Cappabianca v. Skanska USA Building Inc.

OPINION OF THE COURT Freedman, J. Plaintiff John Cappabianca seeks to recover for injuries he sustained in July 2005 when his foot became stuck, causing him to fall off the pallet on which he was standing while cutting bricks with an electric saw at the construction site for a New York City school. He asserted claims against all defendants under Labor Law §§ 200 (1), 240 (1) and 241 (6), as well as a claim sounding in common-law negligence. Plaintiff now appeals from the May 2010 order of the motion court which, among other things, granted defendants’ motions for summary judgment on his claims and denied his cross motion for partial — 142 — summary judgment as to liability with respect to his causes of action. He also appeals from the resulting June 2010 judgment dismissing the complaint. For the reasons set forth below, we affirm the motion court’s dismissal of the Labor Law § 200 claim, the related negligence claim, and the Labor Law § 240 (1) claim. We reinstate plaintiffs Labor Law § 241 (6) claim as against some defendants, insofar as the claim is based on certain provisions of the Industrial Code (12 NYCRR 23-1.1 et seq.), but affirm the court’s denial of plaintiffs motion for partial summary judgment on liability. The following summarizes the record in the light most favorable to plaintiff. Defendant New York City School Construction Authority owned the work site and defendant Skanska USA Building Inc. acted as the project’s general contractor. Skanska USA Building subcontracted with plaintiffs employer, nonparty Job Opportunities for Women (Job Opportunities), to perform masonry work, and engaged defendant Safety and Quality Plus, Inc. (Safety) as a consultant to inspect the project, report safety deficiencies to the general contractor, and conduct safety meetings. Cappabianca worked at the job site from March 2005 through the date of his accident on July 29, 2005. He was supervised by and reported directly to Job Opportunities foremen; none of the defendants supervised him or otherwise controlled his work, and none had the authority to do so. Job Opportunities furnished Cappabianca with the tools and equipment he used on the job. Cappabianca’s work consisted of cutting bricks with Job Opportunities’ stationary wet saw. Located on the school’s unfinished third floor, the saw and its stand sat on a wooden pallet that lay on the concrete floor. The pallet was anywhere from 4 to 12 inches high. While operating the saw, Cappabianca stood on an adjacent pallet of the same height to enable him to operate its foot pedal, arm lever, and cut-off switch. The pallets’ surfaces were composed of slats positioned about three to six inches apart. A Skanska manager who observed the arrangement of the saw and the pallets testified that it was the Job Opportunities’ “construction standard.” While in use, a wet saw sprays water on bricks being cut to cool and lubricate the bricks and the cutting blade and reduce dust and flying particles. According to Cappabianca, the saw malfunctioned in that its hood area sprayed water “all over,” including onto the floor, instead of directing the water into an — 143 — attached tray as it was designed to do. The water from the saw accumulated on the floor underneath his pallet and made it slippery, and the pallet shifted horizontally in a circular arc of about six inches when he picked up bricks or put them down. Cappabianca states that he complained about the water to Job Opportunities and Skanska personnel. Contrary to the dissent’s contention, Cappabianca singled out the defective saw as the source of the water on the floor, and there is no evidence that the water, which accumulated directly around the saw, had any other source. The rainwater to which the dissent refers is mentioned in a witness’s records from one month before the accident. Those records do not specify where the water was, and they indicate that laborers were addressing the problem by sweeping up the rainwater. The same witness did not remember seeing any water at the location of the accident. Cappabianca described his accident as follows: after he had cut a brick, he turned to put it on an adjacent pallet. The pallet upon which he stood shifted on the slippery floor as he turned, causing him to lose his footing. His left foot got caught between pallet slats and he fell to the floor and injured bis knee. In March 2006, plaintiff commenced this action against School Construction Authority and four other governmental entities* (the