Kahn v. Gates Const. Corp.

• Decision Date: 09 October 1984
• Citation: 480 N.Y.S.2d 351,103 A.D.2d 438
• Parties: Wyatt KAHN, Appellant, v. GATES CONSTRUCTION CORP., et al., Respondents; Undersea Systems, Inc., Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 351

480 N.Y.S.2d 351

103 A.D.2d 438

Wyatt KAHN, Appellant, v. GATES CONSTRUCTION CORP., et al., Respondents Undersea Systems, Inc., Third-Party Defendant-Respondent.

Supreme Court, Appellate Division Second Department.

Oct. 9, 1984.

Mirabel, Wortman & Freidel, Huntington (Norman Bard, Garden City, Beth J. Goldmacher, Westbury, and Melvin D. Freidel, Deer Park, of counsel), for appellant.

Frank B. Gass, New York City, for respondents Gates Const. Corp. and Suffolk Marine Constructors.

A. Paul Goldblum, Brooklyn, for respondent County of Suffolk.

Raymond C. Green, Mineola (Shayne, Dachs, Stanisci & Corker, Norman H. Dachs and Gilbert Klaperman, Mineola, of counsel), for third-party defendant-respondent.

Before MOLLEN, P.J., and TITONE, O'CONNOR and WEINSTEIN, JJ.

O'CONNOR, Justice.

On this appeal from a judgment dismissing plaintiff's complaint after the presentation of the plaintiff's case to the jury, the principal question is whether the plaintiff presented a prima facie case of common-law negligence, as well as violations of section 240 and subdivision 6 of section 241 of the Labor Law. Under the facts of this case, we answer the question in the affirmative. As a threshold issue, we also determine that the alleged applicability of maritime law does not affect the remedies available to and chosen by the plaintiff.

I

On June 16, 1978, plaintiff was a commercial diver employed by third-party defendant, Undersea Systems, Inc. (Undersea), a subcontractor of defendant Suffolk Marine Constructors (Marine). Marine was a joint venture comprised of several companies including defendant Gates Construction Corp. (Gates). Marine, as general contractor, was to construct an underwater outflow pipe for defendant Suffolk County (county). The pipe was to run two to three miles from the county's sewage facility out into the Atlantic Ocean where the effluent would be dispersed. Gates was the sole member of Marine to actively participate at the job site. Undersea was retained to do the underwater work necessary to join the several 600-foot steel and concrete pipe sections making up the sewage pipeline.

On the day of the accident, plaintiff and the crew were working on a section of pipe located approximately 2,800 feet (about one-half mile) offshore. They worked off a barge operated by Gates, which was positioned over the worksite and to which they were transported each day by tugboat. Immediately before the accident, plaintiff was underwater near the section of pipe about to be permanently positioned adjacent to the portion of the pipeline already completed.

In order to align the pipe sections and safeguard the alignment once made, a crane located on the diving barge would first lift the pipe's end to its proper position, as measured from the bottom of a trench dug on the ocean floor. Then the divers would lock the pipe into position by placing sand bags or concrete blocks, called "chocks", into the trench beneath the pipe. Cables which ran from the crane were attached to the pipe in order to lift it. The divers affixed these lift cables to one of the two chokers that encircled the ends of each pipe. The chokers were about 30 inches in length and were made of wire cable, approximately one inch in diameter. The choker had two eyes on either end; one eye was slipped into the other forming a noose around the pipe. The unused eye was attached to the lift cable which, when raised, would tighten the choker around the pipe. A "down line" used to send equipment from the barge to the diver also had to be affixed to some point on the pipe.

At the time of the accident, the inshore end of the pipe (i.e., the end adjacent to the completed pipeline) had already been lifted into position. The divers had also filled in the space beneath this end of the pipe and the trench dug out in the ocean floor by fitting in the chocks. The pipe was thus at least partially lying on the bottom of the trench on the ocean floor. When plaintiff dove into the water, he was told to stand by while the crane lifted the offshore end of the pipe to the proper level, and then to place the chocks beneath the pipe at the offshore end. The crane would hold the pipe in place while plaintiff filled in this space. As per the instructions of Marine's and Gates' supervisor, Onnie Mitchel, plaintiff was then to begin fitting the chocks under the pipe from the offshore end working back towards the inshore end.

