Agriculture Ins. Co., Inc. v. Ace Hardware Corp.

• Decision Date: 12 August 2002
• Docket Number: No. 98 CIV. 8708(RJW).,98 CIV. 8708(RJW).
• Parties: AGRICULTURAL INSURANCE COMPANY, INC., As Assignee of the Cause of Action of Robert T. Treadway, Jr., Plaintiff, v. ACE HARDWARE CORPORATION and Butler Construction Company, Defendants. Ace Hardware Corporation and Butler Construction Company, Defendants/Third-Party Plaintiffs, v. Schwob & Sage Building Corporation, Third-Party Defendant.
• Court: U.S. District Court — Southern District of New York

214 F.Supp.2d 413

AGRICULTURAL INSURANCE COMPANY, INC., As Assignee of the Cause of Action of Robert T. Treadway, Jr., Plaintiff, v. ACE HARDWARE CORPORATION and Butler Construction Company, Defendants.

Ace Hardware Corporation and Butler Construction Company, Defendants/Third-Party Plaintiffs, v. Schwob & Sage Building Corporation, Third-Party Defendant.

No. 98 CIV. 8708(RJW).

United States District Court, S.D. New York.

August 12, 2002.

COPYRIGHT MATERIAL OMITTED

Marschhausen & Fitzpatrick, P.C., Garden City, NY (Dirk Marschhausen, of Counsel), for Plaintiff.

Malapero & Prisco, New York, NY (Joseph J. Prisco, of Counsel), for Defendants/Third-Party Plaintiffs.

Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C., New York, NY (Patrick V. Didomenico, of Counsel), for Third-Party Defendant.

OPINION

WARD, District Judge.

Plaintiff Agricultural Insurance Company, Inc. ("Agricultural Insurance"), as assignee of the cause of action of Robert T. Treadway, Jr. ("Treadway"), moves pursuant to Fed.R.Civ.P. 56 and N.Y. Labor Law § 240(1) for partial summary judgment on the issue of liability on the second cause of action against defendants. For the reasons hereinafter stated, plaintiff's motion is granted.

BACKGROUND

On January 6, 1997, plaintiff's assignor Treadway was injured during his employment when he fell from an elevated height at a construction site during the building of a Retail Support Center in Wilton, New York. The premises were owned by defendant Ace Hardware Corporation ("Ace"). Ace hired Butler Construction Company ("Butler") as its general contractor. Butler in turn subcontracted steel erection work to Treadway's employer, Schwob & Sage Building Corporation ("Schwob").

The injury to Treadway occurred when the steel beam on which he was standing and working collapsed. At the time of the accident, Treadway was provided with the following safety devices: a safety harness, a safety line, a hard hat, and gloves. Treadway's safety harness was fastened to the safety line by a lanyard, which in turn was attached to the steel beam. When the beam collapsed, Treadway was pulled by his harness to the ground thirty to thirty-five feet below.

DISCUSSION

I. Accident Investigation Report

In support of the instant motion, plaintiff relies on an Accident Investigation Report ("the Report") prepared by defendant Butler. The Report consists of: (1) an "employee interview" of how the accident occurred; (2) a list of witnesses; (3) a description of the ways the accident could have been prevented; and (4) five unsworn witness statements by construction workers who were working with Treadway at the time of the accident.

Plaintiff contends that the Report is admissible because (1) it comes within the business record exception to the hearsay rule pursuant to Fed.R.Evid. 803(6), and (2) it constitutes a party admission under Rule 801(d)(2)(D). The Court finds that the conclusion/summary portion of the Report is admissible, but under Rule 801(d)(2)(B), not Rule 801(d)(2)(D).¹ The Report, however, is not admissible under Rule 803(6) because it contains double hearsay.

A. Party Admission

Plaintiff contends that the conclusion/summary portion of the Report is admissible under Fed.R.Evid. 801(d)(2)(D). Under the rule, a statement is not hearsay if it is offered against a party and is made "by the party's agent or servant concerning a matter within the scope of the agency or employment, [and] during the existence of the relationship." Fed.R.Evid. 801(d)(2)(D).

