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Rizzuto v. L.A. Wenger Contracting Co., Inc., 1998 N.Y. Int. 0023 (Mar. 31, 1998).

NEGLIGENCE -- LABOR LAW -- VICARIOUS LIABILITY

PLAINTIFF'S EVIDENCE OF DEFENDANT'S SUPERVISORY CONTROL OF THE WORKSITE AND VIOLATION OF A SPECIFIC STANDARD OF CONDUCT CREATES TRIABLE ISSUES OF FACT FOR A JURY.

[SUMMARY] | [ISSUES & DISPOSITIONS] | [AUTHORITIES CITED] | [COMMENTARY]

SUMMARY

Plaintiff's cause of action arises from a worksite accident while he was employed at the New York City Transit Authority Bus Terminal on 126th Street in Manhattan. Plaintiff was an employee of a sub-contractor hired by Defendant, the general contractor of the project.

Two Transit Authority workers were pressure testing an underground tank approximately ten to twelve feet from Plaintiff when the tank accidentally erupted, covering Plaintiff and the work area with diesel fuel. Upon attempting to leave the area, Plaintiff slipped and fell. He allegedly sustained serious injuries from the fall.

Plaintiff based his lawsuit from the fall on three causes of action: violations of N.Y. Labor Law § 241(6), N.Y. Labor Law § 200(1) and common law negligence. Plaintiff alleged that Defendant failed to exercise supervision and control of the site and violated specific safety rules and regulations, thereby proximately causing his injuries. The Supreme Court granted summary judgment for Defendant on all three claims, and the Appellate Division affirmed. Plaintiff appeals.

ISSUES & DISPOSITIONS

Issues

1. Whether the lower courts erred in concluding that as a matter of law Plaintiff failed to raise a triable issue of fact regarding Defendant's liability under N.Y. Labor Law § 241(6) despite Plaintiff's allegation that Defendant violated its regulatory obligation to provide safe footing under N.Y. Comp. Codes R. & Regs. tit. 12, § 23-1.7(d).

2. Whether the lower courts erred in summarily dismissing Plaintiff's N.Y. Labor Law § 200(1) and common law negligence causes of action despite Plaintiff's evidence of Defendant's authority and control over the activity that allegedly caused Plaintiff's injury.

Dispositions

1. Yes. Even though Defendant had no actual notice of the existence of or the potential for the diesel spill, Plaintiff's allegation that Defendant violated its regulatory obligation to provide safe footing under N.Y. Comp. Codes R. & Regs. tit. 12, § 23-1.7(d) was sufficient to raise a triable issue of fact under N.Y. Labor Law § 241(6) because the statute creates a nondelegable duty on Defendant for worksite injuries due to another party's negligence.

2. Yes. Plaintiff presented sufficient evidence to create a triable issue of fact regarding Defendant's authority and control over the activity that allegedly caused Plaintiff's injury, thereby sustaining a cause of action under both N.Y. Labor Law § 200(1) and common law negligence.

AUTHORITIES CITED

Cases Cited by the Court

  • Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876 (N.Y. 1993).
  • Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494 (N.Y. 1993).
  • Zimmer v. Chemung County Performing Arts, Inc., 65 N.Y.2d 513 (N.Y. 1985).
  • Long v. Forest-Fehlhaber, 55 N.Y.2d 154, rearg. denied, 56 N.Y.2d 805 (N.Y. 1982).
  • Russin v. Picciano & Son, 54 N.Y.2d 311 (N.Y. 1981).
  • Allen v. Cloutier Constr. Corp., 44 N.Y.2d 290 (N.Y. 1978).
  • Hammond v. International Paper Co., 577 N.Y.S.2d 526 (App. Div. N.Y. 1991).
  • Monroe v. City of New York, 414 N.Y.S.2d 718 (App. Div. N.Y. 1979).

Other Sources Cited by the Court

RELATED SOURCES

  • Stute v. P.B.M.C., Inc., 788 P.2d 545 (Wash. 1990).
  • Cohen v. Salt River Project, 736 P.2d 809 (Ariz. 1987).
  • Cafferkey v. Turner Const. Co., 488 N.E.2d 189 (Ohio 1986).
  • Atlantic Coast Development Corp. v. Napoleon Steel Contractors, Inc., 385 So.2d 676 (Fla. 1980).
  • Parks v. Pere Marquette R. Co. 23 N.W.2d 196 (Mich. 1946).

COMMENTARY

State of the Law Before Rizzuto

N.Y. Labor Law § 200 is a codification of the common law duty to maintain a safe construction site. It places the duty on an owner or general contractor as long as they "have the authority to control the activity bringing about the injury to enable it to avoid or correct the unsafe condition." Russin v. Picciano & Son, 54 N.Y.2d 311, 317 (N.Y. 1981); See Rizzuto at para. 17.

N.Y. Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon owners and contractors "to provide reasonable and adequate protection and safety" to persons employed in all areas where construction or demolition work is being performed. N.Y. Lab. Law § 241(6) (McKinney 1986). The legislative history of § 241 expresses an intent to place the "ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor." N.Y. Legis. Ann., 407-08 (1969). The court has held that § 241(6) imposes absolute liability on the general contractor for the subcontractor's negligence even in the absence of the general contractor's control or supervision of the worksite. See Allen v. Cloutier Constr. Corp., 44 N.Y.2d 290 (N.Y. 1978).

