Rizzuto v. L.A. Wenger Contracting Co., Inc.

Citation91 N.Y.2d 343,670 N.Y.S.2d 816
Parties, 693 N.E.2d 1068, 1998 N.Y. Slip Op. 2861 John RIZZUTO, Appellant, v. L.A. WENGER CONTRACTING CO., INC., Respondent.
Decision Date31 March 1998
CourtNew York Court of Appeals
OPINION OF THE COURT

LEVINE, Judge.

This action arises out of a worksite accident which occurred at the New York City Transit Authority Bus Terminal on 126th Street, in Manhattan. At the time of the accident, the 126th Street Terminal was undergoing rehabilitation, with various phases of construction, concrete and mechanical installations and excavations taking place in different areas of the depot. The bus depot, owned and operated by the Transit Authority, remained fully operational during this period. Pursuant to a contract with the Transit Authority, L.A. Wenger Contracting Company, the general contractor, was to accomplish the rehabilitation work at the depot, and Milo Mechanical, a subcontractor of defendant, was to perform certain plumbing and mechanical work. Plaintiff John Rizzuto was employed by Milo Mechanical as a plumbing foreman and supervisor.

There was evidence adduced in pre-trial discovery that on the date of the accident, plaintiff and an assistant, also employed by Milo, were removing and replacing a submersible pump in the fuel station area of the bus depot. Two Transit Authority employees, working approximately ten to twelve feet to his left, informed plaintiff that they were planning to pressure-test an underground tank for leakage. Plaintiff subsequently observed an eruption of fluid from the area in which the Transit Authority workers were testing the tank and, in the course of his installation, plaintiff and his immediate work area were suddenly sprayed with diesel fuel. According to plaintiff's deposition, the fuel "sprayed all over [him] and the floor," covering his arms, chest, head and clothing. Upon being sprayed, plaintiff stood up and, as he attempted to leave the work area to clean himself off, "both of [his] feet slipped out from underneath [him] at the same time" and he fell, allegedly sustaining serious personal injuries.

Plaintiff commenced the instant action against the general contractor (defendant L.A. Wenger), asserting causes of action sounding in common law negligence, and violations under Labor Law §§ 200(1) and 241(6). Plaintiff alleged that defendant violated certain specific safety rules and regulations, and that defendant's negligence caused, allowed or permitted an unsafe and hazardous condition to be present in the depot. Plaintiff also claimed that defendant retained supervision and control of the construction site throughout the rehabilitation, and that its failure to exercise such supervision and control, so as to provide him with reasonable and adequate protection, was the proximate cause of the injuries he sustained.

Supreme Court granted defendant's motion for summary judgment in its entirety. It found no factual basis for liability under plaintiff's common law negligence or Labor Law § 200 claims because the evidence failed to establish that the general contractor exercised supervisory control over the construction site or the work activity bringing about the injury. The court also found no merit in plaintiff's Labor Law § 241(6) cause of action, concluding that neither the provisions of the State Industrial Code (12 NYCRR part 23) nor the various Federal Occupational Safety & Health Administration (OSHA) regulations (29 CFR ch. XVII-Labor), upon which plaintiff relied, were applicable to the instant claim.

The Appellate Division affirmed (237 A.D.2d 500, 656 N.Y.S.2d 889). That court agreed with Supreme Court's reasoning regarding the lack of merit to plaintiff's common law negligence and Labor Law § 200 causes of action. With respect to plaintiff's claim under Labor Law § 241(6), the court also found dismissal warranted because "the evidence demonstrates that the [general contractor] did not have actual or constructive notice of any dangerous condition which may have caused the accident" (id., at 501, 656 N.Y.S.2d 889. [emphasis supplied] ). We granted plaintiff leave to appeal, and now reverse the Appellate Division order and reinstate all three causes of action.

I.

We conclude that the Appellate Division erred in dismissing the Labor Law § 241(6) cause of action based on its determination that such a claim is defeated by the absence of notice, to the general contractor, of the hazardous condition causing the injury. We also conclude that Supreme Court erred in finding that none of the regulatory provisions upon which plaintiff relied set forth the requisite specific standard giving rise to a nondelegable duty under section 241(6).

