The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
In accordance with 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct all further proceedings in this case, including entry of final judgment. Dkt. #33.
Currently before the Court is defendant's motion for summary judgment dismissing plaintiff's claims pursuant to New York Labor Law § § 200 and 241(6). Dkt. #155. For the following reasons, defendant's motion is granted in part and denied in part.
Plaintiff's amended complaint alleges that she was seriously injured following a slip, trip and fall on a makeshift walkway during the course of her employment with Empire Demolition and Development Company, Inc. ("Empire Demolition"), a subcontractor to defendant Cleveland Wrecking Company ("Cleveland Wrecking"), at approximately 9:00 a.m. on October 11, 1999. Dkt. #87. Plaintiff asserts that Cleveland Wrecking is liable to plaintiff pursuant to New York Labor Law § 200, which codifies common law negligence, and New York Labor Law § 241(6), by virtue of the violation of certain Industrial Code Rules. Dkt. #87.
Plaintiff testified at her deposition that she drove co-workers Joe Seneca and Carlos Robinson to ECMC in Empire Demolition's pick up truck on the morning of October 11, 1999. Dkt. #157-2, pp. 5, 8. Salvatore Capizzi, Empire Development's President, instructed them to stand by as he checked on the availability of the man lift or cherrypicker with Cleveland Wrecking's Regional Manager, Sam DeFranks. Dkt. #157-2, pp.24-25, 37-38. Plaintiff overheard their conversation, but did not speak to or receive instructions from Mr. DeFranks. Dkt. #157-2, pp14-16, 24-25.
Mr. Capizzi instructed plaintiff and Mr. Robinson to make a wooden path for the lift to ride on top of so that it wouldn't sink as it crossed the grass to the building. Dkt. #157-2, p.4, 8, 17-18, 26-27. Mr. Capizzi told plaintiff and Carlos where he wanted the boards to start so that they would "be in the right position as to the best place for the machine to enter onto the grass." Dkt. #157-2, pp.39-40. Plaintiff clarified that At the beginning he was watching us to make sure that we were putting them on the spot on the circle that he wanted for us to put them at so -- where the machine was going to be most level to the building that we -- that the machine had to be brought to.
Dkt. #157-2, p.41. Plaintiff also testified that Mr. Capizzi specifically instructed plaintiff and Mr. Robinson to walk across the boards that they had already laid on the ground "because he wanted them stomped down, pressed down, so that the machine didn't kick them out." Dkt. #157-2, pp.43, 53. Plaintiff repeated that they walked on the boards "because that pressed them down into the soil." Dkt. #157-2, p.31. Mr. Capizzi was standing in the circle near the pick up truck, talking on the telephone, as plaintiff and Mr. Robinson began to lay the boards. Dkt. #157-2, pp.26, 40.
Plaintiff testified that some of the boards had been moved to ECMC on October 9, 1999, and the rest were delivered to ECMC in the pick up truck on October 11, 1999. Dkt. #157-2, p.19. Plaintiff described the boards as "pressure-treated . . . two-by-tens, two-by-twelves" previously used on the deck of the roof at the Buffalo Athletic Center project which had been stored on the floor in Empire Demolition's warehouse. Dkt. #157-2, p.18, 20. Multiple nails protruded approximately two-to-three inches through the boards. Dkt. #157-2, p.21. Plaintiff laid the boards with the nails facing into the ground. Dkt. #157-2, p.22. She recalled that the grass and boards were wet and "kind of slimy." Dkt. #157-2, p.17.
Plaintiff stated that she and Mr. Robinson had laid approximately 15-20 boards before she was injured. Dkt. #157-2, p.25. They were moving three boards together -- Carlos was in front of the boards facing forward and plaintiff was in back-- when her "right foot slipped" forward on one of the boards they had just laid on the ground and she "completely torqued right around and my back blew out." Dkt. #157-2, pp.27-28, 30, 34-35. Plaintiff testified that the boards had nails in them and they were slimy from being in the shop and stuff and then being brought outside, and the natural elevation of the soil, the fact that it was topsoil, the fact that there were nails in the wood all kind of played into, I think, maybe creating some unevenness, and I slipped on the board. And when I slipped, I just twisted to hard that I -- the boards were in my left hand and my right hand was guiding them, they were all three in my right hand. I had to try and save them from ripping my face apart and ripping my hand or my chest apart, not to mention from landing on my feet.
Dkt. #157-3, pp.27-28. Plaintiff testified that Mr. Capizzi was on the telephone, with his back to her, when she slipped and injured her back. Dkt. #157-2, pp.23, 40.
Carlos Robinson testified that Mr. Capizzi instructed him to construct a wooden path for the equipment to cross the ground from the roadway to the building by lying the boards side by side. Dkt. #157-3, pp.23, 30, 33. Mr. Robinson denied speaking with anyone from Cleveland Wrecking with respect to this project. Dkt. #157-3, p.28. He testified that Mr. Capizzi was "the only one" who instructed him on the job. Dkt. #157-3, p.28.
