Claimant's motion for summary judgment on his Labor Law 241 (6) cause of action alleging a violation of Rule 23-9.7 (d) is granted. The April 3, 2018 decision of the Court of Appeals in Rodriguez v City of New York is held to apply and claimant's potential comparative negligence, although an issue for trial, does not prevent the Court from granting claimant's motion for summary judgment. The State's cross-motion for summary judgment dismissing the causes of action for common law negligence and Labor Law 200 is also granted.
|Claimant(s):||JONATHAN V. WHITE|
|Claimant short name:||WHITE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended sua sponte to reflect to proper defendant|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||DOLCE PANEPINTO, P.C.
BY: Sean E. Cooney, Esq.
|Defendant's attorney:||RUPP BAASE PFALZGRAF CUNNINGHAM, LLC
BY: Kevin J. Kruppa, Esq.
|Third-party defendant's attorney:|
|Signature date:||May 11, 2018|
|See also (multicaptioned case)|
The claim alleges that on June 18, 2015, claimant Jonathan V. White was struck from behind by the trailer of a truck driving in reverse. The claimant was employed as a laborer on a road reconstruction project on Interstate Route 86 (I-86) near the overpass with Route 219 in the Town of Carrollton. The claim was filed on September 4, 2015 and alleges violations of Labor Law §§ 200 and 241 (6), as well as common law negligence. The defendant State of New York filed its answer on July 25, 2016. Claimant moves for summary judgment on the cause of action alleging a violation of Labor Law § 241(6), alleging that the State violated Industrial Code Rule § 23-9.7 (d) as a matter of law. The State opposes this motion and filed a cross-motion for summary judgment seeking to dismiss claimant's Labor Law § 241(6) cause of action, as well as his causes of action for common law negligence and Labor Law § 200.FACTS
In 2015, the State hired Oakgrove Construction (Oakgrove) as the prime contractor for the I-86 structural improvement project. Claimant was hired by Oakgrove as a laborer on this project. On June 18, 2015, an asphalt emulsion known as "tack coat" was being sprayed onto portions of the I-86. This was accomplished by Oakgrove utilizing a pick-up truck with a tank containing the tack coat placed onto an attached trailer. Claimant was assigned on that date to work with a laborer foreman, Judy Hochadel. As a laborer foreman, Hochadel managed the execution of the work and was responsible to see that the laborers performed the work in a safe manner. Hochadel also had the authority to instruct laborers, including claimant on safety issues and to instruct or correct laborers performing work in an unsafe manner.
Hochadel and claimant were assigned to perform some patch work on the highway with the tack coat utilizing a pick-up truck and trailer. Claimant testified at his deposition that he had experience performing tack coat and had done so every year since 1988 or 1989. However, claimant testified that on all but one occasion he had applied the tack coat with the truck following him traveling forward. Hochadel was to drive the pick-up truck and claimant was to use the wand connected to a hose to apply the tack coat to the highway. Instead of driving forward, Hochadel chose to perform this operation going in reverse. She acknowledged in her deposition testimony that it would have been safer for her to go forward and have claimant applying tack coat as she was facing him moving forward. Hochadel also admitted that she never received any formal training on how to use the tack wagon or under what circumstances to apply it while operating the pick-up truck in reverse.
Hochadel testified that she decided to complete the tack coat in the eastbound lane of Route I-86 from the River bridge to the Route 219 bridge while operating the pick-up truck in reverse. Claimant testified that he protested this decision and told her that it was dangerous. Claimant testified that he also told Hochadel that he had never applied tack coat in reverse on a long stretch of highway and in response was told by her that she was getting "pressure from her boss" and that he would be upset if she took the time to drive to make a U-turn to apply the tack coat while driving forward. Claimant testified that it would have taken only a couple of minutes to do the turn around. During her testimony, Hochadel also agreed that nothing prevented her from just backing up with claimant in the truck and then doing the entire section of highway while going forward.
At the time that Hochadel and claimant performed this operation, they were working alone and were several hundred feet from the other workers. Hochadel testified that she and claimant discussed hand signals to use to start and stop the truck and trailer. Claimant's task was to look forward away from the trailer to observe the next area of the highway that needed tack applied and then apply the tack once he reached that point. Claimant explained to Hochadel that he could not perform the hand signals for her if his back was turned to the truck. He testified that she then told him not to do the hand signals and just get the job done. Immediately prior to the accident, claimant was working directly behind the middle of the wagon where he was not visible to Hochadel. They had proceeded half the planned distance when the trailer struck claimant in the back of the ankles and pushed him down as the trailer proceeded over his ankles. Claimant yelled and Hochadel stopped the pick-up truck. Hochadel testified in her deposition that she did not stop the truck before striking claimant as he had continued to signal her to continue moving forward. Claimant denied that he had signaled Hochadel and testified that they had already stopped utilizing hand signals before the accident occurred. Hochadel admitted in her testimony that no spotter was assigned to work with them.DECISION
Summary judgment is a drastic remedy and will only be granted where the moving party establishes that there are no triable issues of fact (Vega v Restani Constr. Corp., 18 NY3d 499 ). The proponent of a summary judgment motion must present facts in evidentiary form sufficient to establish its right to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320 ; Zuckerman v City of New York, 49 NY2d 557 ). If the proponent of the motion fails to make a prima facie showing of entitlement to summary judgment, its motion must be denied regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., supra at 324). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of a triable issue of fact. (Alvarez v. Prospect Hosp., supra at 324; Zuckerman v City of New York, supra at 562.) Mere conclusions, unsubstantiated allegations or expressions of hope are insufficient to defeat a summary judgment motion. (Zuckerman v City of New York, supra at 562).
