Rice v. City of Cortland
| Decision Date | 10 June 1999 |
| Parties | Thad J. RICE, Appellant-Respondent, v. CITY OF CORTLAND, Respondent, and Reith's Hole Drilling Service Inc., Respondent-Appellant. (And a Third-Party Action.) |
| Court | New York Supreme Court — Appellate Division |
Cherundolo, Bottar & Leone, P.C. (Edward S. Leone of counsel), Syracuse, for appellant-respondent.
Chernin & Gold, L.L.P. (Christopher A. Pogson of counsel), for City of Cortland, respondent.
Smith, Sovik, Kendrick & Sugnet, P.C. (Mary Kendrick-Gaffney of counsel), Syracuse, for respondent-appellant.
Before: CARDONA, P.J., MERCURE, SPAIN, CARPINELLO and GRAFFEO, JJ.
Cross appeals from an order of the Supreme Court (Rumsey, J.), entered March 27, 1998 in Cortland County, which, inter alia, denied plaintiff's cross motion for summary judgment and partially denied a motion by defendant Reith's Hole Drilling Service Inc. for summary judgment dismissing the complaint against it.
Plaintiff was injured in June 1994 while engaged in a construction and renovation project at the waste treatment plant owned by defendant City of Cortland and while in the employ of third-party defendant Structural Associates Inc., the general contractor. As part of the project, Structural had hired defendant Reith's Hole Drilling Service, Inc. to drill four wells and install temporary outer casings therein to enable Structural to dewater the new aeration basins and install the permanent, inner casing (i.e., the PVC pipe) in the wells. Structural directed plaintiff to assist Reith's digging operations and Structural's placement of the PVC pipe into the newly dug holes. On the day of the accident, Reith workers drilled and cleaned the second well and after its rig operator lowered a metal cable from the boom of the drill rig, a Reith employee grabbed the cable and began walking it to the PVC pipe 25 feet away. When plaintiff grabbed the drill rig's metal cable in an effort to hook it to the nylon strap around the pipe that was to be placed into the well hole five feet away, the cable came into contact with overhead electric power lines and plaintiff was electrocuted, sustaining electrical burns.
Plaintiff thereafter commenced separate actions, later consolidated, against the City and Reith alleging violations of Labor Law §§ 200, 240(1) and § 241(6), as well as common-law negligence, but later withdrew claims as against the City premised upon Labor Law §§ 200 and 240(1). Reith brought a third-party action against Structural claiming it was responsible for plaintiff's injuries and seeking indemnification and/or contribution. The parties moved and cross-moved for summary judgment. Supreme Court--as relevant to this appeal--partially granted Reith's summary judgment motion dismissing all of plaintiff's Labor Law causes of action against it, but denied Reith's motion directed at plaintiff's common-law negligence claim. Reith now cross-appeals seeking summary judgment dismissing plaintiff's negligence claim. We agree with Reith's contention on appeal that this claim should have been dismissed upon Reith's motion. Supreme Court also granted the City's motion for summary judgment dismissing plaintiff's remaining claims against it premised upon Labor Law § 241(6) and common-law negligence. 1 Plaintiff herein appeals from (1) the dismissal of his Labor Law §§ 200 and 241(6) claims against Reith, which we affirm, and (2) the dismissal of his Labor Law § 241(6) claim against the City, which we reverse.
On plaintiff's appeal, he argues that Supreme Court improperly granted Reith's motion for summary judgment dismissing plaintiff's causes of action predicated upon Labor Law §§ 200 and 241(6). Under settled principles, we disagree. Labor Law § 241(6) imposes a nondelegable duty on owners and contractors and their agents to provide adequate safety protection for workers and to comply with specific safety rules and regulations promulgated by the Commissioner of Labor (see, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501-504, 601 N.Y.S.2d 49, 618 N.E.2d 82; see also, Rizzuto v. Wenger Contr. Co., 91 N.Y.2d 343, 348, 670 N.Y.S.2d 816, 693 N.E.2d 1068). However, Reith was a subcontractor on this project whose liability as a statutory "agent" under this provision is limited to those areas and activities within the scope of work delegated to it, i.e., where it has been given authority to supervise and control the injury producing activity (see, Russin v. Picciano & Son, 54 N.Y.2d 311, 318, 445 N.Y.S.2d 127, 429 N.E.2d 805; Decotes v. Merritt Meridian Corp., 245 A.D.2d 864, 866, 666 N.Y.S.2d 763; Riley v. S & T Constr., 172 A.D.2d 947, 948, 568 N.Y.S.2d 227, lv. denied 78 N.Y.2d 853, 573 N.Y.S.2d 467, 577 N.E.2d 1059; Bjelicic v. Lynned Realty Corp., 152 A.D.2d 151, 154, 546 N.Y.S.2d 1020, appeal dismissed 75 N.Y.2d 947, 555 N.Y.S.2d 693, 554 N.E.2d 1281). Similarly, liability against a subcontractor based upon a claimed violation of Labor Law § 200--which codifies the common-law duty of an owner or general contractor to provide a safe workplace--requires a showing that authority was conferred on the subcontractor to supervise and control the activity which produced the injury (see, Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877, 609 N.Y.S.2d 168, 631 N.E.2d 110; see also, Rizzuto v. Wenger Contr. Co., supra, at 352, 670 N.Y.S.2d 816, 693 N.E.2d 1068; Russin v. Picciano & Son, supra, at 317, 445 N.Y.S.2d 127, 429 N.E.2d 805; Decotes v Merritt Meridian Corp., supra, at 865-866, 666 N.Y.S.2d 763).
