Hammond v. International Paper Co.

Yesawich, Jr., J. Appeal from an order of the Supreme Court (Ryan, Jr., J.), entered May 18, 1989 in Clinton County, which denied defendant’s motion for summary judgment dismissing the complaint. On the day of the injury, plaintiff, an ironworker whose employer was performing construction work at defendant’s paper mill, entered the building, walked down a hallway past a paper producing machine and slipped on a wet concrete floor; he had traversed this area some 30 to 40 times previously. The near fall allegedly injured his groin and back. In his complaint, plaintiff asserts that defendant violated Labor Law §§ 200 and 241 (6). Following discovery, defendant, claiming that plaintiff’s oral deposition negated the existence of any triable issues of fact, moved for summary judgment. Supreme Court denied the motion and defendant appeals. Labor Law § 200 (1) codifies the common-law duty to provide a safe working environment (Allen v Cloutier Constr. Corp., 44 NY2d 290, 299; Whitaker v Norman, 146 AD2d 938, 939, affd 75 NY2d 779). It requires that all work areas be "constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places” (Labor Law § 200 [1]). Liability under this section is based upon a failure to take reasonable care and prudence in securing the safety of the work area (see, Yearke v Zarcone, 57 AD2d 457, 459, lv denied 43 NY2d 643), and typical negligence standards govern adjudication of these disputes (see, Employers Mut. Liab. Ins. Co. v Di Cesare & Monaco Concrete Constr. Corp., 9 AD2d 379, 382; see also, 1 NY PJI2d 494). Defendant does not deny that it owed plaintiff a duty to warn him of the dangers in its plant stemming from wet conditions which are said to inhere in defendant’s manufacturing process. Rather, defendant maintains that it satisfied that duty and that plaintiff has not shown otherwise. In his examination before trial, plaintiff acknowledged that when he first began working at defendant’s plant nine months earlier, he was furnished a booklet which contained an accurate description of hazards of which to be aware including slippery floors and slippery areas; that signs abounded in the plant regarding the condition of the floor; that at the time of the [915] accident he knew the floor was damp and observed a sign, hanging at eye level in the area where he slipped, which read " 'Floor Slippery When Wet’, or something like that”; and that the lighting was "pretty good”. That plaintiff believes that an additional warning device should have been utilized, namely portable "wet floor” signs to warn of the floor’s condition, is of no moment for the uncontroverted fact is that the methods defendant employed adequately warned plaintiff of the slippery condition of the floor in the area where he lost his footing. As plaintiff submitted no evidence to rebut defendant’s proof that it provided adequate warnings (see, Zuckerman v City of New York, 49 NY2d 557, 562), summary judgment should have been directed in defendant’s favor (cf., Lee v Fisher Hotels, 130 AD2d 628, 629) with respect to plaintiffs claim insofar as it is based on Labor Law §200. In contrast, however, Supreme Court correctly determined that a triable issue of fact exists regarding plaintiffs Labor Law § 241 (6) claim. Plaintiff charges that defendant violated 12 NYCRR 23-1.7 (d), which implements section 241 (6) and unequivocally requires employers to remove, sand, or cover any ice, snow, grease, water or other foreign substance which might cause a floor, passageway or walkway to become slippery. Defendant argues that the rule is inapplicable to a situation in which it is impossible to comply with its literal dictates (see, e.g., Ortiz v Uhl, 39 AD2d 143, affd 33 NY2d 989). Irrespective of whether Ortiz applies when an accident arises from a proper use of the owner’s facilities (cf., supra, at 147), defendant’s supporting motion papers do not conclusively demonstrate that compliance was infeasible. An affidavit from defendant’s machine foreman indicated only that "[i]nherent in the cleaning operation is the fact that water will accumulate on the floor of the plant [and e]ven with drainage, the floor will remain wet after these operations”. Nowhere, except in its brief on appeal, does defendant suggest that sanding or covering the slippery area would not be possible. As defendant has not shown that compliance with 12 NYCRR 23-1.7 (d) is infeasible, plaintiffs cause of action based on Labor Law § 241 (6) must stand. Order modified, on the law, without costs, by reversing so much thereof as denied the motion regarding plaintiffs cause of action under Labor Law § 200; motion granted to that extent and said cause of action dismissed; and, as so modified, affirmed. Weiss, J. P., Yesawich, Jr., and Mercure, JJ., concur.