Irwin v. St. Joseph's Intercommunity Hosp.

• Decision Date: 19 November 1997
• Citation: 236 A.D.2d 123,665 N.Y.S.2d 773
• Parties: , 1997 N.Y. Slip Op. 9983 Charles J. IRWIN and Helen Irwin, Appellants-Respondents, v. ST. JOSEPH'S INTERCOMMUNITY HOSPITAL and Ciminelli-Cowper Co., Inc., Respondents-Appellants. ST. JOSEPH'S HOSPITAL, Incorrectly Sued As St. Joseph's Intercommunity Hospital, et al., Third-Party Plaintiffs, v. GROVE ROOFING CO., INC., Third-Party Defendant-Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 773

665 N.Y.S.2d 773

236 A.D.2d 123, 1997 N.Y. Slip Op. 9983

Charles J. IRWIN and Helen Irwin, Appellants-Respondents, v. ST. JOSEPH'S INTERCOMMUNITY HOSPITAL and Ciminelli-Cowper

Co., Inc., Respondents-Appellants.

ST. JOSEPH'S HOSPITAL, Incorrectly Sued As St. Joseph's

Intercommunity Hospital, et al., Third-Party Plaintiffs, v. GROVE ROOFING CO., INC., Third-Party Defendant-Respondent-Appellant.

Supreme Court, Appellate Division Fourth Department.

Nov. 19, 1997.

Lewis & Lewis, P.C. by Allan Lewis, Buffalo, for Plaintiffs-Appellants.

Law Offices of Charles G. Di Pasquale by Jeffrey Baase, Buffalo, for Defendants-Respondents-Appellants and Third-Party Plaintiffs-Appellants.

Hurwitz & Fine, P.C., Buffalo, for Plaintiffs-Appellants Irwin.

Dennis C. Vacco (M. Patricia Smith, of counsel), New York City, for Intervenor New York State Attorney General.

Before DENMAN, P.J., and GREEN, HAYES, BALIO and FALLON, JJ.

GREEN, Justice:

At issue on this appeal is whether plaintiffs' cause of action alleging defendants' violation of Labor Law § 241(6) is preempted by Federal regulation of workplace safety pursuant to Occupational Safety and Health Act of 1970 (29 USC §§ 651-678) (OSH Act) and the safety and health standards for the construction industry promulgated thereunder by the Secretary of Labor (29 CFR part 1926). We conclude that Federal regulation of occupational safety and health under the OSH Act does not preempt plaintiffs' Labor Law § 241(6) cause of action.

Plaintiffs commenced this action to recover damages for injuries sustained by Charles J. Irwin (plaintiff) when he was transporting hot tar in a device known in the roofing trade as a lugger. At the time of the accident, plaintiff was employed by third-party defendant, Grove Roofing Co., Inc. (Grove Roofing), which had contracted with defendant Ciminelli-Cowper Co., Inc., to install a new roof for defendant and third-party plaintiff St. Joseph's Hospital. The accident occurred when plaintiff fell backward as he pulled the lugger up a plywood ramp, causing the lugger to fall on top of him and spill hot tar on his face, arms and upper torso. As a result of the accident, plaintiff sustained third-degree burns over 40% of his body.

Plaintiffs' Labor Law § 241(6) cause of action is premised upon defendants' alleged violation of 12 NYCRR 23-1.24(d), which regulates "[h]ot roofing material transporters, also known as hot luggers." That regulation provides that luggers "shall be equipped with at least the following safety features in order to minimize hazards to persons caused by blowbacks of the molten roofing materials: * * * The fill pipe cover shall be provided with a safety latch designed and installed to keep the cover in place at all times except during filling operations" (12 NYCRR 23-1.24[d][1][i], [2][i] ). It is undisputed that the fill pipe of the lugger plaintiff was using was not equipped with a safety latch or a cover. Further, this Court has previously determined that the mandate of that Industrial Code provision is sufficiently concrete to support a Labor Law § 241(6) cause of action (see, Tallchief v. Jemco Roofing, 217 A.D.2d 915, 917, 629 N.Y.S.2d 603; see generally, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 502-505, 601 N.Y.S.2d 49, 618 N.E.2d 82).

Plaintiffs moved for partial summary judgment on liability on the Labor Law § 241(6) cause of action and Grove Roofing cross-moved for summary judgment dismissing that cause of action on the ground that it is preempted by Federal law. Supreme Court denied the motion and cross motion. We affirm.

PREEMPTION UNDER THE OSH ACT

Grove Roofing, joined by defendants, contends that the Industrial Code regulations that establish and define the duties imposed by Labor Law § 241(6) have been preempted by the Federal scheme for regulation of workplace safety under the OSH Act. As a consequence, Grove Roofing submits, a civil damage action pursuant to Labor Law § 241(6), premised upon violation of those preempted regulations, cannot be maintained.

