Seaman v. A.B. Chance Co.

—In an action to recover damages for personal injuries and wrongful death, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Gerard, J.), dated November 2, 1990, which denied her motion for summary judgment pursuant to CPLR 3212 and granted the cross motion of the Town of Babylon for summary judgment dismissing the complaint insofar as it is asserted against it. Ordered that the order is modified, on the law, by deleting [613] the provision thereof which granted those branches of the cross motion of the Town of Babylon which were for summary judgment dismissing the plaintiff’s third and fourth causes of action sounding in negligence and her seventh and eighth causes of action sounding in wrongful death, and substituting therefor provisions denying those branches of the cross motion; as so modified, the order is affirmed, with costs to the plaintiff. Labor Law § 200 codified a landowner’s common-law duty to provide workers with a reasonably safe place to work (see, Lombardi v Stout, 80 NY2d 290, 294; Allen v Cloutier Constr. Corp., 44 NY2d 290, 299). It is settled jurisprudence that liability will attach to a landowner pursuant to Labor Law § 200 (1) only when the injuries were sustained as the result of an actual dangerous condition at the work site, rather than as the result of the manner in which the work was performed (see, Lombardi v Stout, supra; Whitaker v Norman, 146 AD2d 938, 939, affd 75 NY2d 779), 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 unsafe condition causing the accident (see, Allen v Cloutier Constr. Corp., supra; Whitaker v Norman, supra). Here, the record shows that the Town of Babylon (hereinafter the Town) had documented notice of a live power wire running through a tree which it had slated for removal. We find that this constituted an actual dangerous condition in the Town’s right-of-way of which it had actual notice. Although the manner in which the work was performed was a contributing factor to the deceased’s electrocution, it cannot be said as a matter of law that it was the sole proximate cause. Consequently, the Supreme Court erroneously determined that Labor Law § 200 did not apply to the case at bar. In addition, contrary to the finding of the Supreme Court, we find that the plaintiff properly pleaded two causes of action, grounded in theories of negligence and wrongful death, alleging breach of the Town’s duties pursuant to 12 NYCRR part 3, which sets forth a standard of care for cutting, trimming, and removing trees near power lines (12 NYCRR 3.1 et seq.). Accordingly, we conclude that the plaintiff’s third, fourth, seventh, and eighth causes of action should not have been dismissed. Given this conclusion, we note that the settlement concerning the admitted violations of rules of the Federal Occupational Safety and Health Administration by the deceased’s employer may not be admitted into evidence at trial [614] (see, Kollmer v Slater Elec., 122 AD2d 117). Balletta, J. P., O’Brien and Santucci, JJ., concur.