United States District Court, W.D. New York
MICHAEL S. STEINMAN, Plaintiff,
MORTON INTERNATIONAL, INC., f/k/a Morton Salt Company, f/k/a New Moon International, Inc., MORTON SALT COMPANY, a division of Morton International, Inc., NEW MORTON INTERNATIONAL, INC., and ROHM AND HAAS COMPANY, INC., Defendants. MORTON INTERNATIONAL, INC., Third-Party Plaintiff,
MERZ METAL & MACHINE CORP., Third-Party Defendant.
MICHAEL GREGORY COOPER, ESQ., Hamburg, New York, for Plaintiff.
PERSONIUS MELBER LLP (SCOTT R. HAPEMAN, of Counsel), Buffalo, New York, for Defendants Morton International, Inc., Morton Salt Company, New Morton International, Inc., and Rohm and Haas Company.
HURWITZ & FINE (MICHAEL F. PERLEY, ESQ., of Counsel), Buffalo, New York, for Third-Party Defendant Merz Metal & Machine Corp.
JOHN T. CURTIN, District Judge.
In this action (which was originally brought in New York State Supreme Court, Erie County, on July 11, 2007, and removed to this court in August 2007 on the basis of the diversity of citizenship of the parties), 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 he was performing demolition work on behalf of his employer, third-party defendant Merz Metal & Machine Corp. ("Merz Metal"), at a salt mining facility owned and operated by defendant/third-party plaintiff Morton International, Inc. and related corporate entities (collectively, "Morton"). Following discovery, the parties filed summary judgment motions pursuant to Rule 56(c) of the Federal Rules of Civil Procedure seeking, among other things, a ruling with respect to Morton's liability under New York Labor Law § 240(1), which imposes strict liability on contractors and building owners to provide adequate protection to workers from certain elevation-related hazards. In a decision and order entered November 19, 2010, this court granted Morton's motion dismissing the Labor Law § 240(1) claim from the case, relying on a "significant body" of New York decisional law to find that the accident at issue did not involve the type of hazard covered by the statute because the undisputed facts established that plaintiff was injured by an object that fell from the same level at which he was working. Steinman v. Morton Int'l, Inc., 756 F.Supp.2d 314, 320-22 (W.D.N.Y. 2010).
Upon completion of court-ordered mediation without settlement, plaintiff moved pursuant to 28 U.S.C. § 1292(b) to certify the court's dismissal of the Labor Law § 240(1) claim for interlocutory appeal on the basis that it involved a controlling question of law as to which there is a substantial ground for difference of opinion (Item 70). The U.S. Court of Appeals for the Second Circuit granted leave to appeal, and on May 10, 2013, issued a summary order vacating this court's dismissal of the Labor Law 240(1) claim and remanding the matter for further proceedings. Steinman v. Morton Int'l, Ic., 519 F.App'x 40 (2d Cir. 2013). The circuit court found that the "same-level" rule derived from the holdings in the cases relied upon by this court was inconsistent with the rule pronounced in the New York Court of Appeals' more recent decisions, which focuses on "the single decisive question... whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential." Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d 1, 10 (2011). The Second Circuit also found that triable issues of fact exist in this case both as to whether there was a physically significant elevation differential giving rise to risk of injury, and whether plaintiff's injuries where proximately caused by the absence of proper protection, precluding entry of summary judgment in favor of either party on the Labor Law 240(1) claim. The court therefore remanded the matter to this court, with specific directions to "consider whether a jury could reasonably find that adequate protective devices contemplated by the statute could have been implemented such that the accident could have been prevented." Steinman, 519 F.App'x at 52.
On remand, Morton once again moves for summary judgment dismissing plaintiff's Labor Law 240(1) claim as a matter of law. For the reasons that follow, this motion is denied.
The following undisputed facts, derived from the parties' pleadings and submissions on the prior and present summary judgment motions, are reported here as essentially unchanged in any material respect from the court's November 19, 2010 ruling.
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 twenty 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 structure composed of bricks which were mortared to the outside and inside walls of the hopper to function as both a "cradle" upon which the hopper rested 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 dismantling the end cap by using hand-held forty-pound pneumatic jack hammers while standing on the plywood platform above the conveyor belt. The top of the end cap structure was approximately nine feet above the plywood platform on which the workers were standing, and the bottom of the concrete half-pipe was approximately two feet above the plywood platform.
Plaintiff and Mr. Snuszki began the demolition of the end cap while standing on the same side of the structure, but Mr. Snuszki soon moved around to the opposite side to create more working space. The workers began at the top of the brick structure and worked toward the bottom, removing 2 or 3 bricks at a time. After approximately 20 minutes and the removal of several rows of bricks, a large portion of the remaining end cap structure suddenly collapsed and landed on plaintiff, injuring his left leg and ankle. See ...