| Duffina v County of Essex |
| 2013 NY Slip Op 07531 [111 AD3d 1035] |
| November 14, 2013 |
| Appellate Division, Third Department |
| Rickey L. Duffina, Respondent, v County of Essex,Appellant, and Graymont Materials, Inc., Respondent. (And a Third-PartyAction.) |
—[*1] Poissant, Nichols, Grue & Vanier, PC, Malone (Stephen A. Vanier of counsel), forRickey L. Duffina, respondent. Burke, Scolameiro, Mortati & Hurd, LLP, Albany (Mark G. Mitchell of counsel), forGraymont Materials, Inc., respondent.
Peters, P.J. Appeal from an order of the Supreme Court (Muller, J.), entered May 21,2012 in Essex County, which, among other things, denied a motion by defendant Countyof Essex for summary judgment dismissing the complaint against it.
In 2007, defendant County of Essex contracted with defendant Graymont Materials,Inc. for the supply of asphalt to be used by the County in maintaining its roadways.Graymont, in turn, contracted with Beaudin Brothers Trucking to transport and deliverthe asphalt. On August 24, 2007, plaintiff, a dump truck driver employed by Beaudin,was assigned to haul asphalt from a quarry to a county paver at a construction sitelocated on Hurricane Road in the Town of Keene, Essex County. On that day, the pavingoperations started towards the top of one particular slope of Hurricane Road andcontinued in a downward direction. As plaintiff crested [*2]the hill upon his arrival at the site with his second haul ofthe day, the brakes of his tri axle dump truck ceased functioning, causing it to barrel pastthe paving operation and continue down the hill at a high rate of speed. According toplaintiff, he had to swerve to avoid oncoming civilian traffic as well as constructionvehicles and, when it became apparent that he could no longer control the vehicle, hekicked the door open and jumped from the truck, which then ran off the road, through aguardrail and over an embankment. Plaintiff sustained severe physical injuries, includingdamage to his brain and spinal cord.
As a result, plaintiff commenced this action against the County alleging negligenceand a violation of Labor Law § 241 (6). Following joinder of issue, the Countycommenced a third-party action seeking both common-law and contractualindemnification from Graymont and third-party defendants, the proprietors of BeaudinBrothers Trucking. Thereafter, plaintiff commenced a separate action for negligence anda Labor Law § 241 (6) violation against Graymont. After the two actions wereconsolidated, Graymont moved for summary judgment dismissing the complaint and theCounty's indemnification claims against it. The County likewise moved for summaryjudgment, seeking dismissal of the complaint and judgment on its contractualindemnification claim against Graymont, and plaintiff cross-moved for summaryjudgment on his Labor Law § 241 (6) claim. Following extensive oral argument,Supreme Court rendered a sparse decision from the bench which, among other things,denied the County's motion in all respects and granted Graymont's motion dismissing theCounty's indemnification claim against it. The County appeals.
We reject the County's contention that the notice of claim was insufficient to appriseit of several of the allegations of negligence set forth in plaintiff's complaint and bill ofparticulars. "The test of the sufficiency of a [n]otice of [c]laim is merely 'whether itincludes information sufficient to enable the [municipality] to investigate' " (Brown vCity of New York, 95 NY2d 389, 393 [2000], quoting O'Brien v City ofSyracuse, 54 NY2d 353, 358 [1981]; accord Baker v Town of Niskayuna, 69 AD3d 1016, 1017[2010]; see Rosenbaum v Cityof New York, 8 NY3d 1, 11 [2006]). Plaintiff's amended notice of claim clearlyset forth the date, time and location of the accident, and described how it occurred. Suchnotice also stated that the claim was one for personal injuries suffered by plaintiff,asserted that the County was negligent in failing to provide a safe work environment, andlisted specific negligent conduct by the County as a cause of the accident. Thus, thenotice of claim contained sufficient information to apprise the County of the potentialallegations of negligence asserted and afforded it ample opportunity to promptlyinvestigate (see Baker v Town of Niskayuna, 69 AD3d at 1017-1018;compare Mitchell v City of New York, 131 AD2d 313, 315-316 [1987]).
