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Ryan P. St. Louis v. Town of North Elba

March 31, 2011

RYAN P. ST. LOUIS, RESPONDENT,
v.
TOWN OF NORTH ELBA, ET AL., APPELLANTS.



The opinion of the court was delivered by: Lippman, Chief Judge:

This opinion is uncorrected and subject to revision before publication in the New York Reports.

Plaintiff Ryan St. Louis was injured while employed as a maintenance worker at the McKenzie-Intervale Olympic Jumping Complex in Lake Placid. At the time of his injury, St. Louis was assisting a work crew that was constructing a drainage pipeline by welding together and laying twenty-foot sections of snow-making pipe. The crew utilized a hydraulic-operated clamshell bucket attached to the bucket arm of a front-end loader to lift sections of the pipe approximately four feet above the ground and then hold the pipe in place in the jaws of the clamshell. Suspending one end of the pipe section in the air during the welding enabled the crew to reach the underside of the jointed sections.

After a crew member finished welding two pipe sections, St. Louis began hitting the welded seam with a hammer to remove excess metal, when suddenly the jaws of the clamshell bucket opened and released the pipe. The pipe pinned St. Louis to the ground, causing serious injury to his legs and feet. Although the members of the work crew later testified that they ordinarily used chains to secure loads in the clamshell bucket, at the time of the injury, there was no chain, rope or any other safety device to prevent the pipe from falling in the event of machine malfunction.

St. Louis commenced this action for damages, alleging, among other things, that defendant Town of North Elba, the owner of the Olympic Complex, had violated Labor Law § 241 (6), which "requires owners and contractors 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-Elec. Co., 81 NY2d 494, 501-502 [1993] [internal quotation marks omitted]). Since § 241 (6) imposes a non-delegable duty on property owners, plaintiff need not show that defendants exercised supervision or control over the worksite in order to establish a right of recovery under § 241 (6) (see Allen v Cloutier Constr. Corp, 44 NY2d 290, 300 [1978]). Nonetheless, comparative negligence remains a cognizable affirmative defense to a § 241 (6) cause of action (see Long v Forest-Fehlhaber, 55 NY2d 154, 160-161 [1982]).

In order to state a claim under § 241 (6), a plaintiff must allege that the property owners violated a regulation that sets forth a specific standard of conduct and not simply a recitation of common-law safety principles (see e.g. Ross, 81 NY2d at 501-502). Here, plaintiff rests his § 241 (6) claim on a violation of 12 NYCRR § 23-9.4 (e).

Section 23-9.4 falls within Subpart 23-9 of the Code, which is entitled "Power Operated Equipment." Section 23-9.1 ("Application of this Subpart") specifies that "[t]he provisions of [subpart 23-9] shall apply to the power-operated heavy equipment or machinery used in construction, demolition and excavation operations." Following this statement of applicability are nine sections covering specific kinds of power-operated heavy equipment or machinery, which do not mention "loaders" or "front-end loaders." Section 23-9.4 itself provides:

"Where power shovels and backhoes are used for material handling, such equipment and the use thereof shall be in accordance with the following provisions: [. . .]

(e) Attachment of load.

(1) Any load handled by such equipment shall be suspended from the bucket or bucket arm by means of wire rope having a safety factor of four.

(2) Such wire rope shall be connected by means of either a closed shackle or a safety hook capable of holding at least four times the intended load."

In its motion papers, defendants challenged the use of § 23-9.4 as a predicate for a § 241 (6) claim, arguing, among other things, that § 23-9.4 only mentions "power shovels and backhoes" and therefore cannot be extended to include "front-end loaders."

Supreme Court denied defendant's motion for summary judgment, concluding that the provisions of § 23-9.4 (e) cover front-end loaders when used in the manner and circumstances presented. The court relied on Copp v City of Elmira (31 AD3d 899 [3d Dept 2006]), which held that § 23-9.4 applies to a "payloader" used to elevate construction material:

"The regulation clearly addresses situations in which construction equipment is used to lift materials and sets forth pertinent safety standards. The term power shovel is not separately defined and where, as here, construction equipment is used to attempt to accomplish the same task as a power shovel, it would be inconsistent with the purpose of the regulation and cause an objectionable result to find the safety precautions regarding lifting materials inapplicable (see Matter of ATM ONE v Landaverde, 2 NY3d 472, 476-477)" (Copp, 31 AD3d at 900) (emphasis added).

The Appellate Division affirmed, rejecting defendant's argument that Section 23-9.4 cannot apply to a front-end loader. The court found "the manner in which the equipment is used rather than its name or label" to be the touchstone in assessing the applicability of a particular Code section (see 70 AD3d 1250, 1251 [2010]) (citing Copp, 31 AD3d at 900; Borowicz v International ...


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