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SMITH v. E.I. DUPONT DE NEMOURS & CO.

United States District Court, W.D. New York


March 30, 2004.

MATTHEW D. SMITH, Plaintiff,
v.
E.I. DUPONT DE NEMOURS & CO., Defendant/Third Party Plaintiff, v. O'CONNELL ELECTRIC CO., Third Party Defendant.

The opinion of the court was delivered by: WILLIAM SKRETNY, District Judge

DECISION & ORDER

I. INTRODUCTION

In this case, Plaintiff Matthew D. Smith alleges that he was injured as a result of the negligent and unlawful conduct of Defendant E.I. duPont de Nemours & Co. ("DuPont"). Specifically, Plaintiff contends that DuPont is liable for injuries that he sustained while performing electrical work at a DuPont plant located in Buffalo, New York. Currently before this Court are motions for summary judgment filed by Plaintiff and DuPont.

  II. BACKGROUND

  A. Facts

  The following facts are undisputed for purposes of the present motions. DuPont is a science and technology company based in Delaware and authorized to do business in New York. In April of 2000, DuPont entered into a contract with O'Connell Electric Company, a New York corporation that specializes in electrical work. . (DuPont's Rule 56 Statement, ¶ 1). Under the terms of that contract, O'Connell agreed to perform electrical work at a DuPont plant located in Buffalo, New York ("the DuPont plant"). Id.

  At the times relevant to this action, Plaintiff was employed by O'Connell as an apprentice electrician. (Plaintiff's Rule 56 Statement, ¶ 1). On May 4, 2000, Plaintiff was installing electrical ducts at the DuPont plant. (DuPont's Rule 56 Statement at ¶ 16). During the course of the day, Plaintiff generally worked from the first or second step of a ten-foot step ladder provided by O'Connell. Id. at ¶¶ 17,18. When he was working on the second step and wanted to descend, Plaintiff stepped directly from the second step onto the floor. Id. at ¶ 19.

  At approximately 2:50 p.m., Plaintiff ascended to the fourth or fifth step of his ladder to take a measurement. Id. at ¶ 20. While Plaintiff was standing on the fourth or fifth step, a tape measure that he had clipped to the front of his pants pocket fell to the ground. Id. at 21. Mistakenly believing that he was still on the first or second step, Plaintiff attempted to step directly off of the ladder onto the ground. Id. at ¶ 22. As a result, Plaintiff toppled off of the ladder, struck the ground, and injured his chin, left elbow, and right wrist. Id. at ¶ 24.

  B. Procedural History

  Plaintiff commenced this action on May 16, 2001, by filing a Summons and Complaint in New York State Supreme Court, County of Erie. On June 26, 2001, DuPont removed the action to the United States District Court for the Western District of New York by filing a Notice of Removal.

  On March 22, 2002, DuPont filed a Third Party Complaint, seeking indemnification and contribution from O'Connell, Plaintiff's employer. Subsequently, DuPont and O'Connell reached a settlement agreement and this Court filed an order dismissing the Third Party Complaint on March 25, 2004. As such, the only claims remaining in this case are those asserted by Plaintiff against DuPont.

  On March 14, 2003, DuPont filed a Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff filed a Cross-Motion for Partial Summary Judgment on April 11, 2003. This Court heard oral argument on June 4, 2003, and reserved decision at that time.

  III. DISCUSSION

  A. Summary Judgment Standard

  Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment is warranted where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). A "genuine issue" exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir. 2003). A fact is "material" if it "might affect the outcome of the suit under governing law." Anderson, 477 U.S. at 248. In a case where the non-moving party bears the ultimate burden of proof at trial, the movant may satisfy its burden by pointing to the absence of evidence supporting an essential element of the non-moving party's claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

  When deciding a motion for summary judgment, a court must view the evidence and the inferences drawn from the evidence "in the light most favorable to the party opposing the motion." Addickes v. S.H. Kress and Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970). "Only when reasonable minds could not differ as to the import of evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). The function of the court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.