Labor Law § 241(6), by its very terms, imposes a nondelegable duty of reasonable care upon owners and contractors "to provide reasonable and adequate protection and safety" to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed (see also, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501-502, 601 N.Y.S.2d 49, 618 N.E.2d 82; Long v. Forest-Fehlhaber, 55 N.Y.2d 154, 160, 448 N.Y.S.2d 132, 433 N.E.2d 115, rearg. denied 56 N.Y.2d 805, 452 N.Y.S.2d 1026, 437 N.E.2d 1161; Allen v. Cloutier Constr. Corp., 44 N.Y.2d 290, 299-300, 405 N.Y.S.2d 630, 376 N.E.2d 1276, rearg. denied 45 N.Y.2d 776, 408 N.Y.S.2d 1027, 380 N.E.2d 350). Indeed, the history underlying section 241, as amended, clearly manifests the legislative intent to place the "ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor" (1969 N.Y. Legis. Ann., at 407-408 [emphasis supplied]; see also, Allen v. Cloutier Constr. Corp., 44 N.Y.2d at 300, 405 N.Y.S.2d 630, 376 N.E.2d 1276, supra).

Deeming this responsibility to be "absolute" (Allen v. Cloutier Constr. Corp, supra, at 300, 405 N.Y.S.2d 630, 376 N.E.2d 1276), we held that section 241(6) imposes liability upon a general contractor for the negligence of a subcontractor, even in the absence of control or supervision of the worksite (see, id.; see also, Ross v. CurtisPalmer Hydro-Elec. Co., supra, at 502, 601 N.Y.S.2d 49, 618 N.E.2d 82; Long v. Forest-Fehlhaber, supra, at 159-160, 448 N.Y.S.2d 132, 433 N.E.2d 115). We also recognized, however, the "clear distinction" between a violation of an administrative regulation promulgated pursuant to statute, and a violation of an explicit provision of a statute proper: while the latter gives rise to absolute liability without regard to whether the failure to observe special statutory precautions was caused by the fault or negligence of any particular individual, the former is "simply some evidence of negligence which the jury could take into consideration with all the other evidence bearing on that subject" (Allen v. Cloutier Constr. Corp., supra, at 298, 405 N.Y.S.2d 630, 376 N.E.2d 1276 [emphasis supplied]; see also, Monroe v. City of New York, 67 A.D.2d 89, 103-107, 414 N.Y.S.2d 718).

In Long v. Forest-Fehlhaber, we similarly contrasted the nondelegable nature of the duty of reasonable care imposed on owners and contractors under subdivision six with the duty arising under the first five subdivisions of section 241 (55 N.Y.2d at 159-160, 448 N.Y.S.2d 132, 433 N.E.2d 115, supra, citing Monroe v. City of New York, 67 A.D.2d at 103, 414 N.Y.S.2d 718, supra). In Forest-Fehlhaber, we also reiterated the principle "long and firmly established in New York" (55 N.Y.2d at 160, 448 N.Y.S.2d 132, 433 N.E.2d 115, supra) that, unlike a violation of an explicit and definite statutory provision which demonstrates negligence as a matter of law, a violation of section 241(6) "is 'merely some evidence which the jury may consider on the question of defendant's negligence' " (id. [quoting Teller v. Prospect Hgts. Hosp., 280 N.Y. 456, 460, 21 N.E.2d 504] [emphasis supplied]; see also, Mirabel and Levy, The Law of Negligence § 46, at 57-58 [1962] ).

Most recently, in Ross v. Curtis-Palmer Hydro-Elec. Co. (supra), we refined the standard of liability under section 241(6) by requiring that the rule or regulation alleged to have been breached be a "specific, positive command" (81 N.Y.2d at 504, 601 N.Y.S.2d 49, 618 N.E.2d 82, supra), rather than a "reiteration of common-law standards" which would merely incorporate into the State Industrial Code a general duty of care (id.). We distinguished between Code provisions "mandating compliance with concrete specifications and those that establish general safety standards" (id., at 505, 601 N.Y.S.2d 49, 618 N.E.2d 82), cautioning that any other rule would permit recovery under section 241(6) against a nonsupervising owner or general contractor merely by application of broad, nonspecific regulatory language and "would seriously distort the scheme of liability * * * that has been developed in our case law" (id.).

As the foregoing demonstrates, although this Court has consistently rejected the notion that a violation of section 241(6) results in absolute liability irrespective of the absence of some negligent act which caused the injury, we have repeatedly recognized that section 241(6) imposes a nondelegable duty upon an owner or general contractor to respond in damages for injuries sustained due to another party's negligence in failing to conduct their construction, demolition or excavation operations so as to provide for the reasonable and adequate protection of the persons employed therein. Thus, once it has been alleged that a concrete specification of the Code has been violated, it is for the jury to determine whether the negligence of some party to, or participant in, the construction project caused plaintiff's injury. If proven, the general...

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