Williams v. White Haven Memorial Park, Inc.

• Decision Date: 31 May 1996
• Citation: 227 A.D.2d 923,643 N.Y.S.2d 787
• Parties: Richard WILLIAMS, Respondent, v. WHITE HAVEN MEMORIAL PARK, INC., Appellant. WHITE HAVEN MEMORIAL PARK, INC., Third-Party Plaintiff, v. ARTHUR V. TOWNER, INC., Third-Party Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 787

643 N.Y.S.2d 787

227 A.D.2d 923

Richard WILLIAMS, Respondent, v. WHITE HAVEN MEMORIAL PARK, INC., Appellant.

WHITE HAVEN MEMORIAL PARK, INC., Third-Party Plaintiff, v. ARTHUR V. TOWNER, INC., Third-Party Defendant-Appellant.

Supreme Court, Appellate Division Fourth Department.

May 31, 1996.

Osborn, Reed, Burke and Tobin, L.L.P. by Paul Riordan, Pittsford, for Appellants.

Allen J. Zaretsky by Philip Abramowitz, Rochester, for Respondent.

Before GREEN, J.P., and FALLON, WESLEY, DAVIS and BOEHM, JJ.

MEMORANDUM:

Supreme Court erred in denying that part of defendant's motion for summary judgment dismissing the Labor Law § 240(1) cause of action and in granting partial summary judgment to plaintiff on that cause of action. Plaintiff, an employee of third-party defendant, was injured while moving a 250-pound tamper-plate machine, a device used to compact earth. He was guiding the machine down a slope of an open trench when the ground beneath him gave way, causing him to slide down the slope into the trench. He collided with a manhole located at the bottom of the trench. The machine also slid down the slope, landing on top of plaintiff.

We conclude that the Labor Law § 240(1) cause of action cannot be sustained. "[A]t the time of the incident, plaintiff was not performing any task at an elevated worksite and was not exposed to the type of hazard that the use or placement of the safety devices enumerated in Labor Law § 240(1) was designed to protect against" (Radka v. Miller Brewing, 182 A.D.2d 1111, 583 N.Y.S.2d 87; see, Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513-514, 577 N.Y.S.2d 219, 583 N.E.2d 932; Adamczyk v. Hillview Estates Dev. Corp., 226 A.D.2d 1049, 641 N.Y.S.2d 925 [decided herewith]. Moreover, absolute liability under Labor Law § 240(1) for injuries sustained by a worker who slid down a slope is wholly unwarranted (see, Staples v. Town of Amherst, 146 A.D.2d 292, 300, 540 N.Y.S.2d 926).

The court further erred in denying that part of defendant's motion for summary judgment dismissing the Labor Law § 241(6) cause of action. "To make out a prima facie cause of action pursuant to Labor Law § 241(6), plaintiffs must allege that defendants violated a rule or regulation of the Commissioner of Labor that sets forth a specific standard of conduct as opposed to a general reiteration of common-law principles" (Adams v. Glass Fab, 212 A.D.2d 972, 973, 624 N.Y.S.2d 705). Plaintiff alleges that defendant violated numerous rules and regulations of the Commissioner of Labor and two Occupational Safety and Health Administration (OSHA) standards. Sections 23-1.3, 23-1.5(a), 23-1.5(c)(2) and 23-1.5(c)(3) of the Industrial Code (12 NYCRR) are general provisions and thus do not provide a basis for liability under Labor Law § 241(6) (see, McGrath v. Lake Tree Vil. Assocs., 216 A.D.2d 877, 629 N.Y.S.2d 358; Stairs v. State St. Assocs., 206 A.D.2d 817, 818, 615 N.Y.S.2d 478). The remaining sections of the Industrial Code relied upon by plaintiff are not applicable to this case. Lastly, violations of OSHA standards do not...