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Gerard Eberl and Jeanne Eberl v. Fmc Corporation

May 17, 2012

GERARD EBERL AND JEANNE EBERL, PLAINTIFFS,
v.
FMC CORPORATION, DEFENDANT, FMC CORPORATION, THIRD-PARTY PLAINTIFF,
v.
JOHN W. DANFORTH CO., INC., THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Judge

DECISION AND ORDER

I. INTRODUCTION

Plaintiffs commenced this action seeking damages for injuries sustained by Plaintiff Gerard Eberl ("Plaintiff"*fn1 while working at a chemical plant owned by Defendant/Third-Party Plaintiff FMC Corporation. FMC Corporation filed a third-party action against Plaintiff's employer, John W. Danforth Co., Inc., seeking contractual indemnification for any damages. Presently before this Court are the Motions for Summary Judgment of Defendant FMC Corporation,*fn2 seeking dismissal of Plaintiffs' complaint, and of Third-Party Defendant John W. Danforth Co., Inc.,*fn3 seeking dismissal of the third-party complaint. Plaintiffs have also moved for Partial Summary Judgment*fn4 seeking dismissal of the affirmative defenses of assumption of the risk. These motions are fully briefed and the Court finds oral argument unnecessary. For the reasons that follow, the summary judgment motion of FMC Corporation is granted in part, the summary judgment motion of John W. Danforth is denied, and Plaintiffs' motion for partial summary judgment is granted.

II. BACKGROUND

Plaintiff was working as a steamfitter for Third-Party Defendant John W. Danforth Co., Inc. ("Danforth"), in August 2006. Deposition of Plaintiff Gerard Eberl at 45-50 (Leary Aff Ex E, Quinn Aff Ex B, Beltz Decl Ex B). Danforth had been contracted by Defendant FMC Corporation ("FMC") to perform certain work associated with a steam generator project, including the removal of a deaerator from the old boiler room and the transfer of same to the new boiler room. Deposition of Frederick Koch at 32, 44 (Leary Aff Ex L, Quinn Aff Ex E, Beltz Decl Ex E); see Leary Aff Ex V. Plaintiff was assigned by his Danforth foreman, Frederick Koch, to disconnect a steam line running into this deaerator by unbolting a flange on the line, placing a blank flange and then cutting the pipe with an oxyacetylene torch. Plaintiff Dep at 30, 61; Deposition of Shawn Piskorz at 61-62, 89 (Leary Aff Ex M, Beltz Decl Ex C); Koch Dep at 21, 30; Deposition of Jason Vaughan at 173 (Leary Aff Ex F, Beltz Decl Ex D). FMC employees were responsible for 'locking out' the active steam line prior to this task being performed. Vaughan Dep at 28-29, 133, 170; Deposition of Michael Brigante at 35, 95 (Leary Aff Ex k, Quinn Aff Ex F, Beltz Decl Ex F).

In order to remove part of the steam line, Plaintiff and steamfitter apprentice Shawn Pixkorz utilized a scissor lift to reach the requisite pipe located approximately 17 to 18 feet off the ground. Plaintiff Dep at 60, 66-67; Vaughan Dep at 201, 214-215. They loosened the bolts on the flange after being informed by Koch and FMC project manager Jason Vaughan that the line was 'all set' and 'ready to go.' Plaintiff Dep at 66-67, 80; Piskorz Dep at 62-63. After the bolts were loosened, Plaintiff noticed water dripping, specifically hot condensate which forms as the steam in the line begins to cool, and he informed Vaughan and Koch of that fact. Plaintiff Dep at 69-71; Vaughan Dep at 173-174, Brigante Dep at

58. Vaughan and Koch had a brief conversation, following which Plaintiff was told that it was just "residual" liquid. Plaintiff Dep at 71-76; Piskorz Dep at 91, 120, 122. The residual water drip stopped a few minutes later, and Plaintiff continued to remove bolts. Plaintiff Dep at 76. Plaintiff cut a window in the pipe with the torch, and the inside appeared dry. Id. at 83-85. When Plaintiff started to cut the bottom of the pipe, however, water again dripped out. Plaintiff Dep 87; Piskorz Dep 106-107. Plaintiff and Piskorz came down off the scissor lift and informed the FMC and Danforth supervisors. Plaintiff Dep at 89-90. Vaughan then had an FMC employee recheck the valves. Plaintiff Dep at 89-91; Piskorz Dep at 120. That employee returned and informed Vaughan that the valves were tightened as much as possible without snapping the valve stems. Plaintiff Dep at 91-92. After another conversation between Vaughan and Koch, Koch told Plaintiff that they "should be all set. We got you drained and all set. Valve shut." Plaintiff Dep at 92.