City defendants), Skanska USA Building and its affiliate, Skanska USA Inc. (Skanska), and Safety. Safety cross-claimed against Skanska for contribution and indemnity, both common-law and contractual, and the City defendants and Skanska asserted similar cross claims against Safety. After discovery, the City defendants and Skanska, and, by separate motion, Safety, moved for summary judgment dismissing the complaint and the cross claims against them. Plaintiff opposed and cross-moved for partial summary judgment on liability. The motion court granted defendants’ motions and dismissed the complaint and cross claims. We first turn to plaintiffs Labor Law and negligence claims against the City defendants and Skanska and we will then address his claims against Safety. Section 200 (1) of the Labor Law codifies an owner’s or general contractor’s common-law duty of care to provide construction site workers with a safe place to work (Perrino v Entergy Nuclear Indian Point 3, LLC, 48 AD3d 229, 230 [2008]). Claims for personal injury under the statute — 144 — and the common law fall into two broad categories: those arising from an alleged defect or dangerous condition existing on the premises and those arising from the manner in which the work was performed (see Cook v Orchard Park Estates, Inc., 73 AD3d 1263, 1264 [2010]). Where an existing defect or dangerous condition caused the injury, liability attaches if the owner or general contractor created the condition or had actual or constructive notice of it (Mendoza v Highpoint Assoc., IX, LLC, 83 AD3d 1, 9 [2011]). Where the injury was caused by the manner and means of the work, including the equipment used, the owner or general contractor is liable if it actually exercised supervisory control over the injury-producing work (Foley v Consolidated Edison Co. of N.Y., Inc., 84 AD3d 476, 477 [2011]; Dalanna v City of New York, 308 AD2d 400 [2003]). Here, all of the contributing causes of the accident directly arose from the manner and means in which Cappabianca was performing his work. He has consistently maintained that Job Opportunities, which exclusively supervised him, furnished him with a defective saw which continuously sprayed water onto the floor and made it slippery. He further alleges that Job Opportunities directed him to operate the saw while standing on an unsecured pallet. Finally, Cappabianca alleges that the pallet Job Opportunities directed him to use was unsafe because of the gaps on its surface, and that his foot got caught in a gap and caused him to lose his footing. Since the City defendants and Skanska did not control the work that caused the accident, the section 200 and related negligence claims were properly dismissed. In Dalanna v City of New York (308 AD2d 400 [2003], supra), this Court affirmed the dismissal of a Labor Law § 200 claim brought by a plumber who, while installing pipes on a tank, tripped over a bolt that protruded from a concrete slab. Months before, a number of bolts had been used to temporarily anchor the tank to the slab before its permanent installation elsewhere. After the tank was removed from the slab, the plaintiffs employer was supposed to have cut all the bolts level with the surrounding surface, but it missed the bolt on which the plaintiff tripped. We found that the protruding bolt was not “a defect inherent in the property,” but instead resulted from “the manner in which plaintiff’s employer performed its work” (308 AD2d at 400). Thus, even if the owner and general contractor in Dalanna had constructive notice of the bolt, they could only be held liable under section 200 if they had exercised supervisory control over the employer’s — 145 — work (id.; see also McCormick v 257 W. Genesee, LLC, 78 AD3d 1581, 1582 [2010]). We disagree with the dissent’s contention that Dalanna should not control here or that it conflicts with the cases that the dissent cites. None of those cases involve an allegedly dangerous condition on the premises that directly arose from the manner and means of the plaintiffs work (see Caspersen v La Sala Bros., 253 NY 491, 493 [1930] [elevator installer struck by brick dropped by masons working 10 or 11 stories higher]; Mortensen v Magoba Constr. Co., 248 NY 577 [1928] [subcontractor’s employee injured when the concrete flooring that another subcontractor had installed collapsed]; Seaman A.B. Chance Co., 197 AD2d 612, 613 [1993], appeal dismissed 83 NY2d 847 [1994] [worker removing tree electrocuted by live power wire running through premises]; Bass v