The County next contends that Supreme Court erred in denying its motion forsummary judgment dismissing plaintiff's common-law negligence claims, specificallyarguing that plaintiff failed to provide sufficient evidence to establish any negligence onits behalf. With the exception of plaintiff's claim that the County was negligent inpermitting public traffic on Hurricane Road while the construction was ongoing, weagree. The crux of plaintiff's common-law negligence claim[FN1]is that, in light of the steepness and grade of the relevant portion of Hurricane Road, the[*3]County was negligent with respect to the manner inwhich it conducted the paving operations, including its decision to pave in a downwardfashion and the manner in which it instructed asphalt to be loaded into the paver.Plaintiff asserts that, as a result of such negligence, great stress was placed on the brakesof his truck, which ultimately caused them to fail. While the County oversaw theconstruction operations and, in so doing, determined the manner in which the paverwould be operated and the method by which the asphalt would be dumped into the paver,plaintiff failed to submit any competent evidence, expert or otherwise, establishing thatthe work was being performed in an unsafe manner. Although certain witnessescharacterized the portion of the road being paved as "steep," no evidence was presentedto quantify the grade or slope of the road or to establish that it was unusually dangerousfor the nature of the work or the manner in which it was being performed. Nor hasplaintiff shown that the method by which the asphalt was delivered to the paver violatedany industry-wide standards or accepted practices. Moreover, there is no evidence thatplaintiff, or anyone else, complained to the County regarding the steepness of the slopeor of any other unsafe condition with respect to the work being performed, and the proofsubmitted on the motion established that none of the other drivers of tri axle dump trucksencountered any problems performing tasks similar to plaintiff's. Thus, except asdiscussed below, we find no proof that the County acted negligently with respect to itsdecisions concerning the manner in which the paving operations were being performed(see Ulrich v Motor ParkwayProps., LLC, 84 AD3d 1221, 1223 [2011]).
With regard to its alleged negligence in permitting civilian traffic to continue whileconstruction was underway, the County asserts that summary judgment in its favor iswarranted because the accident was caused by plaintiff's improper operation of hisvehicle, rather than any negligence on its part. It is well settled, however, that there maybe more than one proximate cause of an injury (see Argentina v Emery World WideDelivery Corp., 93 NY2d 554, 560 n 2 [1999]; Bailey v County of Tioga, 77 AD3d 1251, 1253 [2010]),and it is of no consequence that the accident was not set in motion by any negligence onthe part of the County. So long as it can be demonstrated that the decision to permitpublic traffic to continue during the paving operations was "a substantial factor inaggravating plaintiff's injuries, a cause of action may be upheld" (Gutelle v City ofNew York, 55 NY2d 794, 796 [1981]; see Popolizio v County of Schenectady, 62 AD3d 1181,1183 [2009]; Hill v Town ofReading, 18 AD3d 913, 916 [2005]; Temple v Chenango County, 228AD2d 938, 940 [1996]).
Plaintiff testified that, after his brakes failed, he swerved into the left-hand lane toavoid the paver and other construction vehicles parked in the right-hand lane, and thensaw three cars coming towards him in that left-hand lane which were forced to pull offthe road in order to avoid his vehicle. He further explained that the presence of these carsprevented him from driving his truck into a ditch in order to stop. Viewing this evidencein a light most favorable to plaintiff and affording him the benefit of every positiveinference (see Coleman vCrumb Rubber Mfrs., 92 AD3d 1128, 1130 [2012]; Bailey v County ofTioga, 77 AD3d at 1253), we conclude [*4]that anissue of fact exists as to whether the alleged negligence of the County in permittingpublic traffic on Hurricane Road, while construction was ongoing, was a substantialfactor in causing or exacerbating plaintiff's injuries (see Ferguson v Sheahan, 71 AD3d 1207, 1210 [2010]; Popolizio v County ofSchenectady, 49 AD3d 1117, 1119 [2008]; Hill v Town of Reading, 18AD3d at 915-916; Gonzalez v City of New York, 268 AD2d 214, 215 [2000]).
