Berardi v. Getty Refining & Marketing Co.

Decision Date05 December 1980
Citation107 Misc.2d 451,435 N.Y.S.2d 212
CourtNew York Supreme Court
PartiesAnthony BERARDI and Ann Berardi, Plaintiffs, v. GETTY REFINING & MARKETING CO., and Cross & Brown Co., s/h/a Cross & Brown, Inc., Defendants. GETTY REFINING & MARKETING CO., and Cross & Brown Co., s/h/a Cross & Brown, Inc., Third-Party Plaintiffs, v. HORN WATERPROOFING CORPORATION, Third-Party Defendant.

Simonson & Cohen, P. C., Staten Island, for plaintiffs; Daniel Cohen, Staten Island, of counsel.

Quirk & Bakalor, P. C., New York City, for defendants; Richard Bakalor, New York City, of counsel.

Edward L. Milde, New York City, for third-party defendant; Joseph R. Miller, Staten Island, of counsel.



In this personal injury action, plaintiff and employee of Horn Waterproofing Corporation (Horn) sues defendants, Getty Refining and Marketing Co. and Cross and Brown Company (s/h/a Cross and Brown Inc.), as owners of a building at 660 Madison Avenue in New York City, for failure to provide the proper safety equipment and protection pursuant to Sections 240 and 241(6) of the New York State Labor Law.

Horn had been hired by defendant owners to make repairs on two water towers located on the roof of said building. Plaintiff and another worker were directed by Horn to make repairs. In the process plaintiff fell from one of the towers and suffered severe injuries. The present action was instituted and defendant owners impleaded Horn as third party defendants. A verdict was reached in favor of plaintiff with defendant owner being found 5% responsible for plaintiff's injuries and Horn 95%.

At the close of Horn's case defendant moved to dismiss plaintiff's action claiming Sections 240 and 241(6) have been preempted by the Federal Occupational Safety and Health Act of 1970. Defendant alternatively moves for a directed verdict against third party defendant Horn for common law indemnity and also for contractual indemnity.

All three motions are denied.

Turning to the first issue, whether the Occupational Safety and Health Act (OSHA) pre-empts Sections 240 and 241 of the New York Labor Law, defendant-owner claims the federal act places the onus of responsibility upon the employer while the New York Law places it on the owner and contractor and that this incongruence results in confusion thus defeating the purpose of OSHA which then prevails because of the supremacy clause.

On the surface the defendant's argument is seemingly tenable but upon closer scrutiny it dissipates into something chimerical.

Several levels of analysis are required to determine whether a federal statue pre-empts State Law (See Pharmaceutical Society of State of N.Y. v. Lefkowitz, 2 Cir., 586 F.2d 953; Ray v. Atlantic Richfield Co., 435 U.S. 151, 98 S.Ct. 988, 55 L.Ed.2d 179; Northern States Power Co. v. State of Minnesota, 8 Cir., 447 F.2d 1143). Initially, since intent is the touchstone of preemption (Rousseff v. Dean Witter and Co., Inc., D.C., 453 F.Supp. 774) it must be determined whether Congress, in passing OSHA, intended to preempt State Law and if so then the scope of the preemption must be analyzed. (See Florida Lime and Avocado Growers Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248; Greenwald v. First Fed. Savings & Loan, D.C., 446 F.Supp. 620. The design of Congress and the scope of that design, may be determined from its express manifestation or, if this is not possible, may be deduced by: 1) examining the nature of the subject matter whether federal interest dominates, by 2) considering the pervasiveness of federal regulation and by 3) comparing the federal objective and the state objective to resolve whether they are compatible. (See Pharmaceutical, 586 F.2d 953; Ray, 435 U.S. 151, 98 S.Ct. 988, 55 L.Ed.2d 179; Florida Lime, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248). If after such examination the first questions are answered in the affirmative, the last in the negative then no other conclusion but preemption is possible and the state law must fall. (See Florida Lime, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248).

In the present case there is no question from examining the statute that Congress intended to preempt state regulation in the field of occupational health and safety if the states failed to meet OSHA criteria. (See 29 U.S.C. Sec. 667; see also 3 U.S. Code Cong. and Admin. News pp. 5177, 5194 (1970). However, the scope of such preemption its parameters and the interrelation of OSHA and related state legislation have not been clearly delineated. Accordingly, a cursory review of the pertinent OSHA sections, the purpose of the Act and relevant case law is in line.

OSHA, signed into law December 29, 1970, was enacted with the express purpose: "to assure so far as possible every working man and woman ... safe and healthful working conditions." (29 U.S.C. Sec. 651(b)). The bill would achieve its purpose through programs of research, education and training, through the development and administration by the Secretary of Labor of uniformly applied occupational safety and health standards. (3 U.S. Code Cong. and Admin. News 1970 p. 5177).

