Guenther v. Modern Continental Companies
| Decision Date | 04 June 2008 |
| Docket Number | No. 06-CV-1420 (RER).,06-CV-1420 (RER). |
| Citation | 561 F.Supp.2d 317 |
| Parties | Dennis GUENTHER and Deborah Guenther, Plaintiffs, v. MODERN CONTINENTAL COMPANIES, Modern Continental Construction Co. of New York, Inc., Modern Continental Construction Co., Inc., The Hallen Construction Co., Inc., and Stone & Webster, Inc., Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Nicholas P. Giuliano, William R. Bennett, III, Bennett, Giuliano, McDonnell & Perrone, LLP, New York, NY, for Plaintiffs.
Ronald Betancourt, Betancourt Vanhemmen Greco & Kenyon, Louis J. Schepp, New York, NY, Angelo Joseph Bongiorno, Frank J. Pecorelli, Jr., Ahmuty, Demers & McManus, Albertson, NY, for Defendants.
Plaintiff Dennis Guenther and his spouse Deborah Guenther (collectively "Guenther") bring this action against defendants Modern Continental Companies, Modern Continental Construction Co. of New York, Inc., Modern Continental Construction Co., Inc. (collectively, "Modern"), the Hallen Construction Co., Inc. ("Hallen") and Stone & Webster, Inc. ("S & W") for violations of New York Labor Law ("NYLL") §§ 200, 240, and 241. (See generally Docket Entry 7.) This Court has subject matter jurisdiction over this action based on diversity of citizenship. See 28 U.S.C. § 1332(a)(1). The parties have consented to my jurisdiction pursuant to 28 U.S.C. § 636(c)(1). (See Docket Entries 52 & 53.) I previously granted S & W's motion for summary judgment on Guenther's NYLL § 200 claim. (See Docket Entry 72.) Guenther has thereafter discontinued his actions against Modern and limited his causes of action to only those pursuant to NYLL §§ 240(1) and 241(6). (See Docket Entry 83 at 3.)
Guenther moves for summary judgment on his NYLL §§ 240 and 241 claims. (Docket Entry 81.) Hallen and S & W cross-move for summary judgment on these claims as well. (Docket Entries 84 & 88.) For the reasons set forth below, Guenther's motions for summary judgment are denied; Hallen's and S & W's motions are denied under NYLL § 240 and granted under NYLL § 241.
The facts of this case are not in serious dispute and have already been recounted in my previous opinion and order. See Guenther v. Modern Continental Cos., No. 06-CV-1420 (RER), 2007 WL 2230158, at *1-2 (E.D.N.Y. Aug. 1, 2007). On May 22, 2003, Guenther, while under the employment of third-party defendant Spearin, Preston, Burrows, Inc. ("Spearin"), was working on a construction project known as the Eastchester Extension in the Bronx, New York. (Pl.'s Stmt. ¶¶ 4-5; Hallen's Stmt. ¶¶ 1-3; S & W's Stmt. ¶¶ 1-2.)1 Con Edison was the owner of the construction site, and Iroquois Gas Transmission System, L.P. ("Iroquois") was the project owner. (Pl.'s Stmt. ¶¶ 7-8; Hallen's Stmt. ¶ 2; S & W's Stmt. ¶ 5.) Iroquois hired Hallen to serve as the general contractor of the project and contracted with S & W to perform work on the site. (Pl.'s Stmt. ¶¶ 8-9; S & W's Stmt. ¶¶ 7-8.) Hallen then contracted with Spearin to drive piles into the ground. (Pl.'s Stmt. ¶¶ 11-12.)
Guenther claims that he sustained injuries while in the course of his employment with Spearin. (Pl.'s Stmt. ¶¶ 26-27; S & W's Stmt. ¶ 1; Hallen's Stmt. ¶ 1.) Guenther was performing work called "monking," which required him to climb up leads and position a pile so that the operator of the crane could drive the pile. (Pl.'s Stmt. ¶¶ 19, 24; S & W's Stmt. ¶ 1; Hallen's Stmt. ¶¶ 5-6.) The pile-driving operation required the crane operator to use a crane to lift and drive steel "H" piles. (Pl.'s Stmt. ¶ 13.) A set of leads (i.e., ropes) was attached to the crane. (See id. ¶ 14.) The leads are fixed to the boom of the crane and may hang to the ground. (Id. ¶ 15.) Using one of its cables, the crane pulls a pile upright into the leads. (Id. ¶ 18.) Once the pile is vertical within in the leads, the monk climbs up the leads and, using only his strength, positions the top of the pile directly below the pile hammer. (Id. ¶ 19.) Once the pile is beneath the hammer, the crane operator is signaled to gently lower the hammer on to the top of the pile. (Id. ¶ 20.) After the hammer is set on top of the pile, the monk climbs down the leads. (Id. ¶ 22; Hallen Stmt. ¶ 6.) When the monk is clear of the pile driver, the crane operator drives the pile into the ground. (Pl.'s Stmt. ¶ 23.)
