The opinion of the court was delivered by: John T. Curtin United States District Judge
This action was originally brought in New York State Supreme Court, Erie County, on July 11, 2007, and was removed to this court in August 2007 on the basis of the diversity of citizenship of the parties, in accordance with 28 U.S.C. §§ 1332 and 1441. Plaintiff Michael S. Steinman seeks damages under the common law of negligence and New York State Labor Law §§ 200, 240(1), and 241(6) for personal injuries allegedly sustained on July 12, 2004 while performing demolition work on behalf of his employer, Merz Metal & Machine Corp. ("Merz Metal"), at a salt mining facility owned and operated by defendant Morton International, Inc. ("Morton").*fn1 After answering the complaint, Morton brought a third-party action for indemnification against Merz Metal (Item 7).
Following discovery, both Morton and Merz Metal moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure dismissing plaintiff's complaint as a matter of law or, in the alternative, for a ruling on Morton's indemnification claim against Merz Metal (see Items 26 & 27). Plaintiff filed a cross-motion for partial summary judgment on Morton's liability under New York Labor Law § 240(1) (Item 33). What follows is the court's ruling on these motions.
In the spring of 2004, Morton hired Merz Metal to fabricate and install a new carbon steel "coal hopper" (or "bunker") to replace the old concrete coal hopper located on the mezzanine level of the power house at Morton's facility in Silver Springs, New York. The coal hopper was utilized to distribute coal through discharge grates to a conveyor belt situated on the mezzanine floor directly below the hopper, which then conveyed the coal to the power house boiler. The mezzanine itself was a steel-construction platform utilized as a walkway for access to the conveyor belt apparatus, rising approximately ten feet above the power house floor.
The coal hopper project required Merz Metal to demolish and remove the old concrete hopper, which was in deteriorating condition after many years of continuous use, prior to installing the new steel hopper. During the demolition phase, the length of the conveyor apparatus was covered by a plywood platform built by Merz Metal at a height of approximately three feet above the mezzanine floor to protect the conveyor belt from being damaged by demolition debris.
The old concrete hopper itself was approximately one hundred feet long, twelve feet across, and six feet deep, shaped like a "half pipe." It was suspended at a height of approximately four feet above the mezzanine floor (and two feet above the conveyor belt) by steel straps attached to structural beams on the ceiling. At one end of the hopper was a brick wall built from the floor of the mezzanine to the top of the hopper. The bricks were mortared to the outside and inside walls of the hopper to function as both a "cradle" and, on the inside of the hopper, an "end cap."
At the time of the accident in July 2004, plaintiff was a union sheet metal worker employed by Merz Metal and assigned to the coal hopper project at the Morton facility. By July 12, plaintiff and other Merz Metal employees had been working on the demolition of the old hopper for about two weeks, and had reached the brick "end cap" structure.
Plaintiff and a co-worker, Scott Snuszki, had begun demolishing the "end cap" by using hand-held forty-pound pneumatic jack hammers, working from the plywood platform on top of the conveyor belt apparatus, when a portion of the brick structure collapsed and landed on plaintiff, injuring his leg (see generally Item 33, Plaintiff's Affidavit, ¶¶ 5-7, and Exs. I, J & K attached thereto).
In his complaint in this case, plaintiff alleges the following four causes of action against Morton:
1. Negligence, by way of breach of the common-law duty on the part of the premises owner to provide a reasonably safe workplace (Item 1, Complaint, ¶¶ 9-12).
2. Failure to protect against injury by objects falling from an elevated height in violation the common-law duty to provide a safe workplace, as codified in New York Labor Law § 200 (id. at §§ 13-15).
3. Failure to provide adequate safety devices to protect against objects falling from an elevated height, in violation of New York Labor Law § 240(1) (id. at §§ 16-19).
4. Failure to comply with statutory and regulatory requirements for providing adequate protection and safety to demolition workers, in violation of New York Labor Law § 241(6) and Part 23 of the New York Industrial Code (id. at ¶¶ 20-22).
Morton moves for summary judgment on the following grounds:
1. Plaintiff's first and second causes of action under the common law of negligence and Labor Law § 200 should be dismissed because Morton did not supervise or control plaintiff's work.
2. Plaintiff's third cause of action should be dismissed because the injury caused by collapse of a wall during demolition is not the type of elevation-related accident contemplated by Labor Law § 240(1).
3. Plaintiff's fourth cause of action should be dismissed because the provisions of the industrial code upon which plaintiff relies are insufficient to support a claim under Labor Law § 241(6).
4. If any cause of action survives summary judgment, Morton is entitled to a defense and indemnification from Merz Metal pursuant to the written agreement between the parties governing the demolition work. (See Morton's Briefs, Items 28, 50, 52, 59).
Merz Metal has joined Morton's motion to the extent it seeks dismissal of plaintiff's claims under Labor Law §§ 240(1) and 241(6). Merz Metal also moves for summary judgment in its favor on Morton's contractual indemnification claim on the ground that the indemnification clause in the applicable contract between Morton and Merz Metals is void and unenforceable as against public policy under the laws of both New York and Illinois (see Merz Metal's Briefs, Items 26, 45, 48, 54).
Plaintiff has filed a cross-motion for summary judgment seeking a ruling that Morton is liable as a matter of law for failing to provide the protections contemplated by Labor Law § 240(1) (see Plaintiff's briefs, Items 33, 41, 56).
Each of these grounds for relief is taken up in turn below.
Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A fact is considered to be "material" only if it "might affect the outcome of the suit under the governing law . . . ," and a dispute regarding a material fact is considered to be genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; see also Bryant v Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849 (1991).
In making its determination on a motion for summary judgment, the court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162,167 (2d Cir. 1991). The court's role is not to resolve issues of fact, but rather to determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52. When "little or no evidence may be found in support of the nonmoving party's case . . . [and] no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Resid. Servs., L.P., 22 F.3d 1219, 1223-24 (2d Cir. 1994) (citations omitted).
II. New York Labor Law § 240(1)
The issue central to all three pending motions is whether Morton can be held liable under Labor Law § 240(1) for the injuries sustained by plaintiff when the brick structure he was in the process of demolishing collapsed. Commonly referred to as the "scaffold law," section 240(1) provides:
Scaffolding and other devices for use of employees
1. 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.
The primary legislative intent of the scaffold law was "to achieve the purpose of protecting workers by placing 'ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor,' instead of on workers, who are scarcely in a position to protect themselves from accident." Zimmer v. Chemung County Performing Arts, Inc., 65 N.Y.2d 513, 520 (1985) (quoting 1969 NY Legis Ann, at 407; other quotation marks and citations omitted).
The New York courts have interpreted this provision to impose "absolute liability for a breach which has proximately caused an injury. Negligence, if any, of the injured worker is of no consequence." Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513 (1991). Likewise, it is well settled "that the duty imposed by Labor Law § 240(1) is non-delegable and that an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work." Ross v. Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d 494, 500 (1993).
However, "not every hazard or danger encountered in a construction zone falls within the scope of Labor Law § 240(1)" so as to render the owner or contractor absolutely liable for an injured worker's damages. Misseritti v. Mark IV Const. Co., Inc., 86 N.Y.2d 487, 490 (1995). The New York Court of Appeals has made it clear that the protection afforded by the statute is limited to liability for injuries arising from "special hazards" related to the effects of gravity, i.e., where the enumerated protective devices ("scaffolding," "hoists," "stays," "braces," etc.) are required because "the work site either is itself elevated or is positioned below the level ...