; and 3) 12 NYCRR 23-1.8(c)(3), which requires employers to provide waterproof clothing for employees working in rain or snow.
Claimant has failed to provide any evidence that alleged violations of the second and third sections cited above [12 NYCRR 23-1.8(c)(2) and 12 NYCRR 23-1.8(c)(3)] were in any way causally related to Claimant's injuries. The photographs and testimony provided by the parties demonstrate that Claimant was wearing appropriate clothing and boots at the time of the accident. Indeed, Claimant himself testified at his deposition that he was wearing heavy duty linemen (outdoor) boots "the best you can buy" (Exhibit D, p.52). There is no evidence in the record that different boots or clothing could have in any way prevented Claimant's injuries. Accordingly, Claimant's § 241(6) cause of action cannot be supported by either of these alleged violations.
In his claim, however, Mr. Hecker also alleges that Defendant failed to take proper precautions to keep the area in which Claimant was working free of snow and ice in violation of Subdivision (d) of 12 NYCRR 23-1.7. Although this provision is specific enough to support a cause of action under Labor Law § 241(6) (Rizzuto v L. A. Wenger Contr. Co., 91 NY2d 343), I find that it is of no benefit to Claimant in this instance. As Defendant correctly argues, Claimant cannot maintain a Labor Law cause of action for Defendant's failure to have removed the snow and ice from his work area, when he was the very person charged with removing that snow and ice. Although Claimant tried admirably to distinguish the case of Gaisor v Gregory Madison Ave., LLC (13 AD3d 58), I find that case to be directly on point and controlling in this instance. In Gaisor, the plaintiff was an ironworker who had been directed to remove ice and snow from an upper floor of a building that was under construction and was exposed to the elements. He slipped in the snow that he was shoveling. The Court affirmed dismissal of the action stating that no cause of action under either Labor Law § 241(6) or § 200 existed because the snow and ice on which he slipped were the very conditions he was charged with removing.
Claimant attempted to distinguish Gaisor, arguing that the employer in that case was specifically required by the terms of its contract to perform snow removal services. Claimant maintains that he was a millwright, there to work on the lift bridge, and the fact that he had to remove snow was incidental to, and not actually a part of, the job he and his employer were hired to perform. However, in Gaisor, the plaintiff was an ironworker and his employer was a subcontractor hired to perform all of the iron work at the site. The contract recognized that the work would be exposed to the elements and specifically called for snow removal.
As pointed out by Defendant, the same is true in this case. The contract at issue (Brister Reply Aff., Exhibit A) incorporates the usual standard specifications and these require Claimant's employer, Hohl, to furnish "all labor, materials, equipment, and other incidentals necessary or convenient to the successful completion of the contract and the carrying out of all the duties and obligations imposed by the contract" (Exhibit A, p. 24) and this included equipment and methods consistent with "seasonal or weather conditions combined with the nature of the terrain" (Exhibit A, p. 82).
The Court in Gaisor went on to say that the same reasoning that required dismissal of the § 241(6) cause of action (that he was injured in the snow he was charged with removing) required dismissal of the Labor Law § 200 cause of action as well.
As further support for dismissal of the Labor Law § 200 cause of action, the record in this case demonstrates that the State did not control Claimant or the work he was performing and that it did not even have a representative on site at the time. Further, there is no evidence that the snow in question, which is normal in upstate New York in December, was a dangerous condition or, even if it was, that Defendant had either actual or constructive notice of it.
Based upon the foregoing, it is
ORDERED, that Defendant's motion for summary judgment is granted and Claim 116642 is dismissed in its entirety; and it is further
ORDERED, that Claimant's cross-motion for partial summary judgment on liability is denied as moot.
September 20, 2010
Rochester, New York
RENÉE FORGENSI MINARIK
Judge of the Court of Claims