| Fassett v Wegmans Food Mkts., Inc. |
| 2009 NY Slip Op 07712 [66 AD3d 1274] |
| October 29, 2009 |
| Appellate Division, Third Department |
| Joseph Fassett, Respondent-Appellant, v Wegmans Food Markets,Inc., Respondent, and Hunt Engineers, Architects and Land Surveyors, P.C.,Appellant-Respondent. |
—[*1] The Stanley Law Offices, Syracuse (Keith Young of counsel), for respondent-appellant. Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (Michelle M. Westerman of counsel), forrespondent.
Peters, J.P. Cross appeals from an order of the Supreme Court (Lebous, J.), entered June 30,2008 in Broome County, which, among other things, granted the motion of defendant WegmansFood Markets, Inc. for summary judgment dismissing the complaint against it.
Plaintiff was employed as a heavy equipment operator by Fahs Rolston Paving Corporation,which had been contracted by defendant Wegmans Food Markets, Inc. to replace a sidewalkoutside of a Wegmans store in the City of Ithaca, Tompkins County. Wegmans had also enteredinto a contract with defendant Hunt Engineers, Architects and Land Surveyors, P.C. in whichHunt agreed to provide construction monitoring and inspection services in connection with thesidewalk reconstruction. While plaintiff was exiting the cab of the backhoe he had beenoperating, he slipped on mud that had accumulated on the backhoe's battery cover, which servedas a step to access the cab, and injured his ankle. Work had been suspended the previous day due[*2]to heavy rain and, on the date of the accident, the work sitewas extremely muddy and it was misting.
Plaintiff commenced this action against Wegmans and Hunt alleging common-lawnegligence and violations of Labor Law §§ 200, 240 (1) and § 241(6).[FN1]Following joinder of issue and discovery, defendants moved for summary judgment dismissingthe complaint. Supreme Court granted Wegmans' motion for summary judgment in its entirety,granted Hunt's summary judgment motion as to the cause of action under Labor Law § 241(6), but denied Hunt's motion as to the negligence and Labor Law § 200 claims. Thesecross appeals by plaintiff and Hunt ensued.
We begin by addressing plaintiff's Labor Law § 200 and common-law negligenceclaims. Labor Law § 200 is a codification of the common-law duty of an owner or generalcontractor to provide construction site workers with a safe place to work (see Rizzuto v L.A.Wenger Contr. Co., 91 NY2d 343, 352 [1998]; Comes v New York State Elec. & GasCorp., 82 NY2d 876, 877 [1993]). In order for Wegmans or Hunt to be found liablethereunder, "it must be shown that they 'exercised supervisory control over plaintiff's work andhad actual or constructive knowledge of the unsafe manner in which the work was beingperformed' " (Biance v ColumbiaWashington Ventures, LLC, 12 AD3d 926, 927 [2004], quoting Turner v Sano-Rubin Constr. Co., 6AD3d 910, 911 [2004]; see Shieldsv General Elec. Co., 3 AD3d 715, 716 [2004]).
Here, while Wegmans retained general contractual authority to halt work and object to workthat did not conform to contract specifications, there is no evidence that it exercised any directsupervision or actual control over the construction site or the work activity bringing about theinjury. Paul Lehrer, an engineer employed by Wegmans and the project manager for thesidewalk reconstruction project, stated in his deposition that he was never physically present atthe work site, was not directly involved in directing the construction and that Hunt wasWegmans' on-site representative. Indeed, Lehrer testified that he was never contacted regardingthe weather conditions at the site either the day prior to plaintiff's accident when work wascancelled or on the day of the incident. Plaintiff confirmed that neither Lehrer nor any otherWegmans' employee was ever present at the construction site and that no one from Wegmansever directed his work. Thus, with no record evidence that Wegmans exerted any actual controlor supervision over plaintiff or the manner in which the work was performed, Supreme Courtproperly dismissed the negligence and Labor Law § 200 claims against Wegmans (seeLombardi v Stout, 80 NY2d 290, 295 [1992]; Blysma v County of Saratoga, 296AD2d 637, 639 [2002]; Fairchild v Servidone Constr. Corp., 288 AD2d 665, 668[2001]).
