Wilson v. City of New York

• Decision Date: 15 July 1996
• Docket Number: D,1869,Nos. 1589,s. 1589
• Citation: 89 F.3d 32
• Parties: Lindsey WILSON, Plaintiff-Appellant, v. CITY OF NEW YORK, New York City Health and Hospitals Corporation, Defendants-Third-Party-Plaintiffs- Appellees-Cross-Appellants, Millar Elevator Industries, Inc., Third-Party-Defendant-Cross-Appellee. ockets 95-9201, 96-7240.
• Court: U.S. Court of Appeals — Second Circuit

Page 32

89 F.3d 32

Lindsey WILSON, Plaintiff-Appellant, v. CITY OF NEW YORK, New York City Health and Hospitals Corporation Defendants-Third-Party-Plaintiffs- Appellees-Cross-Appellants Millar Elevator Industries, Inc. Third-Party-Defendant-Cross-Appellee.

Nos. 1589, 1869, Dockets 95-9201, 96-7240.

United States Court of Appeals Second Circuit.

Argued May 24, 1996.

Decided July 15,1996.

Robert Tolchin, New York City (David Jaroslawicz, Jaroslawicz & Jaros, on the brief), for Plaintiff-Appellant.

Kathleen Alberton, New York City (Paul A. Crotty, Corporation Counsel of City of New York, Larry A. Sonnenshein, on the brief), for Defendants-Third-Party-Plaintiffs-Appellees-Cross-Appellants.

David Bamberger, New York City (Lawrence A. Hoffman, Olshan Grundman Frome & Rosenzweig, on the brief), for Third-Party-Defendant-Cross-Appellee.

Before: KEARSE, WINTER, and CALABRESI, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiff Lindsey Wilson appeals from a final judgment of the United States District Court for the Southern District of New York, Whitman Knapp, Judge, dismissing his complaint seeking damages from defendants City of New York and New York City Health and Hospitals Corporation (collectively "the City") for personal injuries. Wilson contended that the City (a) was strictly liable under N.Y. Labor Law §§ 240(1) and 241(6) (McKinney 1986 & Supp.1996) because his injuries occurred while he was making repairs on City property, and (b) was liable under N.Y. Labor Law § 200 (McKinney 1986) for negligence in failing to provide him with a safe place to work. The district court granted summary judgment dismissing Wilson's claim under § 240(1) on the ground that the accident occurred while Wilson was engaged in maintenance work, not in "repair" work within the meaning of that section; dismissing his claim under § 241(6) for failure to show facts that could establish a violation of that section; and dismissing his claim under § 200 on the ground that he had not proffered sufficient evidence to make out a prima facie case of negligence. On appeal, Wilson contends principally that the district court erred in construing §§ 240(1) and 241(6) not to encompass the maintenance work he was performing, and that there were questions of fact that made the summary dismissal of his negligence claim improper. The City conditionally cross-appeals from so much of the judgment as dismissed its cross-claim against third-party-defendant Millar Elevator Industries, Inc. ("Millar"), for indemnification or contribution in the event that the City was found liable to Wilson. For the reasons below, we affirm the judgment and dismiss the cross-appeal as moot.

I. BACKGROUND

Harlem Hospital (the "Hospital") is a medical institution owned and operated by the City. In 1993, Millar performed maintenance services on the Hospital's elevators pursuant to a five-year contract with the City ("Maintenance Service Contract" or "Contract"). Wilson, a mechanic with 23 years' experience, was employed by Millar and was assigned to the Hospital as the on-premises elevator mechanic.

Wilson's duties included routine inspection and maintenance of the elevators and cleaning of the elevator pits. As part of his periodic maintenance tasks, Wilson inspected the bottoms of the elevators approximately three times a month. According to Wilson's deposition testimony, in performing that chore, he regularly stood on a four-inch-wide iron beam (the "I-beam") located 33 inches above the elevator-shaft floor. Approximately every six months, as part of the regular maintenance program, Wilson changed the elevators' roller guides, devices that allow elevators to move without wobbling or veering off track. Roller guides are located at the top and bottom of the elevator car. For replacement of the bottom guides, the elevator car was normally lowered so that its underside was some seven feet above the floor of the shaft.

On March 4, 1993, on the instructions of his supervisor Manuel Bonilla, an employee of Millar, Wilson attempted to replace the bottom roller guides on one of the Hospital's elevators. At approximately 11:30 a.m., Wilson descended into the elevator shaft via a ladder mounted on the wall below the basement; he worked from the ladder for about an hour and then stepped onto the I-beam. After working from the I-beam for a few minutes, he slipped and fell to the bottom of the elevator pit, injuring his knee, shoulder, and back.