  Summary judgment is not appropriate if "there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party." Ford, 316 F.3d at 354. However, the party against whom summary judgment is sought "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002).

  B. Defendant DuPont's Motion for Summary Judgment

  Plaintiff asserts the following four claims against DuPont. First, Plaintiff alleges that DuPont violated New York Labor Law § 240(1) by failing to provide him with proper protection. Second, Plaintiff contends that DuPont did not provide him with a reasonably safe workplace, as required under Labor Law § 200. Third, Plaintiff argues that DuPont failed to comply with the State Industrial Code, in violation of Labor Law § 241(6). Fourth and finally, Plaintiff alleges that DuPont violated certain rules and regulations of the Occupational Health and Safety Act ("OSHA").

  DuPont argues that it is entitled to summary judgment with respect to all four claims. This Court will examine each claim in turn. 1. Labor Law § 240(1)

  Section 240(1) of New York's Labor Law provides, in pertinent part, that:

All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.
N.Y. LAB. LAW § 240(1).

  To prevail on a claim under this section, a plaintiff must prove two essential elements: (a) that the statute was violated and (b) that the violation was a proximate cause of his or her injuries. Blake v. Neighborhood Housing Services of New York City, Inc., 771 N.Y.S.2d 484, 488 (N.Y. 2003).

  a. Statutory Violation

  The mere fact that a plaintiff fell while using a ladder does not establish a violation of § 240(1). Blake, 771 N.Y.S.2d at 489 (holding that "an accident alone does not establish a Labor Law § 240(1) violation"). Rather, liability is "contingent upon the existence of a hazard contemplated in section 240(1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein." Narducci v. Manhasset Bay Assoc., 750 N.E.2d 1085, 1089 (N.Y. 2001).

  In the present case, this Court finds that DuPont is entitled to summary judgment because Plaintiff has not offered any evidence tending to show that the ladder in question was defective. Indeed, Plaintiff testified that the ladder was in "fine" condition, undamaged, and free of foreign substances. (Deposition of Matthew D. Smith, at p. 131).*fn1 He also stated that the ladder was tied off at the time of the accident and that it did not slip or shift beneath him. Id. at 135. Critically, Plaintiff admitted that he did not actually fall off of the ladder, but rather made a "mistake" and stepped directly off of the fourth or fifth rung.*fn2 Id. at 77.

  Although he alleges that DuPont violated § 240(1) by failing to provide proper safety devices, Plaintiff did not offer any evidence, expert or otherwise, tending to show that the presence of such devices would have prevented his accident. Moreover, as noted above, Plaintiff failed to introduce any evidence tending to show that the ladder was defective. Instead, Plaintiff argues that his accident, ipso facto, creates a genuine issue of material fact with respect to the condition of the ladder and the absence of proper safety devices. This argument is not viable under New York law. See Blake, 771 N.Y.S.2d at 489; Narducci, 750 N.E.2d at 1089; see also Katisfarakis v. Cent. Schl. Dist. No. 1 of N. Shore Schl. Dist., 609 N.Y.S.2d 833, 833 (N.Y. App. Div. 1994) (holding that defendant was entitled to summary judgment because "no evidence was presented tending to demonstrate that the ladder in question was not adequate under the circumstances to provide the injured plaintiff with `proper protection' within the meaning of Labor Law § 240(1)").

  b. Proximate Cause

  In the alternative, this Court finds that DuPont is entitled to summary judgment because there is no genuine issue but that Plaintiff's negligence was the sole proximate cause of his injuries. The Court of Appeals of New York recently held that "there can be no liability under section 240(1) when there is no violation and the worker's actions (here, his negligence) are the `sole proximate cause' of the accident." Blake, 771 N.Y.S.2d at 490. The court explained that "[e]xtending the statute to impose liability in such a case would be inconsistent with statutory goals since the accident was not caused by the absence of (or defect in) any safety device, or in the way the safety device was placed." Id.

