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POULIN v. E.I. DUPONT DENEMOURS & CO.

October 18, 1994

GREGORY POULIN, Plaintiff,
v.
E.I. DUPONT DENEMOURS AND COMPANY, et al., Defendant.



The opinion of the court was delivered by: CAROL E. HECKMAN

REPORT AND RECOMMENDATION

 This case was referred to the undersigned by Hon. Richard J. Arcara to hear and report on all dispositive motions pursuant to 28 U.S.C. § 636(b)(1)(B). Defendants have moved for summary judgment dismissing the complaint. For the following reasons, it is recommended that defendants' motion be granted.

 BACKGROUND

 Plaintiff commenced this action in state court on May 22, 1992 to recover damages for personal injury suffered in an accident that occurred on October 30, 1991 at the Niagara Falls, New York plant of defendant E.I. DuPont DeNemours & Company, Inc. ("DuPont"). DuPont removed the case to federal court on June 29, 1992, alleging diversity of citizenship based on plaintiff's Canadian residence (Item 1).

 In his amended complaint (Item 17), plaintiff alleges that at the time of the accident DuPont had a contract with defendant Morrison Knudsen Corporation ("Morrison Knudsen") to provide engineering and technical services at DuPont's facility on Buffalo Avenue in Niagara Falls. Plaintiff was an employee of Nicholson & Hall Corporation ("Nicholson & Hall"), which had a contract with DuPont to perform "boiler repair work" at the Niagara Falls plant (Item 31, Ex. F).

 On the day of the accident, plaintiff reported to work at Nicholson & Hall's shop on Columbia Street in Buffalo, New York. He was told by his supervisor, Gary Golembiewski, to report to DuPont's Niagara Falls plant to clean a condenser unit with Leonard Jankowski, another Nicholson & Hall employee. Plaintiff and Jankowski arrived at DuPont at approximately 8:00 a.m. They went to a trailer on the premises and reported to Sam Snyder, Morrison Knudsen's quality assurance manager (Item 31, Ex. K, pp. 31-33). At the trailer, plaintiff and Jankowski attended a safety orientation program along with several other outside contractors. The orientation consisted of a short video presentation and oral discussion addressing DuPont's general safety procedures for working in a chemical manufacturing plant. The orientation lasted approximately forty-five minutes (Item 31, Ex. L, pp. 26-27).

 After the orientation, plaintiff and Jankowski remained in the trailer for the rest of the morning awaiting further instructions for the work to be performed on the condenser unit. At approximately 1:30 p.m., a truck arrived from Nicholson & Hall carrying the tools that would be used for cleaning the condenser. Plaintiff and Jankowski then proceeded to the building where the condenser unit was located (Item 31, Ex. K, p. 38).

 The condenser unit is approximately 19 feet long and 54 inches in diameter. It is one of the primary condensers used by DuPont in the process of turning gaseous chlorine into liquid (Item 31, Ex. J, pp. 25-26, 49-50). When plaintiff and Jankowski arrived at the work site, the condenser head had been removed, exposing a "honeycomb" arrangement of several tubes covered by a "mucky" substance (Item 36, Poulin Aff., p. 47). The two men began cleaning the inside of the condenser tubes using a "turbining" method. This method utilized a metal rod, approximately three-eighths of an inch in diameter and 15 feet long, attached to a small electric motor, with a small wire brush attached to the other end of the rod (Item 31, Ex. M, pp. 22-23). Plaintiff held the motor end of the rod while Jankowski guided the brush end of the rotating rod into and out of the condenser tubes, using both hands. Jankowski wore work gloves with leather palms (Item 31, Ex. L, p. 43).