Plaintiff and Piskorz took the lift back up and saw that the water had stopped dripping. Plaintiff Dep at 93. Plaintiff checked the window in the pipe again, confirmed that the pipe was dry, and continued to cut. Id. at 94. When Plaintiff made the final cut, however, the pipe shifted and "[w]ater started spraying everywhere." Plaintiff Dep at 99, 104; Piskorz Dep at 91, 155-156; Vaughan Dep at 206-207. Plaintiff handed off the cutting torch to Piskorz, climbed over the railing on the scissor lift, and jumped onto nearby piping, from which he then fell to the ground. Plaintiff Dep at 105-106, 109-110; Piskorz Dep at 157; Vaughan Dep at 207-208. As a result, Plaintiff suffered second and third degree burns as well as injuries to his shoulder, knee, and hip. Quinn Aff Ex I at 6.

Plaintiff commenced the present action in the Supreme Court for the State of New York, Erie County, asserting causes of action against FMC for negligence and violations of New York Labor Law §§ 200, 240, and 241, as well as a derivative claim on behalf of Plaintiff's wife for loss of consortium. Complaint, Docket No. 1, Ex. A. FMC removed the action to this Court, asserting diversity grounds. Docket No. 1. FMC requested and was granted leave to file a third-party complaint against Danforth, wherein FMC asserted that Danforth was contractually obligated to indemnify FMC for any damages in the event FMC is found liable to Plaintiffs. Docket No. 16.

III. DISCUSSION

Summary judgment is appropriate where the materials in the record, including depositions, documents, affidavits or declarations, and stipulations, show that there are no genuine issues regarding any material fact and that the movant is entitled to judgment as a matter of law. see FED.R.CIV.P. 56 (a), (c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A court's function on a summary judgment motion "is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists." Kaytor v. Electric Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A. Labor Law § 240

FMC and Danforth both argue that Plaintiffs cannot establish a violation of Labor Law § 240. FMC Mem of Law, Docket No. 48-13, at 2-3; Danforth Mem of Law, Docket No. 47-25, at 15-16. Paragraph one of this section requires that, as relevant, contractors and owners: 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. "Labor Law § 240(1) imposes a non-delegable duty and absolute liability upon owners or contractors for failing to provide safety devices necessary for protection to workers subject to the risks inherent in elevated work sites who sustain injuries proximately caused by that failure." Jock v. Fein, 80 N.Y.2d 965, 967-968 (N.Y. 1992); see Agriculture Ins. Co., Inc. v. Ace Hardware Corp., 214 F.Supp.2d 413, 417 (S.D.N.Y. 2002)(liability may be found even if the owner or contractor did not supervise or control the work). The "jurisprudence defining the category of injuries that warrant the special protection of Labor Law § 240(1) has evolved over the last two decades, centering around a core premise: that a defendant's failure to provide workers with adequate protection from reasonably preventable, gravity-related accidents will result in liability." Wilinski v. 334 East 92nd Hous. Dev. Fund Corp., 18 N.Y.3d 1, 7 (N.Y. 2011); see Runner v New York Stock Exch., Inc., 13 N.Y.3d 599, 604 (N.Y. 2009)(this section protects against injuries resulting from the operation of gravity upon the worker or upon objects falling on that worker).

Here, Plaintiff was working approximately 17 to 18 feet off the ground on a 20 inch by 8 foot scissor lift platform at the time of his accident. Plaintiff Dep at 66; Vaughan Dep at 214-215. There is no allegation that the scissor lift itself was defective or inadequate protection from the risk of falling. The scissor lift platform was surrounded with a railing, over which Plaintiff climbed in order to reach adjacent piping and then drop to the ground. Plaintiff Dep at 83, 109; Vaughan Dep at 207-208, 213-214; Piskorz Dep at 157. Plaintiff specifically testified that he "jumped." Plaintiff Dep. at 109-110; see George v. State of New York, 251 A.D.2d 541, 542 (NY App Div 2d Dept 1998), lv denied 92 N.Y.2d 815 (N.Y. 1998)(no Labor Law ยง 240 violation where injuries resulted from "jump rather than from any defective piece of equipment designed to prevent injuries from elevation related risks"). Thus, "[P]laintiff's injury-producing accident was not attributable to the risk arising from the elevation differentials at his work site that brought about the need for the safety device in the first place," but instead was the result of the separate hazard of hot steam condensate emanating from the cut pipe, prompting Plaintiff's decision to jump from the scissor lift platform. Fenty v City of New York, 71 A.D.3d 459, 460 (N.Y. App. Div. 1st Dept 2010)(no Labor Law 240 violation where hot steam from ruptured pipe led to ...


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