  It is undisputed that Plaintiff's accident was caused, at least in part, by his decision to step off of the ladder directly onto the ground. Thus, to survive the instant summary judgment motion, Plaintiff was required to introduce some evidence tending to show that the accident was proximately caused by something other than his decision. In other words, Plaintiff needed to identify specific facts from which a reasonable trier of fact could conclude that the accident was proximately caused by DuPont's violation of § 240(1). Plaintiff utterly failed to make such a showing. There is no evidence in the record to suggest that this accident was caused by anything other than Plaintiff's decision to step off of the ladder, a decision which Plaintiff himself admits was a "mistake." As such, this Court finds that DuPont is clearly entitled to summary judgment with respect to Plaintiff's § 240(1) claim. See Stark v. Eastman Kodak, 682 N.Y.S.2d 749, 749 (N.Y. App. Div. 1998).*fn3

  2. Labor Law § 200

  Section 200 of New York's Labor Law "requires owners of construction sites `to provide reasonable and adequate protection . . . to the persons employed therein or lawfully frequenting such places.'" O'Hara v. Weeks Marine, Inc., 294 F.3d 55, 68 (2d Cir. 2002) (quoting N.Y. LAB. LAW § 200(1)). An owner is liable under § 200 "only if they (1) exercise supervisory control over the activity that causes the injury . . . and (2) have either actual or constructive notice of the hazard posed by that activity." O'Hara, 294 F.3d at 68 (internal citations omitted). In addition, to establish liability the plaintiff must also show that the owner's statutory violation was a proximate cause of the accident. Misirlakis v. East Coast Entertainment Properties, Inc., 746 N.Y.S.2d 307, 312-13 (N.Y. App. Div. 2002).

  In the present case, this Court finds that DuPont is entitled to summary judgment with respect to Plaintiff's § 200 claim. As discussed supra in Section III.B.1, there is no genuine issue but that Plaintiff's own negligence was the sole proximate cause of the accident. Even assuming arguendo that DuPont exercised some degree of supervisory control over Plaintiff's activities, Plaintiff failed to submit evidence tending to show that any action or inaction on the part of DuPont's employees proximately caused his injuries.

  In the alternative, DuPont is entitled to summary judgment because no reasonable trier of fact could conclude that it supervised or controlled Plaintiff's work within the meaning of Labor Law § 200. First, under the terms of its contract with O'Connell, DuPont had no authority to supervise or control the work of O'Connell's employees. Second, there is no evidence that DuPont ever attempted to specifically direct or control the method or manner in which Plaintiff performed his work. Indeed, Plaintiff testified that no one from DuPont ever told him what jobs to perform or how to perform them. (Smith Depo, at 36, 47). In sum, this Court finds that there is no genuine issue regarding the fact that DuPont lacked the authority to control the activity that produced the injury. As such, DuPont cannot be held liable under § 200 for failing to provide a safe workplace. See Poulin v. E.I. DuPont DeNemours & Co., 883 F. Supp. 894, 898-901 (W.D.N.Y. 1994) (granting summary judgment with respect to § 200 claim because plaintiff failed to produce evidence tending to show that defendant had the authority to control the activity producing the injury).

  3. Labor Law § 241(6)

  Under § 241(6) of the Labor Law, owners and contractors are required to "`provide reasonable and adequate protection and safety' for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor." Ross v. Curtis-Palmer Hydro-Electric Co., 618 N.E.2d 82, 86 (N.Y. 1993). Liability under § 241(6) "is imposed without the necessity of proving a defendant's notice of a defective condition or control over the work site." Shannon v. Lake Grove Centers, Inc., 118 F. Supp.2d 343, 348 (E.D.N.Y. 2000) (citing Zimmer v. Chemung County Performing Arts, Inc., 482 N.E.2d 898 (N.Y. 1985)).