Preliminarily, claimant's reply and opposing memorandum states that claimant is not opposing the State's cross-motion for summary judgment dismissing the Labor Law § 200 cause of action or that New York Industrial Code Rules §§ 23-1.7 (e) and 1.29 are inapplicable as a basis for the Labor Law § 241 (6) cause of action. As such, the State's cross-motion for summary judgment is granted dismissing the Labor Law § 200 cause of action and Industrial Code Rules §§ 23-1.7 (e) and 1.29 do not apply as a basis for the Labor Law § 241 (6) cause of action.
Claimant moves for summary judgment on his Labor Law § 241 (6) cause of action which provides that:
All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.
The duty to comply with the Commissioner's regulations pursuant to Labor Law § 241(6) has been held to be nondelegable (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 ). Accordingly, if a viable claim under Labor Law § 241(6) exists, claimant need not show that the State exercised supervision or control over this worksite in order to establish his right of recovery. The claimant alleges that New York Industrial Code Rule § 23-9.7 (d) applies to the facts of this case and that the State violated that rule, which, in relevant part, provides that:
"[t]rucks shall not be backed or dumped in places where persons are working nor backed into hazardous locations unless guided by a person so stationed that he sees the truck drivers and the spaces in back of the vehicles."
The claimant has submitted the expert affidavit of Ernest J. Gailor, P.E. in support of this contention. Mr. Gailor's opinion is that this regulation is applicable to the facts of the subject accident and that the regulation was violated. It has been held that a trial court may rely upon an expert affidavit submitted in support of a motion for summary judgment pursuant to Labor Law § 241(6) to determine both the meaning of terms in an industrial code regulation and whether there was a violation of that regulation (Keneally v 400 Fifth Realty LLC, 110 AD3d 624 [1st Dept 2013]).
Mr. Gailor contends that the rule is applicable in that it prohibits the backing of trucks into areas where persons are working or in hazardous locations without a properly positioned guiding employee, the very circumstances of the underlying accident.(2) The State contends that the rule is not applicable, however, no expert affidavit was submitted to support its position. The State argues that this rule envisions situations where a truck is being backed into a work area and other workers are engaged in unrelated tasks and not paying attention to the movement of vehicles around them.(3) No authority is offered for this interpretation. A plain reading of this regulation indicates that there is no limiting language as argued by the State. The rule clearly states that "trucks shall not be backed . . . in places where persons are working." Its application is not restricted or limited to situations where a truck is being backed into a work area where workers nearby are engaged in unrelated tasks. The Court finds that the State's reliance upon the Court of Appeals decision in Salazar v Novalex Contr. Corp., 18 NY3d 134 (2011) to support its position is misplaced. Herein, the backing of a truck with the use of a spotter is not inconsistent with nor would it interfere with the performance of the assigned work, i.e., applying tack to a highway. The presence of the truck and wagon is integral to the work. The claimant was engaged in work in a hazardous location applying tack to a highway. Claimant's supervisor, who was operating the truck assisting in that work, rather than perform the work traveling forward, chose to do so traveling in reverse. The supervisor's decision to perform this work while the truck was backing up in reverse required that she then comply with this Industrial Code rule by utilizing a third worker, a spotter, who could maintain visual contact with her as she drove the truck. The claimant's accident occurred as a result of a failure to comply with this Industrial Code rule. As such, the Court finds as a matter of law that Industrial Code Rule § 23-9.7 (d) applies to the facts of this case (see Thompson v 1241 PVR, LLC, 104 AD3d 1298 [4th Dept 2013]; Velasquez v 795 Columbus LLC, 103 AD3d 541 [1st Dept 2013]).
The claimant alleges that the rule was violated when the claimant was ordered to work behind the truck and apply tack without a spotter assisting that process consistent with the subject rule. In support, Mr. Gailor states in his affidavit that the phrase "guided by a person" refers to what is known in the construction industry as a spotter. He cites to an OSHA publication entitled "Preventing Backovers" that states, in relevant part that "[s]potters are a proven method of protecting employees on foot behind vehicles with an obstructed view . . ." The OSHA publication also states that it is essential to "[i]nstruct spotters to always maintain visual contact with the driver while the vehicle is backing" and to "[n]ot give spotters additional duties while they are acting as spotters."(4) The addition of a third person to this work operation would have permitted claimant to focus on his work task, i.e., finding those areas that required the tack and then applying the tack coat. In turn, the spotter's task would be to observe the progress of claimant's work applying tack and maintain visual contact with the truck driver in order to permit the driver to proceed in reverse at a safe speed and pace and avoid striking the claimant as he worked behind the truck.
