United States District Court, W.D. New York
March 30, 2004.
MATTHEW D. SMITH, Plaintiff,
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
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.
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
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.
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
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.
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.
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
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 §
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
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.
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.
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.
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.