Standard Brands, 65 AB2d 689, 689 [1978] [worker dismantling tank was injured by lid that “from long disuse” had become unsafe before work commenced]; Wohlfron v Brooklyn Edison Co., Inc., 238 App Div 463 [1933], affd, 263 NY 547 [1933] [contractor’s employee passing along concrete slab stepped into hole that another contractor had cut two weeks before]). The dissent believes that defendants’ lack of supervisory control is irrelevant because the accident was entirely caused by a dangerous condition existing on the premises, namely, the water from the wet saw that accumulated on the floor. In response, we first point out that requiring Cappabianca to stand on an unsecured pallet with a gapped surface while he worked undoubtedly played a significant role in causing his accident. Also, the record does not support the dissent’s related claim that Cappabianca stood on the pallet to avoid the water; rather, Cappabianca testified that he had to stand on the pallet to operate the saw properly. While the dissent asserts that the only possible reason for Job Opportunities’ use of the pallets was to avoid the water, that theory is purely conjectural. In characterizing the water as a dangerous condition on the premises, the dissent does not take into account that the water would not have been present but for the manner and means of plaintiffs injury-producing work. Since the water was directly caused by work over which the City defendants and Skanska had no control, holding them liable for it under section 200 would make them responsible for Job Opportunities’ negligence. However, section 200 does not impose vicarious liability on owners and general contractors (see generally Ross v Curtis-Palmer — 146 — Hydro-Elec. Co., 81 NY2d 494, 502, 506 [1993] [comparing Labor Law § 241 (6), a vicarious liability statute, with section 200]). Liability under section 200 only attaches where the owner or contractor had the “authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition” (Russin v Louis N. Picciano & Son, 54 NY2d 311, 317 [1981]). Since defendants could not control the activity that continuously produced the water, namely, the operation of the wet saw, they lacked any ability to correct the unsafe condition and thus were not liable under section 200 or for negligence (see Biafora v City of New York, 27 AD3d 506, 507-508 [2006]). As for the claims against the City defendants and Skanska under Labor Law § 240 (1), often called the scaffold law, Cappabianca’s accident could not give rise to liability under that statute because he was at most 12 inches above the floor and was not exposed to an elevation-related risk requiring protective safety equipment (see e.g. Toefer v Long Is. R.R., 4 NY3d 399 [2005] [fall from floor of a flatbed truck to ground four-to-five feet below did not trigger scaffold law coverage because the use of statute’s enumerated safety devices are normally associated with more dangerous activity]; Lombardo v Park Tower Mgt. Ltd., 76 AD3d 497, 498 [2010] [no scaffold law claim where a staircase step, raised 18 inches above the floor, broke and caused the plaintiff to fall]; Torkel v NYU Hosps. Ctr., 63 AD3d 587, 590 [2009] [ramp whose bottom rested on the street and whose top rested on the adjacent sidewalk curb, with height differential of at most 12 to 18 inches, did not expose the plaintiff to type of hazard that the scaffold law contemplates]; Skudlarek v Bethlehem Steel Corp., 251 AD2d 974, 975 [1998] [dismissing scaffold law claim by a plaintiff who fell from 10-to-12-inch-high pallet onto floor]). However, plaintiffs claim under Labor Law § 241 (6) is reinstated insofar as it is based upon the City defendants’ and Skanska’s violation of Industrial Code (22 NYCRR) §§ 23-1.7 (d) and 23-9.2 (a). Section 241 (6) imposes a nondelegable duty on premises owners and contractors at construction sites to provide reasonable and adequate safety to workers (see Ross, 81 NY2d at 501-502). To establish a claim under the statute, a plaintiff must show that a specific, applicable Industrial Code regulation was violated and that the violation caused the complained-of injury (id.). Plaintiff sets forth a claim based on section 23-1.7 (d) of the Industrial Code, which prohibits owners and employers from — 147 — letting workers use “a floor, . . . scaffold, platform or other elevated working surface which is in a slippery condition” and requires that water and other “foreign substance[s]” which may cause slippery footing be removed or covered. That regulation applies