Plaintiff noted that on the day in question underwater visibility in the work area around the pipe was zero; he found the pipe by feeling with his hands and feet. Gary Parsons, the Undersea supervisor, testified that at the time of the accident there were four-foot swells which caused the barge to go up and down and the lifting line to slacken and tighten. Part of the movement of the barge, according to Parsons, was due to the improper alignment of the barge over the work area; he complained about the barge's location to Marine's and Gates' site supervisor, but Mitchel refused to move the barge.

At trial, all witnesses conceded that just before the accident plaintiff was told to affix the down line to the same choker where the lifting cable was to be attached. Prior to attaching the down line, plaintiff objected over the communication system, asking whether the down line could be placed elsewhere, specifically on one of the floater balls firmly attached to the pipe approximately 10 feet from the choker. He expressed fears of getting caught in the pinch point between the choker and the pipe.

The response from the surface to plaintiff's request was that he either hook the down line to the choker or get out of the water. Thereupon, plaintiff hooked the down line to the choker on the offshore end of the pipe as instructed. He then got off the pipe, moved to the bottom of it, measured out approximately seven or eight feet from the choker and told the barge crew to raise the pipe. The pipe was then raised. As the pipe was raised, it started bouncing around, up and down and side to side. Plaintiff informed the barge crew that the pipe was bouncing. The surface crew told him, "Well, stay clear of things. We are going to be sending the chocks down pretty soon".

About three minutes after plaintiff had positioned himself next to the pipe, his feet on the ground, while he waited for the chocks which had not yet been sent down, he took his left hand off the pipe, felt something on the hand and tried unsuccessfully to pull his hand back. The hand was caught in the pinch point between the choker and the pipe, resulting in the loss of portions of three of his fingers.

At the close of plaintiff's case, defendants Gates and Marine moved to dismiss the complaint on the ground that plaintiff had not made out a prima facie case of common-law negligence and on the further ground that sections 240 and 241 of the Labor Law did not apply to the underwater activities in which the parties were engaged. Trial Term granted the motion in its entirety, dismissing the complaint, cross claims and third-party claims. The court reasoned that plaintiff could have removed himself from the water if he believed the job was unsafe and in the end it was plaintiff who, by failing to heed the instructions to stand clear, caused the accident. Furthermore, the court held that the Labor Law did not apply to the type of activity undertaken by the parties and that the workplace was not shown to be unsafe. We disagree with Trial Term's analysis and accordingly reverse.

II

A threshold question to be answered is what effect the law of admiralty has on this case in view of the accident's occurrence on the ocean floor approximately one-half mile off the shore of Long Island. This issue was not clearly raised during the trial and was not ruled upon by Trial Term. Indeed, on appeal, the defendants county, Gates and Marine only raise this issue in passing, claiming that somehow the existence of maritime law defeats plaintiff's common-law negligence and New York State Labor Law claims. We conclude, in any event, that the law of admiralty has no effect on plaintiff's claims and that even were this action to be decided in admiralty (an issue on which the court need not conclusively pass particularly as it was only cursorily raised for the first time on appeal), plaintiff's claims would still be viable.

As has often been stated, admiralty jurisdiction extends to those cases of damage or injury on navigable waters where the accident bears a significant relationship to traditional maritime activity (see Foremost Ins. Co. v. Richardson, 457 U.S. 668, 102 S.Ct. 2654, 73 L.Ed.2d 300; Executive Jet Aviation v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454; Scholl v. Town of Babylon, 95 A.D.2d 475, 466 N.Y.S.2d 976; U.S.Code, tit. 28, § 1333). While no one would deny that Long Island Sound, one-half mile from shore, is navigable, the precise question here is whether the accident occurred on navigable waters. It was uncontested at bar that the injury took place, and the alleged unsafe workplace existed, on the ocean bottom, beneath the navigable waters, one-half mile from the shore. Furthermore, the Submerged Lands Act (U.S.Code, tit. 43, § 1301, subd. par. ) specifically 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 line 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".

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...