 Plaintiff and Jankowski continued cleaning the tubes in this manner until approximately 5:00 or 5:30 p.m., when Jankowski left for the day. At approximately 6:30 p.m., Nicholson & Hall employee Skip Evans arrived to replace Jankowski. Plaintiff and Evans resumed work cleaning the condenser tubes, with Evans holding the motor end of the rod and plaintiff guiding the rod in and out of the tubes (Item 31, Ex. K, pp. 63-66). Plaintiff was wearing tight-fitting leather gloves (id., p. 53).

 At approximately 7:30 p.m., plaintiff's leather gloves became saturated from the cleaning process. He noticed several pairs of black rubber gloves in a box near the condenser. He picked up a clean pair and put them on. They were dry, but loose-fitting (id., pp. 54-57, 84). He continued working wearing the rubber gloves, guiding the rotating rod into the condenser tubes with both hands, for another hour and a half (id., p. 69).

 At approximately 9:00 p.m. plaintiff was holding the rod with both hands at about the level of his nose, guiding the rotating rod over his left shoulder into a condenser tube, when the brush attached to the end of the rod broke inside the tube. The rod began to rotate at a faster rate, catching the loose-fitting rubber glove on plaintiff's right hand and twisting it around the rod. Plaintiff yelled to Evans, who was approximately six feet from plaintiff. Evans released the motor trigger and manually stopped the rod from spinning. When plaintiff's hand was free, Evans dropped the motor and went over to plaintiff. He removed the glove from plaintiff's right hand. Plaintiff's right index finger was nearly severed at the middle joint (Item 31, Ex. K, pp. 69-70; Item 36, Evans Aff., pp. 54-55).

 Evans took plaintiff first to Niagara Falls Memorial Hospital, and then to Millard Fillmore Hospital in Buffalo, where plaintiff's finger was surgically re-attached (Item 36, Evans Aff., pp. 60-61; Poulin Aff., p. 93). However, approximately two and a half weeks later, the finger was amputated at the middle knuckle (Item 36, Poulin Aff., p. 96).

 Plaintiff alleges that the accident was caused by the negligence of DuPont and Morrison Knudsen in failing to provide a safe workplace, equipment and supervision, in violation of New York State Labor Law §§ 200, 240 and 241 and state and federal safety regulations. He claims damages in the amount of $ 2,000,000.00 based on defendants' negligence, and $ 3,000,000.00 based on the alleged statutory and regulatory violations.

 DuPont and Morrison Knudsen have impleaded Nicholson & Hall as a third-party defendant, alleging contribution and indemnification under the general conditions of the service contract between Nicholson & Hall and DuPont (Item 10).

 DISCUSSION

 I. Summary Judgment.

 Summary judgment is appropriate if the pleadings, discovery materials, and affidavits on file "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Coach Leatherware Co., Inc. v. AnnTaylor, Inc., 933 F.2d 162, 166-67 (2d Cir. 1991). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., supra, 477 U.S. at 248; see Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849, 116 L. Ed. 2d 117, 112 S. Ct. 152, 112 S. Ct. 152, 116 L. Ed. 2d 117 (1991).

 Once the moving party has met its burden of demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely upon a "metaphysical doubt" concerning the facts, or on the basis of conjecture or surmise. Bryant v. Maffucci, supra (citing Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)). In order to avoid summary judgment, the non moving party is under the obligation "to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Burke v. Bevona, 931 F.2d 998, 1001 (2d Cir. 1991). "Entry of summary judgment indicates that no reasonable jury could return a verdict for the losing party." Coach Leatherware, Inc. v. Ann Taylor, Inc., supra, 933 F.2d at 167.

 Defendants DuPont and Morrison Knudsen move for summary judgment dismissing the complaint on the grounds that (1) neither the common law nor the state Labor Law impose a duty on the defendants to protect against the injuries sustained by plaintiff, and (2) the provisions of the state Labor Law relied on by plaintiff are inapplicable to this case. *fn1" Each of these grounds will be discussed in turn.

 II. Owner's Duties Under Common Law and Labor Law § 200.

 Section 200 of the New York Labor Law provides:

 
 
All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate ...

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