Corral v. Outer Marker Global Steel, Inc.

• Decision Date: 20 September 2011
• Docket Number: 10-CV-1162 (SJF)(ARL)
• Parties: RODOLFO URENA CORRAL and MARIA URENA, Plaintiffs, v. THE OUTER MARKER GLOBAL STEEL, INC., THE COUNTY OF SUFFOLK, JAMIN JACKSON d/b/a JACKSON STEEL, CESAR PINEDA d/b/a HORIZON ERECTORS, and PARK LINE ASPHALT MAINTENANCE INC., Defendants.
• Court: U.S. District Court — Eastern District of New York

RODOLFO URENA CORRAL and MARIA URENA, Plaintiffs,

v. THE OUTER MARKERGLOBAL STEEL, INC.,THE COUNTY OF SUFFOLK,JAMIN JACKSON d/b/a JACKSON STEEL,CESAR PINEDA d/b/a HORIZON ERECTORS, andPARK LINE ASPHALT MAINTENANCE INC., Defendants.

10-CV-1162 (SJF)(ARL)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: September 20, 2011

ORDER

FEUERSTEIN, J.

On March 3, 2010, plaintiffs Rodolfo Urena Corral ("Corral") and Maria Urena (together, "plaintiffs") commenced this action for damages arising from Corral's alleged injury at a construction site and Maria Urena's loss of consortium as a result of that injury. Before the Court are motions for summary judgment filed by defendants The Outer Marker, Park Line Asphalt Maintenance, Inc. ("Park Line"), and Suffolk County (the "County") (together, "defendants"). For the reasons that follow, defendants' motions are granted.

I. Background.

A. Factual Background

The complaint alleges that on November 28, 2009, Corral was employed as a construction worker on a large metal frame airplane hangar at the Francis S. Grabeski Airport in Westhampton Beach, New York ("the Airport"), and was severely injured while using a defective "hoist or lift." Second Amended Complaint ("Compl.") ¶¶ 1, 21, 27, 31, 33, 37.

Defendant Suffolk County owned the land on which the airplane hangars were being constructed. (Plaintiffs' Counter-Statement of Material Facts ["Pl. 56.1 Stmt."], ¶ 2). Defendant The Outer Marker leased the land from the County, including the "right to construct and operate the airplane hangars and appurtenant equipment and taxi ways." Id. at ¶ 5. The Outer Marker was created for the purpose of leasing the land and constructing the airplane hangars, and is owned by Richard Mailand and Robert Mailand. (The Outer Marker and Park Line's Statement of Undisputed Facts ["Def. 56.1 Stmt."], 111).

Park Line, which is also owned by Richard Mailand and Robert Mailand, was the general contractor for the project. Def. 56.1 Stmt., ¶ 12. Richard Mailand hired Jackson Steel - which is owned by Jamin Jackson,¹ Def. 56.1 Stmt., ¶ 14 - to erect the two airplane hangars, PI. 56.1 Stmt., ¶ 11, but "Jamin Jackson and/or Jackson Steel subcontracted the steel erection project for The Outer Marker to Cesar Pineda and/or Horizon Erectors." Def. 56.1 Stmt., ¶ 19. Cesar Pineda, who did business as "Horizon Erectors," Pl. 56.1 Stmt., ¶ 8, hired five individuals toactually build the hangars: Corral, Elmer Pineda, Marcelo Pineda, Artemio Mendoza, and Israel Hernandez. Pl. 56.1 Stmt., ¶10. Each of the five workers claimed to be the sole proprietor of an individual business entity. Pl. 56.1 Stmt., ¶ 8.

Plaintiffs premise liability upon the moving defendants based upon allegations that the Airport was "owned and operated" by Suffolk County, Compl. at ¶ 21, leased to The Outer Marker, id. at f 22, and Park Line was a contractor for the project, id. at ¶ 28.

In order to assist in the construction of the hangars, Jamin Jackson ordered "mechanized equipment" for use by the workers, which included a JLG boom elevated work platform (the "lift"). Pl. 56.1 Stmt., ¶ 14; Def. 56.1 Stmt. 56.1,¶ 27. According to plaintiffs, the lift "is a self-propelled four-wheel drive basket lift equipped with a 60 foot extending boom." Plaintiffs' Br. at 10. A "steel rail-enclosed work platform, also known as a basket or turret" is attached to the end of the boom. Id. The basket's "control panel" includes two "joysticks." Id. The left joystick, which moves the basket up and down, contains a "lockout safety mechanism" designed to prevent the basket's movement "unless a spring-loaded lockout ring on the joystick is first lifted up." Id. A "floor pedal" must also be depressed in order for any of the controls to function. Id.