Wilson commenced the present action in September 1993. He asserted, inter alia, that on the day of his fall there was no ladder for him to use instead of the I-beam and that the I-beam had been sprayed with a slippery substance he believed to be liquid insecticide. He claimed principally that the City was strictly liable under N.Y. Labor Law §§ 240(1) and 241(6) for failing to provide him with adequate safety devices or a safe work environment and for allowing him to use a makeshift scaffold (the I-beam) that was dangerous and defective. The City filed a third-party complaint against Millar, alleging principally that the Maintenance Service Contract obligated Millar to indemnify the City for any damages recovered by Wilson from the City due to negligence on the part of Millar. Following discovery, the City moved for summary judgment dismissing Wilson's complaint, contending that in connection with his accident (1) Wilson was performing ordinary maintenance work, which is not within the scope of the Labor Law sections on which he relied for his claim of strict liability, and (2) that Wilson could not show any negligence on the part of the City.

In support of its contention that replacement of the elevator roller guides was routine maintenance work, rather than repairs, the City relied principally on statements by Wilson and various documents, including its Maintenance Service Contract with Millar. The Contract provided, inter alia, that Millar would staff the Hospital with an on-site elevator mechanic to maintain and repair the Hospital's elevators. In a section entitled "PREVENTIVE MAINTENANCE SERVICE PROTOCOL" ("Preventive Maintenance Section") the Contract stated that Millar was

responsible to perform ... routine pre-scheduled preventive maintenance on the elevators, which shall include all repairs and or replacements of parts as required for proper operation of the elevator, and as set forth below on the routine preventive inspection protocols per period, so as to ensure at all times the proper operation of the equipment during the contractual period.

(Contract at 58.) That section provided a nonexhaustive list of preventive-maintenance activities to be performed by Millar on a periodic basis, including "QUARTERLY ... 11. Car. Check adjustment of car shoes or roller guides," and "SEMI-ANNUALLY ... 17. Roller Guides.... Lubricate roller guide pivots." (Id. at 61-62.) The Preventive Maintenance Section also stated that "[t]he terms 'check', 'observe', etc. ... mean clean, clear, repair, replace, adjust, lubricate or replenish lubricant, etc. if necessary." (Id. at 58.)

Consistent with these provisions, Wilson testified that the roller guides at the Hospital were routinely replaced every six months. He testified that before he attempted to replace the roller guides on March 4, 1993, the elevator was functional; it was temporarily taken out of service to permit him to replace the roller guides. In Wilson's March 4, 1993 daily work report, filed with the City as required under the Contract (see id. at 66 ("maintenance personnel prior to departure from the Hospital" to file a report of "all maintenance and repair work" they performed that day)), Wilson described his work that day as consisting of "Trouble shooting and Maintenance." His report did not indicate any problem in the functioning of the elevator on that date.

In support of its contention that Wilson could not show that the City had been negligent, the City presented evidence relating to the alleged unavailability of a ladder, the alleged presence of insecticide on the I-beam, and the City's lack of knowledge with respect to either circumstance. First, though not disputing, for purposes of summary judgment, Wilson's assertion that he frequently had stood on the I-beam, the City stated that it had no knowledge that he engaged in that practice. It submitted deposition testimony by a construction manager employed by the City and assigned to the Hospital, who testified that he had never seen a mechanic stand on the I-beam in order to perform work beneath an elevator car. Bonilla, Wilson's supervisor, testified that Millar had been given an equipment room at the Hospital, where it normally kept a ladder on which Wilson could have stood, instead of the I-beam, to replace the roller guides. Although Wilson testified in his deposition that he had no ladder to use on March 4 because "[p]robably two or three weeks prior" to that date, someone had broken into Millar's equipment room and stolen the ladder, Bonilla testified that it was Wilson's responsibility to report such a theft, and the City introduced the official Crime and Incident Report reflecting the report that Wilson made ("Theft Record"). The Theft Record stated that on the previous day, when Wilson

left RM 72 (steam flow meter room [where Millar's maintenance equipment was stored], the door was secure. When he returned at 1400 hrs. he found the front door busted open, [t]he lock ... had been broken off the door,

and that the "equipment ... discovered missing from the room" included the ladder. The Theft Record, however, was dated March 5, 1993, and it stated that the theft had occurred between 11:30 a.m. and 2:00 p.m. on March 4, 1993. Since March 4 was the date of Wilson's accident, the City argued that Wilson's own report showed that the ladder was not stolen until after Wilson went to attempt the roller-guide replacement during which his accident occurred, and thus that Wilson's use of the I-beam, rather than...