Gain v. Eastern Reinforcing Service, Inc.

• Decision Date: 28 October 1993
• Citation: 603 N.Y.S.2d 189,193 A.D.2d 255
• Parties: Christine GAIN et al., as Coadministratrices of the Estate of Karl W. Haeussel Jr., Deceased, Appellants-Respondents, v. EASTERN REINFORCING SERVICE INC., et al., Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 189

603 N.Y.S.2d 189

193 A.D.2d 255

Christine GAIN et al., as Coadministratrices of the Estate of Karl W. Haeussel Jr., Deceased, Appellants-Respondents, v. EASTERN REINFORCING SERVICE INC., et al., Respondents-Appellants.

Supreme Court, Appellate Division,

Third Department.

Oct. 28, 1993.

Rosenblum, Ronan, Kessler & Sarachan (George L. Sarachan, of counsel), Albany, for appellants-respondents.

Carter, Conboy, Bardwell, Case, Blackmore & Napierski (Susan DiBella Harvey, of counsel), Albany, for Eastern Reinforcing Service Inc. and others, respondents-appellants.

Hiscock & Barclay (Robert L. Adams, of counsel), Albany, for Niagara Mohawk Power Corp., respondent-appellant.

Before WEISS, P.J., and MERCURE, CARDONA, MAHONEY and CASEY, JJ.

MAHONEY, Justice.

Cross appeals from an order of the Supreme Court (Keegan, J.), entered November 4, 1992 in Albany County, which, inter alia, partially granted plaintiffs' motion for partial summary judgment.

Karl W. Haeussel Jr. (hereinafter decedent) was electrocuted when, while assisting defendant Joe Sokol, an employee of defendant Eastern Reinforcing Service Inc. (hereinafter Eastern), in removing a truckload of steel rings, the wire cable of the boom truck Sokol was using to lift the rings off decedent's delivery truck came in contact with an overhead high-voltage power line. This accident furnished the occasion for the instant suit against Eastern, its president Kathleen Rivette, supervisor Ronald Rivette (hereinafter collectively referred to as the Eastern defendants), Sokol and Niagara Mohawk Power Corporation. Recovery was premised upon the theory of common-law negligence and upon the novel theory that defendants' actions violated Labor Law § 202-h, the "High-Voltage Proximity Act", which, according to plaintiffs, creates a statutory cause of action imposing absolute liability. ¹ Following joinder of issue and the completion of discovery, plaintiffs, the administratrices of decedent's estate, moved for summary judgment on the issue of liability and, in addition, sought further deposition of Kathleen Rivette. Defendants opposed with Sokol and the Eastern defendants additionally cross-moving for summary judgment dismissing the statutory cause of action on the ground that Labor Law § 202-h does not create a private right of action. Supreme Court partially granted plaintiffs' motion, directing summary judgment against Niagara Mohawk and the Eastern defendants on the issue of their liability under section 202-h, denied the motion for summary judgment against Sokol and denied the cross motion. It did not address the motion for further deposition. These cross appeals ensued.

Addressing first the Labor Law § 202-h claim, while the violation of a statute may give rise to absolute liability, it is axiomatic that not every statute that commands or prohibits particular conduct is within the principle of absolute liability. To qualify, the statute must evidence "an intention express or implied that from disregard of [its] command a liability for resultant damages shall arise 'which would not exist but for the statute' " (Schmidt v. Merchants Desp. Transp. Co., 270 N.Y. 287, 305, 200 N.E. 824, quoting Shepard Co. v. Taylor Publ. Co., 234 N.Y. 465, 468, 138 N.E. 409; see, Williamson Roofing & Sheet Metal Co. v. Town of Parish, 139 A.D.2d 97, 103, 530 N.Y.S.2d 720; see generally, 79 NY Jur 2d, Negligence, §§ 60-68, at 388-399). Here, it is evident from a reading of Labor Law § 202-h in its entirety that no private right of action expressly is authorized. ² That being the case, the existence of such a right turns upon whether it fairly can be implied from a reading of the statute ( see, e.g., Sheehy v. Big Flats Community Day, 73 N.Y.2d 629, 633, 543 N.Y.S.2d 18, 541 N.E.2d 18; Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 315, 464 N.Y.S.2d 712, 451 N.E.2d 459). Of central significance in this inquiry are three factors: "(1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme" ( Sheehy v. Big Flats Community Day, supra, 73 N.Y.2d at 633, 543 N.Y.S.2d 18, 541 N.E.2d 18; see, CPC Intl. v. McKesson Corp., 70 N.Y.2d 268, 519 N.Y.S.2d 804, 514 N.E.2d 116).

While decedent may well be a member of the broad class of persons for whose benefit Labor Law § 202-h was enacted, a review of legislative history persuades us that an implied private action is not consistent with the legislative scheme. The stated purposes of Labor Law § 202-h are to provide more stringent and specific safety standards than those provided by the Federal Occupational Safety and Health Administration (hereinafter OSHA) (see, 29 CFR 1910.268) in an effort to avoid accidents endangering both persons and "the quality of electrical service" (L.1988, ch. 469, § 1; Mem of Sen. Lack 1988 Legis Ann, at 194), to give the Commissioner of Labor enforcement power to ensure compliance and to make clear who must bear the cost of moving power lines when necessary (see generally, Governor's Approval Mem, Bill Jacket, L.1988, ch. 469). In our view, the inescapable conclusion to be drawn from this and from a plain reading of the statute is that the legislative goal is not to establish a vehicle for the compensation of persons injured by high-voltage electricity, but rather to achieve the prevention of such injuries through the imposition of generally applicable safety standards and the creation of a mechanism by which the Commissioner of Labor would have broad regulatory and remedial powers to intervene in an effort to insure compliance. In this regard, Labor Law § 202-h stands in stark contrast to the absolute liability provisions of Labor Law § 240(1), the stated purpose of which is not the...