Hartley v. City of New York

• Decision Date: 03 November 1994
• Citation: 163 Misc.2d 540,621 N.Y.S.2d 789
• Parties: James HARTLEY and Priscilla Hartley, Plaintiffs, v. CITY OF NEW YORK, Healy Tibbitts Construction Co., Inc. and Weeks Marine, Defendants. HEALY TIBBITTS CONSTRUCTION CO., INC., Third-Party Plaintiff, v. MVN ASSOCIATES, INC., Third-Party Defendant.
• Court: New York Supreme Court

Page 789

621 N.Y.S.2d 789

163 Misc.2d 540

James HARTLEY and Priscilla Hartley, Plaintiffs, v. CITY OF NEW YORK, Healy Tibbitts Construction Co., Inc. and Weeks Marine, Defendants.

HEALY TIBBITTS CONSTRUCTION CO., INC., Third-Party Plaintiff, v. MVN ASSOCIATES, INC., Third-Party Defendant.

Supreme Court, Kings County Civil Term, Part 22.

Nov. 3, 1994.

Lazarowitz & Manganillo, P.C., Brooklyn, for plaintiffs.

Ahmuty, Demers & McManus, Albertson, for defendant/City.

Jacobowitz, Garfinkel & Lesman, New York City, for defendant/Healy.

Smith & Laquericia, New York City, for third-party defendant/MVN.

RANDOLPH JACKSON, Justice.

The plaintiff, James Hartley, was allegedly injured on or about October 3, 1989 while working as a commercial diver in the employ of MVN Associates, Inc. ("MVN"). MVN had contracted with Healy Tibbitts Construction Co., Inc. ("Healy") to supply divers in conjunction with Healy's contract with the City of New York ("City") to undertake an outfall sewer project at the Owls Head Water Pollution Control Project located in Brooklyn. Plaintiff brought this action pursuant to Labor Law § 200, § 240, § 241, § 431 and § 435 and common law negligence principles.

Defendants, Healy and City, each move for an order pursuant to CPLR § 3211(a)(2) dismissing the plaintiff's complaint. Third-party defendant, MVN, moves for an order dismissing the third party complaint of Healy.

FACTS

On October 3, 1989, the plaintiff was employed as a marine diver by MVN. Healy had contracted with the City of New York Department of Environmental Protection to perform an outfall sewer project (Project # WP-288;3A) at the Owls Head Water Pollution Control Project, Brooklyn, New York. In conjunction with that contract, Healy contracted with MVN to provide certain diving services including the work to be performed by MVN (and the plaintiff) on the date of the subject incident.

At the time of the accident, MVN was in the process of cutting underwater metal sheeting to grade regarding installation of the outfall sewage pipe. As part of the project, underwater trenches had been dug from the shore extending approximately 135 feet into the New York Harbor in a goal-post type configuration. Steel sheeting was driven into the trenches which then served as a concrete form. Prior to pouring the concrete, MVN divers would cut the steel sheeting to a certain grade. This activity was part of the installation of the actual outfall pipe which would serve to dispose of treated waste from the Owls Head plant into the water.

Generally, and on the date of the subject incident, the plaintiff worked with a team of two other MVN divers, Mark Ciliento and Mark McMahon. The plaintiff made dives in a rotating schedule with the other two divers. MVN diving operations were conducted from a free-floating barge in the harbor which was leased by Healy. While the plaintiff was actually underwater, one of the other divers on the barge would act as a "line tender". A line tender would feed hose to the diver and monitor the diver's equipment. The other individual on the barge would act as a "radio tender". This individual would keep in constant contact with the diver via radio which was kept in a radio shanty. The radio tender would relay commands and/or instructions to the diver and would also monitor the diver's depth with the device known as a pneumofathometer.

On October 3, 1989, the plaintiff made his first dive from the barge at approximately 1:00 p.m. Diving records indicated that the plaintiff was at a depth of 44 feet on his first dive on October 3, 1989. The plaintiff worked for approximately 40 minutes, kneeling on an H-beam which was welded onto the metal sheeting (approximately 6 to 7 feet above the ocean bottom), cutting the metal sheeting with a torch. At his deposition, the plaintiff testified that during his first dive that day, he felt discomfort in his back while attempting to jerk a piece of metal back and forth. The plaintiff claims he requested permission to come to the surface at that time. Mark Ciliento told him via radio that more metal sheets should be cut during this dive. Someone asked the plaintiff if he needed any further burning rods, to which Mr. Hartley responded he would retrieve some from the bottom. After the plaintiff's work was completed, Mr. Ciliento informed the plaintiff that he did not have to be decompressed (i.e., remain at a depth of 10 feet under water for some period of time) and that he should come straight to the surface.