As to Hunt, we agree with Supreme Court that plaintiff raised a triable issue of fact sufficientto withstand summary judgment. Although Hunt correctly notes that "general supervisoryauthority at the work site for the purpose of overseeing the progress of the work and inspectingthe work product has been found insufficient to establish a cause of action under Labor Law§ 200" (Riccio v Shaker Pine, 262 AD2d 746, 748 [1999], lv dismissed 93NY2d 1042 [1999]; see Riley v Stickl Constr. Co., 242 AD2d 936, 937 [1997]), plaintiffsubmitted proof demonstrating that Hunt actually exercised supervisory control and directed hiswork. Specifically, plaintiff testified at his deposition that Larry Smith, Hunt's engineeringtechnician assigned to the project, was present at the work site each day when he arrived and thathe would [*3]consult with Smith regarding what work he was toperform and how he was to perform it. In addition, plaintiff considered Smith to be his boss andbelieved that Smith had the authority to control the method and manner of his work. Accordingto plaintiff, on the first day of the job, he consulted with Smith regarding the proper method forperforming the drain installation and sidewalk excavation. Although he advised Smith that thedrain should be installed before removing the existing sidewalk, Smith disagreed and instructedhim to remove the existing sidewalk first. Notwithstanding Hunt's assertions that it had nocontractual authority to halt work or remedy a dangerous condition, the record reveals that Smithwas aware of the condition of the work site and, in fact, participated in the decision to shut downthe work site on the day prior to the accident due to inclement weather (see Finkle v A.J. Eckert Co., Inc., 11AD3d 794, 796 [2004]; Beyea v Malcolm Pirnie, Inc., 298 AD2d 940, 940-941[2002]). Moreover, Smith conceded that he had the authority to stop the work if, in his opinion,it was not being carried on in a safe manner. This evidence was sufficient to create an issue offact as to whether Hunt exercised the requisite supervisory or safety control over plaintiff's workon the property so as to preclude summary judgment on the negligence and Labor Law §200 claims (see Corsino v New YorkCity Tr. Auth., 9 NY3d 978, 979 [2007]; Rizzuto v L.A. Wenger Contr. Co., 91NY2d at 352-353).
With respect to plaintiff's Labor Law § 241 (6) cause of action, to the extent that it ispredicated upon a violation of 12 NYCRR 23-1.7 (d),[FN2]we find that Supreme Court erred in granting summary judgment in favor of defendants. LaborLaw § 241 (6) imposes a nondelegable duty upon owners, contractors and their agents toprovide adequate protection and safety for workers and, to establish a claim under this section,plaintiff must allege that defendants violated a rule or regulation promulgated by theCommissioner of Labor that sets forth a specific standard of conduct (see Ross vCurtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 [1993]; Copp v City of Elmira, 31 AD3d899, 899 [2006]; Musillo v Marist Coll., 306 AD2d 782, 783 [2003]). 12 NYCRR23-1.7 (d) provides, in pertinent part, that no employee shall be permitted "to use a floor,passageway, walkway, scaffold, platform or other elevated working surface which is in aslippery condition" and requires the removal of any "[i]ce, snow, water, grease and any otherforeign substance which may cause slippery footing."
Here, plaintiff slipped on mud that had accumulated on the battery cover of the backhoe andfell approximately four feet to the ground. The battery cover served as a step and was the onlymeans of access to the cab. While the cover previously had foot treads on it, they had wornaway. Thus, the uncontroverted evidence established that the battery cover constituted apassageway that plaintiff was required to use in order to access his equipment (see Beltrone vCity of New York, 299 AD2d 306, 308 [2002]; Whalen v City of New York, 270AD2d 340, 342 [2000]; see alsoConklin v Triborough Bridge & Tunnel Auth., 49 AD3d 320, 321 [2008]; Linkowski v City of New York, 33AD3d 971, 974 [2006]; cf. Cafarella v Harrison Radiator Div. of Gen. Motors, 237AD2d 936, 937 [1997]). Notably, responsibility under Labor Law § 241 (6) extends notonly to the area where the work was actually being conducted, but to the entire construction site,including passageways and platforms, in order to insure the safety of workers going to and fromthe points of actual work (see Kane v Coundorous, 293 AD2d 309, 311 [2002]; Rossiv Mount Vernon Hosp., 265 AD2d 542, 543 [1999]; Sergio v Benjolo N.V., 168AD2d 235, 236 [1990]; Brogan v International Bus. Machs. Corp., 157 AD2d 76, 79[1990]). Furthermore, contrary to Wegmans' contention, the mud on the backhoe's battery coverupon [*4]which plaintiff slipped was a "foreign substance" withinthe meaning of 12 NYCRR 23-1.7 (d) (see Conklin v Triborough Bridge & TunnelAuth., 49 AD3d at 321; Cottone v Dormitory Auth. of State of N.Y., 225 AD2d1032, 1033 [1996]; see also Sweet v Packaging Corp. of Am., Tenneco Packaging, 297AD2d 421, 422 [2002]; cf. Scarupa v Lockport Energy Assoc., 245 AD2d 1038, 1039[1997]).
Rose, Lahtinen, Kane and Malone Jr., JJ., concur. Ordered that the order is modified, on thelaw, without costs, by reversing so much thereof as granted the motions of defendants WegmansFood Markets, Inc. and Hunt Engineers, Architects and Land Surveyors, P.C. for summaryjudgment dismissing the Labor Law § 241 (6) claim; said motions denied to that extent;and, as so modified, affirmed. [See 20 Misc 3d 1119(A), 2008 NY Slip Op 51393(U).]
Footnote 1: Plaintiff later withdrew hisLabor Law § 240 (1) claim.
Footnote 2: Plaintiff abandoned his claimunder 12 NYCRR 23-9.2.