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Morton v. State

June 8, 2010

ALAN MORTON ET AL., APPELLANTS,
v.
STATE OF NEW YORK, RESPONDENT.



The opinion of the court was delivered by: Read, J.

Claimant Alan Morton was injured on the morning of April 3, 1997 while working for his employer, New York Water Service Corporation (the water company), a private company that furnishes water to portions of Nassau County. On that date, he was a member of a four-person work crew, including a foreman, dispatched with a backhoe to fix a break reported in a company-owned water main installed in 1928 beneath Carman Mill Road, Massapequa, New York, a part of the State of New York's highway system (see Highway Law § 341 [29] [1]).

Upon arrival at the job site, the work crew notified affected customers and shut off water service, excavated test holes to pinpoint the leak's origin, and placed traffic cones to alert motorists to the presence of the backhoe, which occupied a portion of the northbound travel lane. Using the backhoe and shovels, the crew dug up blacktop in the roadbed and created a hole or trench, exposing the 12-inch water main buried several feet underground. When claimant climbed down into this trench to clean around the main and apply a repair clamp, a side wall caved in, burying his right leg and foot.

In June 1997, claimant, with his wife suing derivatively, brought this action against the State. He asserted common-law negligence and violations of Labor Law §§ 200, 240 and 241 (6), and sought $5.5 million in damages. In 2002, claimant moved for partial summary judgment as to liability on his Labor Law § 241 (6) and negligence claims. He premised liability in the former on violation of Industrial Code Rule 23 (12 NYCRR subpart 23-4), which requires banked or sloped sides (12 NYCRR 23-4.2 [a]) or "sheeting, shoring and bracing" (12 NYCRR 23-4.4 [a]) of excavations that are five feet or more deep. The State opposed the motion and cross-moved for summary judgment dismissing the complaint.

The State argued that it was not liable under Labor Law § 241 (6) because the water company failed to obtain a work permit from the New York State Department of Transportation (DOT), as mandated by Highway Law § 52, prior to repairing the water main, which was situated within the State highway right-ofway. Section 52 provides that "[e]xcept in connection with the construction, reconstruction, maintenance or improvement of a state highway, no person, firm, corporation, municipality, or state department or agency shall . . . lay or maintain [within the State highway right-of-way] underground wires or conduits or drainage, sewer or water pipes, except in accordance with the terms and conditions of a work permit issued by the commissioner of transportation" (see also Vehicle and Traffic Law § 1220-c ["[e]xcept in connection with the construction, reconstruction, maintenance, or improvement of a state highway, no person shall work on a state highway without a work permit issued by the state commissioner of transportation"]; 17 NYCRR 126.2 [a],[b] [a work permit must be secured "to temporarily obstruct or to install, construct, maintain or operate any facilities within the bounds of a State highway right-of-way," including "excavating . . . or work of a like nature under, or over or along the highway"]).

By decision and order dated October 21, 2002, the Court of Claims dismissed claimant's negligence claims because the State lacked actual or constructive notice of any dangerous condition and did not exercise supervision or control over the worksite. The court also denied claimant's motion and the State's cross motion for summary judgment on the Labor Law § 241 (6) claim. The judge concluded that Highway Law § 52 did not insulate the State from liability under Labor Law § 241 (6) because this provision "imposed a non-delegable duty upon 'owners' to provide reasonable and adequate protection and safety to persons employed in excavation work regardless of the absence of control, supervision or direction of the work." He did find, however, that material questions of fact existed as to soil composition and the excavation's depth, which implicated the applicability of the Industrial Code sections relied upon by claimant.

After the ensuing non-jury trial, the Court of Claims on April 9, 2003 found that the excavation was not protected by sloped or banked sides or by sheeting, shoring or bracing, and that it was more than five feet deep. The judge decided that claimant had therefore proven violations of sections of the Industrial Code specific enough to support Labor Law § 241 (6) liability; and that these violations proximately caused the accident, and thus contravened the State's non-delegable duty to claimant under Labor Law § 241 (6). The judge also found that the State had not proven claimant's comparative negligence by a preponderance of the credible evidence. Accordingly, on May 7, 2003, an interlocutory judgment determining the State to be negligent and 100% liable for claimant's injuries was entered in the Court of Claims. The State appealed from both the order denying its cross motion for summary judgment on the section 241 (6) claim, and the interlocutory judgment.