Mr. Robinson explained that the boards were old, dirty, wet and unstable; some of them were warped and "had oil and stuff on them," and some of them contained nails. Dkt. #163-3, pp.3-5. They had come from Empire Demolition's warehouse, which Mr. Robinson described as "really dirty." Dkt. #163-3, p.5. Because some of the boards were warped and the ground was uneven in places, Mr. Robinson stated that the boards were not even and bounced in places. Dkt. #163-3, p.6. The boards were not secured to the ground in any way. Dkt. #163-3, p.6.
Mr. Robinson testified that plaintiff was injured when she slipped and twisted her back while they were carrying one or two pieces of wood across the boards that they had already laid on the ground. Dkt. #163-3, pp.3-4, 7. He denied that plaintiff was standing on the grass at the time of her injury. Dkt. #163-3, p.3. Mr. Robinson testified that he had slipped a couple of times prior to plaintiff's injury. Dkt. #157-3, p.34; Dkt. #163-3, p.4.
Joe Seneca testified that he received his instructions from Salvatore Capizzi on October 11, 1999 and denied receiving instructions from anyone else. Dkt. #157-3, pp.37-38.
Salvatore Capizzi, Empire Demolition's President, testified that he conducted a safety meeting with his employees on the morning of October 11, 1999. Dkt. #157-2, pp.57, 67. It was Mr. Capizzi's decision to build a path for the machinery to travel over the grass to the demolition site. Dkt. #157-2, pp.68, 72-73; Dkt. #163-4, pp.14, 16. He agreed that no one from Cleveland Wrecking instructed him to build the path. Dkt. #157-2, p.68. However, Mr. Capizzi testified that he informed Mike Fago of his plans and Mr. Fago agreed that it was a good idea. Dkt. #157-2, p.72; Dkt. #163-4, p.15. Specifically, Mr. Capizzi testified that, "I told him about it, he okayed it, we did it." Dkt. #157-2, p.72. When asked if Mr. Fago told Mr. Capizzi "to do it side by side and then end on end," Mr. Capizzi testified that "[w]e looked it over, both of us looked it over, and decided it wasn't going to work." Dkt. #157-2, pp.72-73.
Mr. Capizzi instructed plaintiff and Mr. Robinson to "start unloading the planks and put them side by side or in front of each other." Dkt. #157-2, p.69. Mr. Capizzi "showed them the way [he] wanted it" and "told them to make sure they were level." Dkt. #157-2, pp.69-70. The boards were not secured to each other. Dkt. #163-4, p.8. He agreed that the grass was damp. Dkt. #163-4, p.14. Subsequently, Mr. Capizzi instructed plaintiff and Mr. Robinson to put the boards end to end. Dkt. #157-2, p.72.
Mr. Capizzi denied being present while plaintiff and Mr. Robinson completed the first twenty feet of the path and testified that Mike Fago was responsible for Empire Demolition's employees in his absence. Dkt. #163-4, pp.10-12. Mr. Capizzi testified that, as site superintendent, Mr. Fago had authority to instruct Empire Demolition's employees, but conceded that he had no knowledge as to whether Mr. Fago provided any instruction to plaintiff. Dkt. #157-2, pp.67, 73.
Sam DeFranks, Cleveland Wrecking's Regional Manager, denied any direct contact with any of his subcontractor's employees. Dkt. #157-2, p.76. Mr. DeFranks specifically denied speaking with anybody from Empire Demolition at the ECMC job site. Dkt. #157-2, p.76. Mr. DeFranks also denied that he ever observed the path on which plaintiff was injured. Dkt. #157-2, p.78. However, Mr. DeFranks did recall speaking with Mike Fago before the project commenced about the need to convey to Empire Demolition that they must either prevent or immediately repair any damage to the landscape caused by machinery. Dkt. #157-2, pp.78-80.
Mike Fago, Cleveland Wrecking's site superintendent at the ECMC project,testified that he usually met with a representative of each subcontractor on a daily basis, but did not direct any of his subcontractor's employees. Dkt. #157-3, pp.3-5, 8. However, Mr. Fago agreed that he had the authority to stop unsafe work practices and to direct that unsafe conditions be corrected. Dkt. #163-6, pp.1-6. Mr. Fago informed Mr. Capizzi that he would need to re-landscape if he damaged the lawn, but did not specifically discuss with Mr. Capizzi how he planned to use the planks to protect the landscape. Dkt. #157-3, pp.6, 9.
Plaintiff's proposed expert witness, Ernest J. Gailor, testified that boards commonly referred to as "two-by-tens" or "two-by-twelves," are one and ...