Before determining whether a statement is admissible as a party admission, the Court must find: "(1) the existence of the agency relationship, (2) that the statement was made during the course of the relationship, and (3) that it relates to a matter within the scope of the agency." Id. In the present case, John Burkman, then safety superintendent for defendant Butler, prepared the summary/conclusion portion of the Report during the course of his employment. Moreover, his statements concerned a matter within the scope of his work. (Burkman Dep. Tr. at 18).²

Burkman, however, was not an eyewitness to the accident. Instead, he relied on the statements of other eyewitnesses in order to write the Report. Id. at 13-15. The Report, therefore, contains hearsay. With regard to this issue, the Second Circuit has held that a party admission containing hearsay is admissible if it "draws inferences from the underlying hearsay and thus `manifest[s] an adoption or belief in its truth.'" Schering Corp. v. Pfizer, Inc., 189 F.3d 218, 239 (2d Cir.1999) (citing Fed.R.Evid. 801(d)(2)(B)). If the party admission, however, "merely repeats hearsay and thus fails to concede its underlying trustworthiness," it is inadmissible. Id.

Here, although Burkman himself did not witness the accident, he drew inferences as to what in fact occurred from the statements of the construction workers. (Burkman Dep. Tr. at 23-25). By doing so, he adopted the truth of the statements made by the eyewitnesses. Accordingly, the conclusion/summary portion of the Report is admissible as a party admission pursuant to Rule 801(d)(2)(B).³

II. Summary Judgment Standard

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). On a motion for summary judgment, the Court must determine "whether the evidence presents a sufficient disagreement to require submission to [the fact finder] or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In making this determination, the Court "must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor." Consarc Corp. v. Marine Midland Bank, N.A., 996 F.2d 568, 572 (2d Cir.1993).

Initially, the moving party must show that there is "an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has carried its burden under Rule 56, the non-moving party must set forth "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The non-moving party is required to introduce evidence beyond the mere pleadings to show that there is an issue of material fact concerning "an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

III. N.Y. Labor Law § 240(1)

Plaintiff seeks partial summary judgment pursuant to § 240(1) of the New York Labor Law. Section 240(1) imposes absolute liability on owners or contractors or their agents for injuries proximately caused by a failure to "provide safety devices necessary for protection to workers subject to the risks inherent in elevated work sites." Desrosiers v. Barry, Bette & Led Duke, Inc., 189 A.D.2d 947, 592 N.Y.S.2d 826 (3d Dep't 1993). The statute imposes a nondelegable duty upon owners and general contractors. Thus, they may be found liable even if they have not exercised supervision or control over the work site. Rocovich v. Consol. Edison Co., 78 N.Y.2d 509, 577 N.Y.S.2d 219, 583 N.E.2d 932 (1991).

Specifically, § 240(1) requires that owners and contractors furnish, or cause to be furnished, "scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection." N.Y. Labor Law § 240(1) (McKinney 1986 & Supp.1999). The statute is to be interpreted "as liberally as may be" to achieve the purpose of placing the ultimate responsibility for building practices on owners and contractors. See Lombardi v. Stout, 80 N.Y.2d 290, 296, 590 N.Y.S.2d 55, 604 N.E.2d 117 (N.Y.1992); Rocovich v. Consol. Edison, 78 N.Y.2d 509, 577 N.Y.S.2d 219, 583 N.E.2d 932 (1991).

To obtain summary judgment on the issue of liability under the statute, plaintiff must show that the statute has been violated as a matter of law, and that this violation was the proximate cause of the plaintiff's injuries. Gomez v. Preferred Rentals, Stockton Bldg., Inc., 1997 WL 749389, *3, 1997 U.S. Dist. LEXIS 19222, at *10 (S.D.N.Y. Dec. 3, 1997). In this case, plaintiff contends that partial summary judgment on the issue of liability is warranted as a matter of law because the safety devices available to Treadway did not provide him with proper protection in the performance of his work.

The Court notes at the outset that New York case law addressing the issue of § 240(1) violations has not been entirely consistent; however, this Court finds that the cases cited herein more accurately set forth New York law and that the facts of this case trigger liability under § 240(1).⁴

In Conway v. New York State Teachers' Ret. System, the Third Department held that "proper protection" under the statute requires that the safety device be "appropriately placed or erected so that it would have safeguarded the employee" and that the device itself "be adequate to protect against the hazards entailed in the performance of the particular task to which the employee was assigned." 141 A.D.2d 957, 530 N.Y.S.2d 300 (3d Dep't 1988) (emphasis in original). Put another way, mere availability of a particular piece of safety equipment is not adequate if it does not provide safety "without the use of additional precautionary devices." Id.

Similarly, the district court in Jimenez v. N.Y.C. Sch. Constr. Auth., 2000 WL 1804146, 2000 U.S. Dist. LEXIS 17786 (S.D.N.Y. Nov. 20, 2000), granted plaintiff partial summary judgment on the issue of liability even though defendant had furnished a safety device — a piece of hoisting equipment, such as a rope,...