The evidence in the record indisputably demonstrates that the injury-producing activity in which plaintiff was engaged at the time of the accident was the movement and installation of the PVC pipes, which was at Structural's direction and under its control. The record reflects that Reith owned the drill rig used to move the PVC pipe into the wells and its employees were operating it and participating in Structural's task of moving the piping when the accident occurred. This activity was Structural's responsibility and was not delegated to Reith, nor was it part of Reith's contractual duties, which were limited to drilling four wells and installing temporary outer casings. Indeed, plaintiff testified that only Structural directed and controlled his work. The fact that plaintiff was injured in the course of Reith's use and operation of its drilling rig equipment while assisting Structural's movement and installation of the pipes did not constitute authorization for Reith to supervise, direct or control this activity or plaintiff's work (see, Walsh v. Sweet Assocs., 172 A.D.2d 111, 114, 577 N.Y.S.2d 324, lv. denied 79 N.Y.2d 755, 581 N.Y.S.2d 666, 590 N.E.2d 251). Reith, the subcontractor, cannot be charged with breach of a duty to maintain a safe worksite where it did not have the authority to correct unsafe conditions or to control the contractor's activity underway (see, Rizzuto v. Wenger Contr. Co., supra, at 352-353, 670 N.Y.S.2d 816, 693 N.E.2d 1068; Decotes v Merritt Meridian Corp., supra, at 865, 666 N.Y.S.2d 763). Based upon the foregoing, Supreme Court correctly awarded Reith summary judgment dismissing plaintiff's claims against it predicated upon Labor Law §§ 200 and 241(6).
By parity of reasoning, Reith's contention on appeal is correct that Supreme Court should have awarded it summary judgment dismissing plaintiff's common-law negligence claims against it. It has been repeatedly held that a precondition to the common-law duty imposed--like its later codification in Labor Law § 200--to provide construction site workers with a safe place to work "is that the party charged with that responsibility have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition" (Russin v. Picciano & Son, supra, at 317, 445 N.Y.S.2d 127, 429 N.E.2d 805; see, Rizzuto v. Wenger Contr. Co., supra, at 352, 670 N.Y.S.2d 816, 693 N.E.2d 1068; Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877, 609 N.Y.S.2d 168, 631 N.E.2d 110, supra; Allen v. Cloutier Constr. Corp., 44 N.Y.2d 290, 299, 405 N.Y.S.2d 630, 376 N.E.2d 1276). Applying these principles to the facts herein, no negligence liability will attach to a subcontractor where, as here, there is no showing of authority to control the injury-producing activity in which plaintiff was engaged under the direction and supervision of his employer, the general contractor (see, Decotes v. Merritt Meridian Corp., supra, at 865, 666 N.Y.S.2d 763). As noted, Reith's operation of its own rig to assist Structural's movement of the pipes, while arguably contributing to the dangerous condition, did not confer authority on Reith to control either plaintiff's activities, the manner of Structural's work or the overall operation and safety of this worksite (see, Walsh v. Sweet Assocs., supra, at 114, 577 N.Y.S.2d 324; see also, Decotes v. Merritt Meridian Corp., supra ). Thus, Reith was entitled to summary judgment dismissing plaintiff's common-law negligence claim as well.
However, we agree with plaintiff's contention that Supreme Court should not have dismissed his Labor Law § 241(6) cause of action as against the City. To recover under this provision, plaintiff was required to demonstrate a breach of a regulation containing specific...
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