The State contends that the regulation was not violated as the claimant, the individual operating the wand, was the designated person to guide the truck while operating in reverse.(5) This argument is incompatible with the plain meaning of the subject rule, which states that the person guiding must be "so stationed that he sees the truck drivers and the spaces in back of the vehicles." Claimant testified that he was ordered by his foreman to apply the tack coat while the truck was traveling in reverse, which she knew would require him to face away from the truck in order to examine the highway and apply the tack. Claimant testified that he was standing directly behind the middle of the truck operating the wand to apply tack when he was struck.(6) As such, claimant was in no position to apply the tack and maintain visual contact with the driver at all times. The rule provides that there be one worker or "person so stationed" who would be assigned to assist the workers performing the task. The claimant was assigned the work of examining the highway surface for areas requiring the tack coat and then applying tack. As such, he could not perform the work and serve as the "person so stationed that he sees the truck drivers and the spaces in back of the vehicles." The subject rule clearly contemplates that a worker apart from the worker(s) performing the work fulfill the role of spotter. Accordingly, the Court finds as a matter of law that Industrial Code Rule § 23-9.7 (d) was violated.
Finally, the State contends that claimant's comparative negligence must be determined at trial as a question of fact exists so that even where a violation of a specific Industrial Code Rule is found to exist, that is merely some evidence to consider on the question of the State's liability pursuant to Labor Law § 241 (6), citing to Cummings v Doo Wha Sung, 142 AD3d 1393, 1394 (4th Dept 2016); Mulcaire v Buffalo Structural Steel Constr. Corp., 45 AD3d 1426, 1428 (4th Dept 2007); Sacchetti v Vasile Constr. Corp., 254 AD2d 777, 778 (4th Dept 1998); and Irwin v St. Joseph's Intercommunity Hosp., 236 AD2d 123, 131-132 (4th Dept 1997). In particular, the State argues that there is conflicting testimony between claimant and his foreman as to whether he continued to give hand signals to her to back up the truck immediately prior to his accident, which goes to claimant's comparative negligence and requires a trial and denial of the present motion. However, since the return date and oral argument of this motion on March 14, 2018, the Court of Appeals has issued a decision in Rodriguez v City of New York, 2018 WL 1595658, 2018 N.Y. Slip Op. 02287 (April 3, 2018), where it held that to the extent that decisions of the Appellate Divisions have held that a plaintiff must show an absence of comparative fault in order to obtain partial summary judgment on liability, that is an improper interpretation of CPLR Article 14-A (Id. at pp. 4-5). The Court of Appeals now holds that to be entitled to partial summary judgment on the issue of the defendant's negligence, the plaintiff (or claimant) "does not bear the double burden of establishing a prima facie case of defendant's liability and the absence of his or her own comparative fault" (Id. at 5). Accordingly, claimant's potential comparative negligence, although an issue for trial, does not prevent this Court from granting claimant's motion for summary judgment on Labor Law § 241 (6).
Accordingly, the claimant's motion for summary judgment on its Labor Law § 241 (6) cause of action alleging a violation of Industrial Code Rule § 23-9.7 (d) is granted. The State's cross-motion for summary judgment dismissing the Labor Law § 200 cause of action is granted and it is also stipulated that Industrial Code Rules §§ 23-1.7 (e) and 1.29 do not apply as a basis for the Labor Law § 241 (6) cause of action. Finally, the Court finds that the State did not supervise, direct or control claimant's work and that the equipment and training received by claimant all came from his employer, Oakgrove. Therefore, the Court also grants the State's cross-motion dismissing claimant's common law negligence cause of action.
May 11, 2018
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered
1. Notice of motion of Sean E. Cooney, Esq., with annexed Exhibits A-I dated February 20, 2018;
2. Notice of cross-motion of Kevin J. Kruppa, Esq., with annexed Exhibits A-K;
3. Memorandum of law of Sean E. Cooney, Esq. dated February 20, 2018;
4. Reply and opposing memorandum of Sean E. Cooney, Esq., dated March 12, 2018; and
5. Expert affidavit of Ernest J. Gailor, P.E., with annexed Exhibit A sworn to March 10, 2018.
2. Expert affidavit of Ernest J. Gailor, P.E., at paragraph 9.
3. Affirmation of Kevin J. Kruppa, Esq. at paragraph 42-46.
4. Expert affidavit of Ernest J. Gailor, P.E., at paragraph 10.
5. Affirmation of Kevin J. Kruppa, Esq. at paragraph 47-49.
6. Exhibit G, the examination of Jody Hochadel at pp. 51-52, 65-67 and Exhibit D, the examination before trial of Jonathan White at pp. 60-64.