The hub of this network is the employer-employee relationship. Education and training programs are targeted to employers and employees. Safety and health standards and the duties and liabilities stemming from them are likewise so aimed. (29 U.S.C. Sec. 654). As stated in Senate Report 91-1282, the rationale for this is that: "employers have primary control of the work environment and thus should ensure that it is safe." (3 U.S. Code Cong. and Admin. News p. 5186 (1970). Enforcement of the employer's obligations is accomplished through work place inspections, usually during working hours by OSHA personnel. (29 U.S.C. Sec. 657). When violations of standards are found, citations are issued and penalties suggested (29 U.S.C. Sec. 658). An employer may contest citations in an administrative review with such decision in turn reviewable before the United States Court of Appeals (29 U.S.C. Sec. 660). In additional where no specific standard is yet applicable, the employer has a general duty to furnish each of his employees with places of employment free from recognized hazards (29 U.S.C. Sec. 654 (a)(1); see also 3 U.S. Code Cong. & Admin. News p. 5185 (1970). Employees on the other hand though obligated to comply with applicable standards are not subject to citations or penalties for failing to do so. It is left to the employer to discipline errant employees. (1 Employment Safety & Health Guide Rep. (CCH) Para. 506; see also Para. 506 for general outline of the act.)

In light of the above discussion, it must be stressed that the Act corpus is devoid of mention, either directly or in passing concerning the obligations or liabilities of persons other than the employer and employee. This conspicuous silence has been interpreted by the Occupational Safety and Health Review Commission (OSHRC) and the Courts, both state and federal, as signifying that OSHA was not intended to cover the owner of the premises where work is being done. (Cochran v. International Harvester Co., D.C., 408 F.Supp. 598; Hare v. Federal Compress and Warehouse Co., D.C., 359 F.Supp. 214). Furthermore, OSHA does not create a private cause of action for the employee against either his employer or the owner of the premises. (National Marine Service Inc. v. Gulf Oil Co., D.C., 433 F.Supp. 913; Jeter v. St. Regis Paper Co., 5 Cir., 507 F.2d 973; Skidmore v. Travelers Insurance Co., D.C., 356 F.Supp. 670; Hare, 359 F.Supp. 214; Otto v. Specialties, Inc., D.C., 386 F.Supp. 1240; Buhler v. Marriott Hotels Inc., D.C., 390 F.Supp. 999; Dravo Corp. v. Occupational Safety and Health Review Commission, 3 Cir., 613 F.2d 1227; Knight v. Burns, Kirkley and Williams Const. Inc., Ala., 331 So.2d 651; Firth v. Harrah South Shore Corp., 552 P.2d 337.) Rather the Act is remedial in nature (Marshall v. Whirlpool Corp., 6 Cir., 593 F.2d 715; Bristol Steel & Iron Works Inc. v. Occupational Safety and Health Review Commission, 4 Cir., 601 F.2d 717), intended to prevent first injury (Kent Nowlin Const. v. O.S. & H. Review Commission, 10 Cir., 593 F.2d 368; Ark.-Best Freight Systems Inc. v. O.S. & H. Review Commission, 8 Cir., 529 F.2d 649). This is quite contrary to tort law the aim of which is to compensate the injured party (See B and B Insulation Inc. v. O.S. & H. Review Commission, 5 Cir., 583 F.2d 1364 where employee sued employer; Green Mt. Power Corp. v. Comm. of Labor and Industry, Vt., 383 A.2d 1046. Indeed the Act itself supports the above interpretation with 29 USC Sec. 653(b)(4) stressing that OSHA shall not be construed "to supersede or affect workman's compensation or to enlarge or diminish or affect in any other way the common law or statutory duties, liabilities ... of employers and employees...".

Thus, though pervasive, OSHA is not exclusive. Within the sphere of the employer-employee relationship, more specifically with respect to the promulgation and enforcement of safety and health standards affecting that relationship, the Act, unless a state enacts a safety and health plan approved by OSHA, preempts state law. Once outside this sphere, however, the hold of the Act over state action is relatively weak and diminished. By juxtaposing the statutory interpretation just presented with two basic tenets of our federal system, namely: that state laws are not easily preempted when enacted pursuant to its police power (See Dixie Dairy Co. v. City of Chicago, 7 Cir., 538 F.2d 1303; Simpson v. Alaska State Commission for Human Rights, D.C., 423 F.Supp. 552; ITT Lamp Division of Int. Telephone & T. Corp. v. Minter, 1 Cir., 435 F.2d 989) and also that a state's interest in fashioning its rules of tort law is paramount to any discernible federal interest except where the state acts arbitrarily (Martinez v. State of California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481) this point is clearly underscored.

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