For the general contractor to incur liability under § 241(6), the duty alleged to have been violated must be a "specific, positive command" rather than a "reiteration of common law standards." Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494 (N.Y. 1993). Even so, a violation of an administrative regulation promulgated pursuant to statute is "simply some evidence of negligence which the jury could take into consideration with all other evidence bearing on that subject." Allen, 44 N.Y.2d at 298.

Effect of Rizzuto on Current Law

Contrary to the lower courts' finding, N.Y. Comp. Codes R. & Regs. tit. 12, § 23-1.7(d) is a specific regulation under § 241(6). Section 23-1.7(d) imposes an affirmative duty on employers to provide safe footing, requiring that any "foreign substance which may cause slippery footing shall be removed." Thus, violation of section 23-1.7(d) by a subcontractor is some evidence of the subcontractor's negligence.

Section 241(6) creates a nondelegable duty which makes the contractor "absolutely" responsible and imposes liability on the contractor for negligence by the subcontractor even if there was no actual control or supervision of the worksite by the contractor. See Rizzuto at paras. 8, 9 & 14. Actual or constructive notice to the contractor is not necessary because of the absolute duty under § 241(6). Therefore, the alleged violation of section 23-1.7(d) creates a triable issue of fact regarding Defendant's liability under N.Y. Labor Law § 241(6).

The court in Rizzuto finds that in both common law and its codification in N.Y. Labor Law § 200, a triable issue of fact exists because Defendant's project supervisor is able to control access to the work site so as to make sure that the area is not used by the Transit Authority while its work is in progress. Section 200 requires actual negligence on the part of the contractor and does not provide for vicarious liability.

Unanswered Questions

The court explains that the purpose of § 241(6) is to compel owners and general contractors to become more concerned with the safety practices of subcontractors. Yet it is accepted legal theory that a strict liability standard does not cause an actor to assume a greater level of care than would be invested under a negligence standard. Thus, it does not follow from the statute's alleged purpose that the court would want to interpret § 241(6) as a strict liability statute. How is the statute's purpose served if owners and general contractors are held liable for unsafe practices of which they had no reason to be wary?

It is possible that in future review of the nature of § 241(6) the court will reinterpret the statute as only preventing an owner or general contractor from claiming the defense of lack of control over a subcontractor's practices. Even without control over a subcontractor's practices, an owner or general contractor can still fire a subcontractor. Thus, with notice, an owner or general contractor can prevent an accident by removing a subcontractor, and the statute's purpose would be served because an owner or general contractor would have an incentive to learn about a subcontractor's safety reputation and future on-site plans.

Survey of the Law in Other Jurisdictions

The liability of general contractors for the injuries of subcontractor employees often depends on the degree of control exercised by the general contractor. For example, in Cafferkey v. Turner Construction Company, the Supreme Court of Ohio held that general contractors are not liable for injuries suffered by employees engaged in inherently dangerous behavior where the general contractor did not actively participate in supervision of the work of the subcontractor. Cafferkey v. Turner Const. Co., 488 N.E.2d 189, 192 (Ohio 1986).

Compare Stute v. P.B.M.C., Inc., where the Washington Supreme Court held that general contractors were responsible for job site safety because general contractors possessed "innate supervisory authority" over the job site. Stute v. P.B.M.C., Inc., 788 P.2d 545, 548 (1990). While the court further stated that general contractors without control over the working environment would not be held liable under this standard, as a practical matter general contractors have the requisite control to incur liability in nearly every situation. According to the court, the general contractor's innate supervisory authority constituted per se control over the job site. Id. at 464. Therefore, the general contractor was liable for statutory safety regulations as a matter of law. Id.

In Atlantic Coast Development Corp. v. Napoleon Steel Contractors, Inc., 385 So.2d 676, 679 (Fla. 1980), the court found that the general contractor's duty of care to employees of subcontractors was not delegable when the work performed by the workmen was inherently dangerous. In Cohen v. Salt River Project, 736 P.2d 809 (Ariz. 1987), a general contractor was held liable for injuries sustained by a subcontractor employee when he came into contact with a high-voltage power line. The court found that the general contractor was liable for not notifying the subcontractor of the risk of electrocution because the general contractor knew that the subcontractor's employees would be near high voltage power lines. Cohen v. Salt River Project, 736 P.2d 809, 812 (Ariz. 1987). Similarly, in a Michigan case the court stated that the general contractor's duty generally arises when special circumstances create a duty of a third party to supervise an employee's use of dangerous machinery such as trucks and earth movers. See Parks v. Pere Marquette R. Co., 23 N.W.2d 196 (Mich. 1946).

Prepared By:

  • Micah A. Acoba, '99
  • Andrew F. Fowler, '98
  • Scott R. Goldsmith, '99
  • Benita Lee, '99
  • Mark A. Metcalf, '98
  • Karen E. Pawlick, '99
  • Jason A. Shrensky, '98