Rocovich v. Consolidated Edison Co.
| Decision Date | 26 November 1990 |
| Parties | Donald ROCOVICH, Appellant-Respondent, v. CONSOLIDATED EDISON COMPANY, Defendant Third-Party Plaintiff-Respondent-Appellant, King Insulation Company, Incorporated, Third-Party Defendant Respondent-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Charles A. Giulini, Jr., New York City (Neil G. Marantz, on the brief), for appellant-respondent.
Meiselman, Boland, Reilly & Fugazzi, Mineola (John J. Reilly, of counsel), for defendant third-party plaintiff-respondent-appellant.
Raymond C. Green, New York City (Herzfeld & Rubin, P.C. [Herbert Rubin, David B. Hamm and Miriam Skolnick], of counsel), for third-party defendant respondent-appellant.
Before MANGANO, P.J., and THOMPSON, SULLIVAN and ROSENBLATT, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, (1) the plaintiff appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Queens County (Durante, J.), dated January 12, 1989, as, upon a jury verdict, apportioned 90% of the fault in the happening of the accident to him, and 10% of the fault in the happening of the accident to the defendant third-party plaintiff, and limited his net award of damages accordingly, (2) the third-party defendant King Insulation Company, Incorporated, cross-appeals, as limited by its brief, from so much of the same judgment as is in favor of the defendant third-party plaintiff and against it in the sum of $8,059.70, and (3) the defendant third-party plaintiff has filed a notice of cross appeal from the judgment.
ORDERED that the cross appeal by the defendant third-party plaintiff is dismissed as abandoned, without costs or disbursements; and it is further,
ORDERED that the judgment is modified, on the law, by deleting the second decretal paragraph thereof, and substituting therefor a provision dismissing the third-party complaint; as so modified, the judgment is affirmed, without costs or disbursements.
On May 10, 1984, the plaintiff, a construction worker, was performing asbestos insulation work at the Hudson Avenue Station, a power plant owned and operated by the defendant third-party plaintiff Consolidated Edison Company. At the time, the plaintiff was employed by the third-party defendant King Insulation Company, Incorporated, who in turn was under contract with Consolidated Edison Company to perform the work.
The plaintiff's job was to replace and repair insulation on a series of large pipes located on the roof of the power plant. The pipes were located in a recessed area. In the center of the recessed area and adjacent to the plaintiff's work area was a trough, containing hot oil collected from the overflowing tanks, which led to the plant's boilers, where it would be used to generate electricity. In the course of his duties, the plaintiff attempted to cross the trough, which was approximately 12 inches wide and 12 inches deep, and in doing so slipped and fell, severely burning his foot and leg.
We reject the plaintiff's contention that the court should have applied Labor Law § 240(1) rather than Labor Law § 241 (6) to the instant case (see, Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 493 N.Y.S.2d 102, 482 N.E.2d 898). Labor Law § 240(1), which imposes absolute liability, is addressed to situations in which a worker is exposed to the risk of falling from an elevated work site or being hit by an object falling from an elevated work site (see, Siragusa v. State of New York, 117 A.D.2d 986, 987, 499 N.Y.S.2d 533). Workers exposed to the usual dangers of construction are covered by Labor Law § 241(6) (see, Yaeger v. New York Tel. Co., 148 A.D.2d 308, 538 N.Y.S.2d 526). While Labor Law § 240(1) is to be liberally construed (see Zimmer v. Chemung County Performing Arts, supra, 65 N.Y.2d at 520-521, 493 N.Y.S.2d 102, 482 N.E.2d...
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