Fifteen minutes later, he returned for a second dive. During the second dive, the plaintiff went back down to the same location and continued to cut steel sheets with his torch. After the dive, the plaintiff was advised to remain at the 10-foot level for decompression for three minutes. After reaching the surface and climbing onto the barge, the plaintiff was escorted to a decompression chamber where he spent five minutes at a pressure equal to ten feet below the surface.

On October 4, 1989, the plaintiff claims to have suffered from numbness and tingling in his left arm and elbow. That morning, the plaintiff returned to the job site and reported his complaints to his co-workers, Mr. McMahon and Mr. Ciliento. During the morning, the plaintiff acted as a tender for Mr. McMahon's dive. At 1:00 p.m., the plaintiff advised Mr. McMahon that he wanted to dive to the same location he was at on October 3, 1989 in order to see if his pain (numbness and tingling) would go away (which would indicate a decompression illness). The plaintiff testified, and diving records indicate, that he dove to a depth of 52 feet on October 4, 1989. After some period of time at the bottom, the plaintiff's symptoms dissipated. At that time, he was immediately brought back to the surface for treatment in the decompression chamber and he was referred for medical treatment.

On October 5, 1989, the plaintiff went back to the job site and spoke with Mr. McMahon. The plaintiff claims that he asked Mr. McMahon why the diving records showed a 52-foot depth during his dive on October 4 and the records showed only a 44-foot depth on October 3 while diving at the same location. According to the plaintiff's testimony, he and Mr. McMahon believed there was a miscalculation of the plaintiff's depth during his first dive on October 3, 1989. It was Mr. Hartley's impression that his first dive on October 3, 1989 was of a depth (over 50 feet rather than 44 feet) which would have required him to have decompression (which was not given).

According to the plaintiff's Bill of Particulars, the defendants were negligent in failing to decompress him properly and adequately after his October 3, 1989 dive and that they were negligent in allowing him to dive again on October 4, 1989, and that they again inadequately decompressed him at that time. The plaintiff alleges to have sustained decompression sickness (commonly referred to as "the bends") with related symptoms.

DISCUSSION

28 U.S.C. § 1333 states:

The district courts shall have original jurisdiction, exclusive of the courts of the State, of:

(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases, other remedies to which they are otherwise entitled.

The "saving to suitors" clause contained in 28 U.S.C. § 1333(1) permits state courts to adjudicate admiralty claims, provided that they apply Federal Maritime Law. Lerner v. Karageorgis Lines, 66 N.Y.2d 479, 497 N.Y.S.2d 894, 488 N.E.2d 824 (1985). In cases involving admiralty or maritime jurisdiction "the state courts are bound to apply Federal law ... in order to secure a single or Federal Maritime Law governs an action if the alleged incident occurs or is located on navigable waters and if the wrong bears a significant relationship to traditional maritime activity. Executive Jet Aviation v. Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972).

uniform body of maritime law." In the Matter of Rederi and Dow Chemical Co., 25 N.Y.2d 576, 581, 307 N.Y.S.2d 660, 255 N.E.2d 774 (1970).

Plaintiff claims that pursuant to Kahn v. Gates Construction Corp., 103 A.D.2d 438, 480 N.Y.S.2d 351 (2nd Dept., 1984), this incident did not occur in navigable waters.

In Kahn, the Court held that an incident in which a commercial diver who had lost three of his fingers while laying a sewer pipe on the ocean bottom was not subject to Federal Maritime Law. The Court based its decision on the fact that the accident occurred on the ocean bottom beneath navigable waters. The Submerged Lands Act, 43 U.S.C. § 1301(a)(2) grants a state sovereignty over:

... all lands permanently or periodically covered by tidal waters up to but not above the line of mean high tide and seaward to a line three geographical miles distant from the coast line of each such State and to the boundary lines of each such State where in any case such boundary as it existed at the time such State became a member of the Union, or as heretofore approved by Congress extends seaward (or into the Gulf of Mexico) beyond three geographical miles.

In Kahn, "since the alleged tort took place on land over which New York State exercised sovereignty, Federal law would not be applicable" (See, California ex rel. State Lands Comm. v. United States, 457 U.S. 273, 283, 102 S.Ct. 2432, 2437, 73 L.Ed.2d 1, reh. den. 458 U.S. 1131, 103 S.Ct. 14, 73 L.Ed.2d 1401; United States v. Alaska, 422 U.S. 184, 187, 95 S.Ct. 2240, 2245, 45 L.Ed.2d 109, reh. den. 423 U.S. 885, 96 S.Ct. 159, 46 L.Ed.2d 116). Id. at 443, 480 N.Y.S.2d 351.

The instant case is clearly distinguishable from Kahn. Plaintiff's alleged decompression injuries did not occur while he was on the sea floor. It is alleged in this case that the decompression injury occurred because plaintiff was not properly decompressed either in a decompression chamber (which was located on a barge on the surface) or because plaintiff was not instructed to maintain a position at various levels/check points below...