Plaintiffs claim that the lockout safety mechanism on the left joystick was broken at the time of Corral's accident, and that Corral "was injured because the joystick was activated inadvertently while the foot pedal was pressed." Id. at 15. According to plaintiffs, Corral was pinned between a horizontal railing above the machine's controls and the horizontal girt in the hangar. See Plaintiff's Br. at 12.

According to the declaration of Israel Hernandez, a worker at the site, the left joystickwas "cracked from the beginning when it arrived at the airport," and "had a circular, wide and deep hole in the cap." Plaintiffs' Ex. 6 at ¶ 10. Similarly, Elmer Pineda, another worker, testified at his deposition that there was a hole in the left joystick, which "ha[d] always been there." Plaintiffs' Ex. 5, 41:12-13. Mr. Hernandez states that the control joysticks had "problems," Plaintiffs' Ex. at ¶ 8, that "the safety on the left joystick was not in good working order," id. at ¶ 11, and that lifting the safety "did not prevent the basket from moving," id, Elmer Pineda testified that he did not need to lift the lockout ring when he freed Corral from the basket at the time of the accident. Plaintiffs' Ex. 5, 41:18-42:14.

Plaintiffs' expert, Russ Rasnic, submitted a "Preliminary Report" dated May 14, 2011, in which he opined that the accident was caused by "the failure to properly maintain safety devices designed to prevent the BOOM ELEVATION/TURRET ROTATION controls from being inadvertently actuated." Plaintiffs' Ex. 10A, at 3. In support of that conclusion, Mr. Rasnic cited his "inspection" of the machine on April 28, 2011, well over a year after the accident occurred. Mr. Rasnic stated that, at the time he tested the machine, the "lockout ring was not functioning on the BOOM ELEVATION/TURRET ROTATION controller." Id. at 14.²

On August 26, 2011, defendants filed their motions for summary judgment.³

II. Discussion.

A. Summary Judgment Standard

Summary judgment should not be granted unless "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Wilson v. Northwestern Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir. 2010) (quoting Fed. R. Civ. P. 56(c)(2)). "In ruling on a summary judgment motion, the district court must resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment and determine whether there is a genuine dispute as to a material fact, raising an issue for trial." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (internal quotations and citations omitted). "A fact is material when it might affect the outcome of the suit under governing law." Id. An issue of fact is genuine only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The moving party bears the initial burden of establishing the absence of any genuine issue of material fact, after which the burden shifts to the nonmoving party to establish the existence of a factual question that must be resolved at trial. See Koch v. Town of Brattleboro. Vermont, 287 F.3d 162, 165 (2d Cir. 2002) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

"In order to defeat a motion for summary judgment supported by proof of facts that wouldentitle the movant to judgment as a matter of law, the nonmoving party is required under Rule 56(e) to set forth specific facts showing that there is a genuine issue of material fact to be tried. * * *. If the nonmoving party does not so respond, summary judgment will be entered against him" Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993) (citations omitted). The nonmoving party "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible * * *, or 'upon the mere allegations or denials of the [nonmoving] party's pleading,' Fed.R.Civ.P. 56(e)." Id. (citations omitted).

B. New York State Labor Law §240(1)

Plaintiffs' first cause of action alleges that defendants violated New York State Labor Law § 240(1) by failing "to construct, place, and operate proper safety equipment" at the Airport work site. Compl., ¶¶34-42.

Section 240(1) of the New York Labor Law "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." Agric. Ins. Co., Inc. v. Ace Hardware Corp., 214 F.Supp.2d 413, 417 (S.D.N.Y. 2002) (internal quotation marks omitted). The provision is intended to protect workers from "elevation-related hazards," Henry v. Eleventh Ave., L.P., 87 A.D.3d 523, 928 N.Y.S.2d 72, 73 (2d Dep't 2011), and is designed to "shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person," id. (quoting Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501, 601 N.Y.S.2d 49, 618 N.E.2d 82 (1993) (emphasis in original)). The NewYork Court of Appeals has held that the protections of section 240(1) apply "only to a narrow class of special hazards." Nieves v. Five Boro Air Conditioning & Refrigeration Corp., 93 N.Y.2d 914, 915-16, 690 N.Y.S.2d 852, 712 N.E.2d 1219 (1999). "The core objective of the statute in requiring protective devices for those working at heights is to allow them to complete their work safely and prevent them from falling." Id at 916, 690 N.Y.S.2d 852, 712 N.E.2d 1219.

The record does not suggest that Corral's accident was caused by one of the "special hazards" contemplated by the statute. Corral did not fall from the aerial lift. At the time of the accident, Mr. Corral's "head and shoulders were caught between the horizontal railing above the controls and the horizontal 'girt' above him." Plaintiff's Br. at 12. Indeed, when Elmer Pineda reached him, Mr. Corral's foot was still touching the pedal, and his "chest was...