Lawrence Anderson ("Anderson") was the crane operator employed by Spearin when Gunether was injured. (S & W's Stmt. ¶ 4; see also Docket Entry 96, Ex. C at 13-16.) Anderson testified that, prior to the accident, he had lifted a pile to the top of the crane's leads in preparation of driving the pile. (Docket Entry 96, Ex. C at 26-27.) Anderson further testified that, in the process of positioning the pile, "I'm traveling with the machine and apparently my foot accidentally knocked the brake off and unlatched the brake and the hammer came down a few feet and I grabbed it with my foot as it came down." (Id. at 27; see also Pl.'s Stmt, ¶ 25; Hallen's Stmt. ¶¶ 8-9; S & W's Stmt. ¶ 4.) Guenther testified that he had just positioned the pile under the hammer and was starting to exit the leads when the hammer fell. (Docket Entry 81, Attach. 1 at 3; Docket Entry 84, Ex. G at 134.) Guenther was standing inside the leads when a portion of the hammer fell approximately ten feet and struck him. (Pl.'s Stmt. ¶¶ 25-26; S & W's Stmt. ¶ 3.) At the time of the incident, Guenther was wearing a safety harness and a lifeline provided by his employer. (Hallen's Stmt. ¶ 11.) These devices prevented Guenther from falling to the ground. (Id. ¶ 12.)
Guenther, Hallen and S & W each move for summary judgment on Guenther's claims under NYLL §§ 240 and 241(6). (See generally Docket Entries 83, 84 and 85.)
A motion for summary judgment will be granted where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(C); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden is on the moving party to demonstrate the absence of a genuine issue of material fact. Am. Int'l Group, Inc. v. London Am. Int'l Corp., 664 F.2d 348, 351 (2d Cir.1981). In addition, the court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If, however, the opposing party fails to make a showing of an essential element of its case for which it bears the burden of proof, summary judgment will be granted. Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Smith v. Half Hollow Hills Cent. Sch. Dist., 349 F.Supp.2d 521, 524 (E.D.N.Y.2004).
To overcome a motion for summary judgment, the opposing party must show that there is an issue of material fact in dispute. That is, the disputed fact must be one which "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 242, 106 S.Ct. 2505. If the opposing party does not set forth specific facts showing that there is a genuine issue for trial, summary judgment is appropriate. FED.R.CIV.P. 56(c).
In interpreting the New York statutes at issue in this case, the Court is bound by the construction set forth by the New York Court of Appeals. See Auerbach v. Rettaliata, 765 F.2d 350, 352 (2d Cir.1985) (citing Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981)).
Guenther contends that Hallen and S & W are liable for his injuries because they failed to provide a safety device as set forth in NYLL § 240(1) that would have adequately protected Guenther from the pile driver's falling hammer. Section 240(1), which is sometimes referred to as the "scaffolding law," provides in pertinent part:
All contractors and owners and their agents ... in the erection, demolition, repairing, altering ... of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, 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 to a person so employed.
NYLL § 240(1). In order to prevail on a Section 240(1) claim, an injured plaintiff must prove that: (1) a violation of the statute occurred; and (2) the violation was the proximate cause of the plaintiff's injury. See Wojcik v. 42nd St. Dev. Project, 386 F.Supp.2d 442, 450 (S.D.N.Y.2005) (citing Blake v. Neighborhood Hous. Servs. of N.Y. City, Inc., 1 N.Y.3d 280, 284-85, 771 N.Y.S.2d 484, 803 N.E.2d 757 (N.Y.2003)) (other citations omitted); Shannon v. Lake Grove Centers, Inc., 118 F.Supp.2d 343, 347 (E.D.N.Y.2000) (citing Felker v. Corning, Inc., 90 N.Y.2d 219, 221, 660 N.Y.S.2d 349, 682 N.E.2d 950 (N.Y.1997)) (other citations omitted). Once a plaintiff has proved both elements, than the defendant is subject to "absolute liability." Wojcik, 386 F.Supp.2d at 450-51 (citing Koenig v. Patrick Const. Corp., 298 N.Y. 313, 316-17, 83 N.E.2d 133 (N.Y.1948)). "Absolute liability" in the context of a Section 240(1) claim does not necessarily mean strict liability, but rather that: (1) a plaintiff's recovery will not be reduced due to another party's comparative negligence; and (2) the statute imposes a nondelegable duty. Id. at 451 n. 8 (citations omitted); see also Blake, 1 N.Y.3d at 287-88, 771 N.Y.S.2d 484, 803 N.E.2d 757.
All parties move for summary judgment on Guenther's Section 240(1) claim. Guenther contends that defendants violated the statute as a matter of law because he should have been given, stays, blocks, braces, ropes or other devices such as larger leads or an "automonk"2 to protect him from the hammer. In response, Hallen and S & W argue that: (1) Guenther was provided with a harness and safety line, which comprised adequate safety devices; ...
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