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April 28, 1995

BETHLEHEM STEEL CORPORATION, Defendant and Third Party Plaintiff. v. OLDMAN BOILER WORKS, INC., Third Party Defendant.

The opinion of the court was delivered by: WILLIAM M. SKRETNY


 Presently before this Court is the Bethlehem Steel Corporation's ("defendant") motion for summary judgment pursuant to Fed.R.Civ.P. 56.

 Norman E. Kaczmarek ("plaintiff") and his wife Emily Kaczmarek initiated this action based upon injuries plaintiff suffered at a plant owned by defendant while he was employed by Oldman Boiler Works which had contracted with defendant to perform certain repair work. The complaint asserts that defendant is liable under a theory of common law negligence as well as for violations of Labor Law §§ 200, 240, and 241(6). In addition, plaintiff also asserts a separate claim based on defendant's alleged violation of regulations promulgated pursuant to the Occupational Safety and Health Act, 29 U.S.C. § 651 et. seq ("OSHA"). Defendant's present motion seeks dismissal of all claims.

 In support of its motion for summary judgment, defendant has submitted the affidavit of defense counsel, Alan Wishnoff, Esq., with exhibits ("Wishnoff Aff."), a statement of material facts not in dispute, ("D.Statement"), a memorandum of law ("D.Memo"), a reply affidavit from defense counsel ("Wishnoff Reply"), a reply memorandum of law ("D.Reply"), and a supplemental memorandum of law with exhibits ("D.Supp."). In opposition to the motion, plaintiff has submitted the affidavit of plaintiff's counsel, Daniel J. Henry, Esq., with exhibits ("Henry Aff."), a statement of material facts in dispute ("P.Statement"), a memorandum of law ("P.Memo"), and a supplemental affidavit from plaintiff's counsel ("Henry Supp."). To the extent the exhibits attached to the parties submissions are excerpts from deposition transcripts, they shall be directly referenced as such. In addition to these submissions, this Court has also considered the arguments of counsel made on the record at the time of their appearance on October 14, 1994. In large part, many of these arguments were incorporated into the supplemental submissions received by the Court.

 Having considered the parties' respective arguments and the facts documented in the record, this Court shall grant defendant's motion for summary judgment for the reasons set forth below.


 The majority of the facts underlying the present action are not disputed by counsel. Instead, counsel primarily dispute the legal significance of these facts.

 On April 22, 1991, Purchase Order 1250-0422-3005N was issued by defendant to Oldman Boiler Works ("OBW") for the repair of pipelines in a pump house at defendant's manufacturing plant in Lackawanna, New York. (D.Statement P 3; *fn1" Wishnoff Aff. Ex. F.) The Purchase Order incorporated by reference the provisions of contract X500-103-9578-K ("Contract") previously entered into by OBW and defendant. (Id.)

FIRST. WORK CONTRACTED FOR:- The Contractor agrees to perform all the work (including the furnishing of all materials, tools, equipment, insurance, labor and supervision required therefor and all delivery, unloading, storage, construction and installation incidental thereto) shown on or called for by the plans and specifications designated as follows.
* * * * *
SEVENTH. RESPONSIBILITY AND INSURANCE:- The Contractor shall be solely responsible for the protection of the Work and of all equipment and materials to be used therein until final completion of the Work and shall promptly at its own expense repair any damage to the same, however caused. The Contractor shall properly guard the Work in order to prevent any person or persons being injured by it or by the condition of the Site and shall comply with the provisions of all applicable laws, ordinances, rules and regulations of any public body relating to the protection of or safe performance of the Work . . .
The Company assumes no obligation to furnish to the Contractor any tools, equipment or materials for the performance of the Work except as may be expressly provided herein.
* * * * *
SEVENTEENTH. INVESTIGATION BY CONTRACTOR:- The Contractor hereby represents that prior to the execution of this Agreement it has visited the Site and that opportunity has been given to it for, and it has made, any and all investigations desired relative to the condition of the Site and the character of the Work and the condition and circumstances under which the Work must be performed, and, furthermore, that it has examined and clearly understands the plans and every clause and section of this Agreement and of the specifications hereto attached.

 (Id.; D.Statement P 5.)

 Representatives of defendant and OBW met and/or discussed the project several times prior to and after commencing work. First, prior to the issuance of the Purchase Order pre-bid meetings were held at which outside contractors were invited to defendant's facility and the nature of the work to be performed was described and assessed. (Michalski Dep. at p. 20.) Anthony Michalski, Bethlehem's Mechanical Division Foreman who was the contact person if OBW had any questions regarding the repair project, testified that safety precautions were a "big issue" at these meetings and prospective contractors were directed to a reference chart that provided general guidelines for the types of breathing apparatus necessary for the job. (Id. at pp. 20, 39.) The discussions about safety and the necessity for breathing apparatus at the pre-bid meetings were likewise acknowledged by Edward Berger, the president of OBW. (Berger Dep. at p. 108.) Second, Michalski testified that prospective bidders would have been alerted to the presence of ammonia gas when they were given "walk throughs" of the work site and Berger acknowledged that at both the pre-bid meeting and again at the job site just before OBW began work defendant informed OBW that the job would involve exposure to ammonia fumes. *fn2" (Michalski Aff. at pp. 21-22; Berger at pp. 108-09; Harmon Dep. at p. 22.) Third, Michalski testified that once the contract was awarded to OBW, a safety meeting was held prior to the commencement of work on the project. (Id. at p. 26.)

 Plaintiff worked three full eight hour days repairing the pipeline. On the first day the severity of the smell from the fumes led plaintiff to complain to his foreman, Terrence Harmon, that better breathing equipment was needed. (Kaczmarek Dep. at pp. 49-50.) Despite the fact that OBW did not produce such equipment, plaintiff continued to work. For the first day and half of the project, plaintiff worked on a portion of the pipeline which was outside the pump house. The work then moved inside and plaintiff again complained to Harmon that better breathing equipment was needed. (Id. at 59.) Harmon tried to get approval to postpone the job, but that request was denied. (Id. at p. 60.) With about two hours remaining on the third day, the requested breathing equipment arrived. (Id. at p. 62.)

 Plaintiff was allegedly unable to return to work after finishing on the third day because of injuries suffered as a result of exposure to ammonia gas. *fn4" This lawsuit ...

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