Coley v. Arnot Ogden Memorial Hosp.

• Decision Date: 28 February 1985
• Citation: Coley v. Arnot Ogden Memorial Hosp., 107 A.D.2d 67, 485 N.Y.S.2d 876 (N.Y. App. Div. 1985)
• Parties: Rosa L. COLEY, Appellant, v. ARNOT OGDEN MEMORIAL HOSPITAL, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 876

485 N.Y.S.2d 876

107 A.D.2d 67

Rosa L. COLEY, Appellant, v. ARNOT OGDEN MEMORIAL HOSPITAL, Respondent.

Supreme Court, Appellate Division Third Department.

Feb. 28, 1985.

Ziff, Weiermiller, Learned & Hayden, Elmira (Scott J. Learned, Elmira, of counsel), for appellant.

Sayles, Evans, Brayton, Palmer & Tifft, Elmira (Edward B. Hoffman, Elmira, of counsel), for respondent.

Before MAIN, J.P., and WEISS, MIKOLL, YESAWICH and HARVEY, JJ.

MAIN, Justice Presiding.

Plaintiff was injured during the course of her employment with defendant when a ladder on which she was standing collapsed. Defendant's employees determined that the ladder was unsafe and discarded it. Plaintiff was thereby prevented from discovering the manufacturer or distributor of the ladder and, thus, could not bring an action alleging a defect in the ladder against such parties. As a result, plaintiff was effectively limited to recovering workers' compensation benefits. Plaintiff thereafter commenced this action alleging, inter alia, negligence, prima facie tort and a violation of Penal Law § 215.40 (tampering with physical evidence). After defendant moved for summary judgment, Special Term granted the motion and dismissed the complaint. From the judgment entered thereon, plaintiff appeals. We note that although the complaint alleges seven causes of action, only the three enumerated above are addressed by plaintiff on this appeal and we limit our consideration accordingly.

To resolve this matter, we must first decide whether plaintiff's complaint is barred by the exclusivity provision of the Workers' Compensation Law (Workers' Compensation Law § 11) and, if not, then determine whether the common-law tort actions alleged are sufficient to withstand defendant's motion for summary judgment.

In response to the first inquiry, the Workers' Compensation Law establishes the exclusive remedy for the work-related physical injuries of an employee (Workers' Compensation Law § 11; Burlew v. American Mut. Ins. Co., 99 A.D.2d 11, 14, 471 N.Y.S.2d 908, lv. denied 63 N.Y.2d 601, 672, 479 N.Y.S.2d 1027, 525, 468 N.E.2d 711, 707). The Workers' Compensation Law, however, does not preclude actions by an employee against a third-party tort-feasor (Workers' Compensation Law § 29 Billy v. Consolidated Mach. Tool Corp., 51 N.Y.2d 152, 160, 432 N.Y.S.2d 879, 412 N.E.2d 934). Furthermore, an employee can maintain a common-law action against the employer if such suit is based, not upon the compensable injury itself, but on a different distinct injury resulting from the impairment of the employee's legal rights to workers' compensation benefits (see Wojcik v. Aluminum Co. of America, 18 Misc.2d 740, 183 N.Y.S.2d 351; see also Flamm v. Bethlehem Steel Co., 18 Misc.2d 154, 185 N.Y.S.2d 136, affd. 10 A.D.2d 881, 202 N.Y.S.2d 222; 2A Larson, Workmen's Compensation § 68.32 ). Other jurisdictions have also recognized a cause of action against the employer for such a distinct injury when premised upon the employer's impairment of an employee's legal right to sue a third-party tort-feasor (see Pirocchi v. Liberty Mut. Ins. Co., 365 F.Supp. 277; see also 2A Larson, Workmen's Compensation § 68.32 ). In light of these recognized principles, we are of the view that the exclusivity provision of the Workers' Compensation Law should not bar a common-law action against the employer for impairing an employee's right to sue a third-party tort-feasor. Common-law actions for employers' torts outside the scope of the Workers' Compensation Law should not be prohibited by said law (see DeMarco v. Federal Ins. Co., 99 A.D.2d 114, 117, 472 N.Y.S.2d 464). Accordingly, we conclude, contrary to Special Term's assessment of this issue, that plaintiff can pursue common-law causes of action against defendant despite having accepted workers' compensation benefits.

We do, however, agree with Special Term's determination that plaintiff's causes of action are without merit and should be dismissed. We are unable to identify any duty owed by defendant to plaintiff with regard to the safekeeping of the ladder. The record reveals no promise by defendant or its employees to inspect or safeguard the ladder for plaintiff's benefit, thereby distinguishing this case from Pirocchi v. Liberty Mut. Ins. Co. (supra), in which a duty arose by the employer's voluntary agreement with the...