Because "the 'purpose of Congress is the ultimate touchstone' of preemption analysis" (City of New York v. Job-Lot Pushcart, 88 N.Y.2d 163, 167, 643 N.Y.S.2d 944, 666 N.E.2d 537, cert. denied sub nom. Ja-Ru v. City of New York, --- U.S. ----, 117 S.Ct. 186, 136 L.Ed.2d 124, quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 222, 11 L.Ed.2d 179), we must determine whether Congress, in enacting the OSH Act, intended to preempt an action for damages under Labor Law § 241(6). In making that determination, "we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress" (Rice v. Santa Fe El. Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447; cf., City of New York v. Job-Lot Pushcart, supra, at 166, 643 N.Y.S.2d 944, 666 N.E.2d 537). The presumption against preemption applies in the instant case because the regulation of health and safety, in and out of the workplace, has historically been the province of the States (see, Gade v. National Solid Wastes Mgt. Assn., 505 U.S. 88, 96, 112 S.Ct. 2374, 2381-82, 120 L.Ed.2d 73; City of New York v. Job-Lot Pushcart, supra, at 166, 643 N.Y.S.2d 944, 666 N.E.2d 537).

Congress declared that its purpose in bringing Federal regulation into this area traditionally occupied by the States was "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions" (29 USC § 651[b]; see, People v. Pymm, 76 N.Y.2d 511, 517, 561 N.Y.S.2d 687, 563 N.E.2d 1, cert. denied 498 U.S. 1085, 111 S.Ct. 958, 112 L.Ed.2d 1046). Federal regulation of workplace safety, however, "was not intended to be all encompassing" (Gade v. National Solid Wastes Mgt. Assn., supra, at 96, 112 S.Ct. at 2382). Rather, the OSH Act expressly contemplates that the States will continue to play a significant role in furthering the Act's overriding goal of workplace health and safety (see generally, Drummonds, The Sister Sovereign States: Preemption and the Second Twentieth Century Revolution in the Law of the American Workplace, 62 Fordham L.Rev. 469, 493-496, 552-555). Under the OSH Act, that goal is to be accomplished, in part, "by encouraging the States to assume the fullest responsibility for the administration and enforcement of their occupational safety and health laws" (29 USC § 651[b][11] ).

In addition to making that general declaration of State responsibility within the Federal scheme, Congress expressly saved two areas of State law from preemption (see, Gade v. National Solid Wastes Mgt. Assn., supra, at 96-97, 112 S.Ct. at 2382). In our view, the Industrial Code provision at issue in this action falls into the first area and plaintiffs' Labor Law § 241(6) cause of action is encompassed by the second.

SECTION 18

Section 18(a) of the OSH Act provides:

"Nothing in this chapter shall prevent any State agency or court from asserting jurisdiction under State law over any occupational safety or health issue with respect to which no standard is in effect under of this title"

(29 USC § 667[a] ).

The OSH Act defines "occupational safety and health standard" as "a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment" (29 USC § 652[8] ). Thus, State regulation of occupational safety and health is preempted to the extent that it addresses issues that are covered by a Federal standard promulgated by the Secretary of Labor pursuant to 29 USC § 655 (see, Gade v. Solid Wastes Mgt. Assn., supra, at 98-99, 112 S.Ct. at 2383).

In addition to reserving for State regulation those issues not governed by a Federal standard, Congress provided States the option of completely replacing Federal standards with their own. Section 18(b) of the OSH Act provides:

"Any State which, at any time, desires to assume responsibility for development and enforcement therein of occupational safety and health standards relating to any occupational safety or health issue with respect to which a Federal standard has been promulgated under [section 655] of this title shall submit a State plan for the development of such standards and their enforcement"

(29 USC § 667[b] ).

Under that section, even those issues with respect to which a Federal standard is in effect may be subject to State regulation so long as the State regulation is pursuant to a plan approved by the Secretary of Labor (see, 29 USC § 667[c]; Gade v. National Solid Wastes Mgt. Assn., supra, at 103-104, 112 S.Ct. at 2385-86). In 1973, New York submitted a plan that received the Secretary's approval, but the plan was withdrawn two years later (see, Berardi v. Getty Refining & Mktg. Co., 107 Misc.2d 451, 457, 435 N.Y.S.2d 212; see also, People v. Isadore Rosen & Sons, 79 Misc.2d 328, 330, 360 N.Y.S.2d 158). Thus, New York is not presently among the States opting for "reverse preemption" of Federal standards through the development and implementation of an approved State plan (see, Donovan v. Beloit Corp., 275 Ill.App.3d 25, 28, 211 Ill.Dec. 410, 411, 655 N.E.2d 313, 314; Drummonds, The Sister Sovereign States, op cit., at 495, 553).

Grove Roofing contends that sections 18(a) and (b) of the OSH Act impliedly preempt Industrial Code regulations adopted pursuant to the authorization of Labor Law § 241(6) because those State regulations address issues of worker safety for which Federal standards are in effect and, further, that New York may only supplant the Federal standards pursuant to an approved State plan. In support of that contention, Grove Roofing relies primarily upon Gade v. National Solid Wastes Mgt. Assn., supra. Our reading of Gade does not support the broad proposition advocated by Grove Roofing, that any State law regulating worker safety and...