In December 2004, the Appellate Division dismissed the State's appeal from the interlocutory judgment as academic; reversed, on the law, the portion of the Court of Claims' order that denied the State's cross motion for summary judgment dismissing the section 241 (6) claim; granted the State summary judgment on and dismissed that claim; and vacated the interlocutory judgment (13 AD3d 498 [2d Dept 2004]). Citing Abbatiello v Lancaster Studio Assoc. (3 NY3d 46, 51 [2004]), the court reasoned that the "State is not liable . . . under Labor Law § 241 (6) because the claimant was not within the class of persons afforded protection under the statute. Since [the water company] failed to obtain a highway work permit in violation of state law . . . [the water company] and the claimant trespassed on the State's property in performing excavation and repairs on the state highway . . . Since the claimant was performing work without the State's permission or knowledge, he was not a person 'employed' at a work site within the meaning of the Labor Law, which defines such an individual as one 'permitted or suffered to work' (Labor Law § 2 [7])" (13 AD3d at 500 [citations omitted]).

We granted claimant permission to appeal,*fn1 and now affirm.

Labor Law § 241 (6) provides that "[a]ll contractors and owners and their agents . . ., when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements: . . .

"All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The [New York State Commissioner of Labor] may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work . . . shall comply therewith."

Thus, Labor Law § 241 (6) imposes a non-delegable duty*fn2 on owners and contractors to comply with the Commissioner of Labor's regulations (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 502 [1993]). And "to the extent that [a] plaintiff . . . assert[s] a viable claim under Labor Law § 241 (6), he need not show that defendants exercised supervision or control over his worksite in order to establish his right of recovery" (id.).

But we have consistently held that ownership of the premises where the accident occurred -- standing alone -- is not enough to impose liability under Labor Law § 241 (6) where the property owner did not contract for the work resulting in the plaintiff's injuries; that is, ownership is a necessary condition, but not a sufficient one. Rather, we have insisted on "some nexus between the owner and the worker, whether by a lease agreement or grant of an easement, or other property interest" (Abbatiello, 3 NY3d at 51; see also Scaparo v Village of Ilion, 13 NY3d 864, 866 [2009] ["In cases imposing liability on a property owner who did not contract for the work performed on the property, this Court has required 'some nexus between the owner and the worker, whether by a lease agreement or grant of an easement, or other property interest'"], quoting Abbatiello, 3 NY3d at 51).

We found no nexus in Abbatiello where the plaintiff, a cable television repair man, was injured at a building owned by the defendant while responding to the complaint of a tenant who was a cable television subscriber. The plaintiff's employer had sent the plaintiff to the defendant's building to respond to the complaint. We emphasized that the "injured plaintiff was on the owner's premises not by reason of any action of the owner but by reason of provisions of the Public Service Law," which precludes landlords from interfering with the installation of cable television facilities on their property (Abbatiello, 3 NY3d at 51). Moreover, the owner was "powerless to determine which cable company [was] entitled to operate, repair or maintain the cable facilities on its property, since [pursuant to Public Service Law § 219] such decision lies with the municipality -- the franchisor" (id. at 52). As we elaborated, "but for Public Service Law § 228, plaintiff would be a trespasser upon [the defendant's] property and [the defendant] would neither owe a duty to plaintiff nor incur liability. Any permission to work on the premises was granted upon compulsion and no relationship existed between [the defendant] and [the plaintiff's employer] or the plaintiff" (id.).

We contrasted Abbatiello with three earlier cases in which there was a nexus between the owner and the injured worker: Celestine v City of New York (86 AD2d 592, 593 [2d Dept 1982], affd 59 NY2d 938 [1983] [in action under Labor Law § 241 (6), owner granted an easement to entity contracting for work leading to plaintiff's accident]); Gordon v Eastern Ry. Supply (82 NY2d 555, 559 [1993] [in action under Labor Law § 240 (1),*fn3 owner leased property to contractor who performed work leading to plaintiff's accident]); and Coleman v ...


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