  However, it is well-settled that to state a claim under this section, "a plaintiff must allege the violation of a specific rule or regulation promulgated by the Commissioner of the Department of Labor." Shannon, 118 F. Supp.2d at 349 (citing Ross, 618 N.E.2d at 86). In addition, the Court of Appeals has held that the rule or regulation alleged to have been breached must "be a `specific, positive command' rather than a `reiteration of common-law standards' which would merely incorporate into the State Industrial Code a general duty of care." Rizzuto v. L.A. Wenger Contracting Co., 693 N.E.2d 1068, 1071 (N.Y. 1998) (internal citations omitted). The court has carefully distinguished between "provisions `mandating compliance with concrete specifications and those that establish general safety standards.'" Id. (quoting Ross, 618 N.E.2d at 86).

  In the present case, Plaintiff's § 241(6) claim is based upon the allegation that DuPont violated 12 N.Y.C.R.R. § 23-1.5. However, it is well-settled that "section 23-1.5 sets forth only a general safety standard, which is insufficient to support a Labor Law § 241(6) claim." Hasty v. Solvay Mill Ltd. Partnership, 760 N.Y.S.2d 795, 796 (N.Y. App. Div. 2003); see also Danchick v. Contegra Servs., 750 N.Y.S.2d 384, 385 (N.Y. App. Div. 2002); Prevete v. Costco Wholesale Corp. of Brooklyn, No. 98-CV-2330, 2002 WL 31697098, at *3 (E.D.N.Y. Dec. 3, 2002). Accordingly, this Court finds that Plaintiff's Labor Law § 241(6) claim must be dismissed due to his failure to establish (or even allege) a violation of a concrete specification of the State Industrial Code.

  In the alternative, this Court finds that DuPont would be entitled to summary judgment even if Plaintiff had established an actionable violation of the Industrial Code. To prevail on a Labor Law § 241(6) claim, a plaintiff must also prove that the defendant's violation of the Industrial Code was a proximate cause of his or her injuries. See Alexandre v. City of New York, 750 N.Y.S.2d 651, 652-53 (N.Y. App. Div. 2002); cf. also Rizzuto, 670 N.Y.S.2d at 819. In the instant case, as discussed above, Plaintiff has failed to produce a single piece of evidence tending to show that his injuries were proximately caused by anything other than his own negligence.

  4. OSHA

  Congress enacted OSHA "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions." Chao v. Russell P. LeFrois Builder, Inc., 291 F.3d 219, 221 (2d Cir. 2002) (quoting 29 U.S.C. § 651(b)). Two administrative actors are responsible for implementing OSHA, the Secretary of Labor and the Occupational Health and Safety Review Commission. Chao, 291 F.3d at 221.

  In his fourth and final cause of action, Plaintiff alleges that DuPont violated the workplace safety requirements and regulations of OSHA. However, as this Court has previously recognized, "[u]nder OSHA, employees do not have a private right of action." Bailey v. Bethlehem Steel Corp., No. 90-CV-1064, 90-CV-1065, 1994 WL 586944, at *3 (W.D.N.Y. Oct. 4, 1994) (quoting Donovan v. Occupational Safety & Health Review Comm'n, 713 F.2d 918, 926-30 (2d Cir. 1983)). As such, Plaintiff's attempt to pursue an OSHA claim in this private action fails as a matter of law.

  IV. CONCLUSION

  For the foregoing reasons, this Court finds that DuPont is entitled to summary judgment with respect to all four of Plaintiff's causes of action. Accordingly, DuPont's Motion for Summary Judgment is granted and Plaintiff's Cross-Motion for Partial Summary Judgment is denied.

  V.ORDERS

  IT HEREBY IS ORDERED that Defendant DuPont's Motion for Summary Judgment (Docket No. 21) is GRANTED.

  FURTHER, that Plaintiff's Cross-Motion for Partial Summary Judgment (Docket No. 34) is DENIED. FURTHER, that the Clerk of the Court shall take the steps necessary to close this case.

  SO ORDERED.


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