because the record presents a triable issue whether, as Cappabianca alleges, the saw sprayed water onto the floor because it was malfunctioning or whether, as defendants claim, the water was not a foreign substance within the meaning of the regulation because wet saws always spray water onto the floor (compare Galazka v WFP One Liberty Plaza Co., LLC, 55 AD3d 789, 790 [2008], lv denied 12 NY3d 709 [2009] [dismissing Labor Law § 241 (6) claim based on Industrial Code § 23-1.7 (d) because the wet plastic on which the plaintiff slipped was integral part of asbestos removal project and not a “foreign substance”]). In addition, the record raises an issue whether the water on the floor caused Cappabianca to slip and fall. The other applicable regulation, Industrial Code § 23-9.2 (a), requires that “any structural defect or unsafe condition in [power-operated] equipment shall be corrected by necessary repairs or replacement.” At issue is whether the saw was defective and whether its defect contributed to the accident. We agree with the motion court’s dismissal of the Labor Law § 241 (6) claims against the City defendants and Skanska based on sections 23-1.7 (b) (1) (i) and (e) (2), 23-1.8 (c) (2), 23-5.1 (b), (c) (2), (e) (1), (f) and (h), 23-1.22 (c) (1) and 23-5.2 of the Industrial Code. Section 23-1.7 (b) (1) (i), which requires that “hazardous openings” be guarded to prevent someone from stepping or falling into them, does not apply because the three-to-six-inch openings between the slats of the pallet were not large enough for a person to fit through (see e.g. Bell v Bengomo Realty, Inc., 36 AD3d 479, 480 [2007]). Section 23-1.7 (e) (2), which requires work areas to be kept free of tripping hazards, is inapplicable because Cappabianca does not allege that he tripped on an accumulation of dirt or debris. Section 23-1.8 (c) (2), requiring workers on “wet footing” to be provided with waterproof boots or similar protective footwear, is inapplicable because Cappabianca testified that he wore rubber-soled work boots that adequately protected him. Sections 23-5.1 (b), (c) (2); (e) (1); (f) and (h) and 23-5.2 regulate scaffolds, but none were involved here. Finally, section 23-1.22 (c) (1) sets safety standards for platforms used to transport vehicular and pedestrian traffic and is inapplicable to the pallet on which Cappabianca stood (see Dzieran v 1800 Boston Rd., LLC, 25 AD3d 336, 338 [2006]). — 148 — Contrary to plaintiffs contention, he is not entitled to summary judgment as to liability on his reinstated Labor Law § 241 (6) claim because, as indicated, the City defendants and Skanska have raised triable issues about whether the Industrial Code regulations were violated and, if so, whether the violations caused the accident (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 349-351 [1998]). Finally, all of plaintiffs claims against Safety were properly dismissed because, in its limited role as a safety consultant for the construction project, the company could not be held liable as the owner’s or general contractor’s agent. Safety’s contract limited its responsibilities and did not confer any authority to supervise and control Cappabianca’s work (see Smith v McClier Corp., 22 AD3d 369, 371 [2005] [an agent’s general contractual obligation to ensure compliance with safety regulations at a work site does not constitute a sufficient basis for liability under the Labor Law or a theory of negligence]). Accordingly, the judgment of the Supreme Court, New York County (Saliann Scarpulla, J.), entered June 25, 2010, dismissing the complaint and all cross claims, and bringing up for review an order, same court and Justice, entered May 10, 2010, which granted defendants’ motions for summary judgment dismissing the complaint and cross claims, and denied plaintiffs cross motion for partial summary judgment as to liability, should be modified, on the law, the judgment vacated as to the City defendants and Skanska, the motion of the City defendants and Skanska for summary judgment denied as to the Labor Law § 241 (6) claim insofar as it is based on 12 NYCRR 23-1.7 (d) and 23-9.2 (a), and otherwise affirmed, without costs. The appeal from the order, same court and Justice, entered May 10, 2010, should be dismissed, without costs, as subsumed in the appeal from the judgment. Footnotes [*] These include the Board of Trustees of the New York City School Construction Authority, the City of New York Board of Education, the New York City Department of Education and the City of New York.