We next address the County's contention that Supreme Court should have dismissedplaintiff's cause of action under Labor Law § 241 (6). That statute "imposes anondelegable duty upon owners and contractors to provide reasonable and adequateprotection and safety to construction workers" (Comes v New York State Elec. & GasCorp., 82 NY2d 876, 878 [1993]; see St. Louis v Town of N. Elba, 16 NY3d 411, 413[2011]; Kropp v Town ofShandaken, 91 AD3d 1087, 1090 [2012]). In order to establish a cause of actionunder Labor Law § 241 (6), "a plaintiff must show the applicability of a specificprovision of the Industrial Code to the relevant work, a violation of the regulation, andthat such violation constituted causally related negligence" (Copp v City of Elmira, 31AD3d 899, 899 [2006]; accord Lynch v 99 Washington, LLC, 80 AD3d 977, 978[2011]).
Plaintiff alleges that the County violated 12 NYCRR 23-9.7 (a),[FN2]which provides that "[t]he brakes of every motor truck shall be so maintained that suchtruck with full load may be securely held on any grade that may be encountered in normaluse on the job." While the County does not dispute that this provision is sufficientlyspecific to form the basis for liability under Labor Law § 241 (6), it argues that theregulation is not applicable to the circumstances here. Mindful that "[t]he Industrial Codeshould be sensibly interpreted and applied to effectuate its purpose of protectingconstruction laborers against hazards in the workplace" (St. Louis v Town of N.Elba, 16 NY3d at 416; seeMcCoy v Metropolitan Transp. Auth., 75 AD3d 428, 429 [2010]), we cannotagree. Although the regulation speaks in terms of the ability of the brakes to "h[o]ld" theconstruction vehicle, the purpose of the regulation is to ensure proper functioning of atruck's brakes on any terrain or grade normally encountered. Thus, we find that thelanguage of the regulation addresses not only the ability of a truck's brakes to hold astopped truck in place, but also the ability of the brakes to bring a moving vehicle to astop. Any other interpretation would not only lead to an incongruous result, but wouldalso be inconsistent with the purpose of the regulation, specifically, and the IndustrialCode as a whole (see Copp v City of Elmira, 31 AD3d at 900). Furthermore,inasmuch as there is conflicting evidence as to whether, as plaintiff's expert opines, thebrake failure was caused by inadequate maintenance, there exist factual issuesconcerning whether the claimed violation was a proximate cause of plaintiff's injuries, aswell as questions regarding his comparative fault (see Milanese v Kellerman, 41 AD3d 1058, 1061-1062[2007]; Copp v City of Elmira, 31 AD3d at 900; Wells v British Am. Dev.Corp., 2 AD3d 1141, 1144 [2003]; Bryant v General Elec. Co., 221AD2d 687, 689-690 [1995]).
Finally, we agree with the County that dismissal of its contractual indemnificationdefense against Graymont was improper. The indemnification clause expresslyincorporated into [*5]the contract between Graymont andthe County provides that the former "shall defend, indemnify and hold harmless theCounty to the fullest extent allowed by law from and against any and all liability, suits,judgments, orders, causes of action, and claims . . . arising out of or inconnection with [Graymont's] negligence and/or its performance or failure to performthis agreement."[FN3]Pursuant to the parties' agreement, Graymont was responsible for both furnishing theasphalt as well as delivering it to the county paving machines at the designated job site,and it is undisputed that the accident occurred during such delivery. Accordingly,plaintiff's claims here clearly arose out of or in connection with Graymont's performanceof the agreement, and the County is therefore entitled to summary judgment on itscontractual indemnification claim against Graymont (see Walls v Sano-Rubin Constr. Co., 4 AD3d 599, 602[2004]; Kozerski v Deer Run Homeowners Assn., 217 AD2d 841, 843 [1995]).
Rose and Lahtinen, JJ., concur.
Egan Jr., J. (concurring). I recognize that, notwithstanding the seemingly contrarylanguage of the statute, Labor Law § 241 (6) has been judicially extended toencompass highway repaving projects (see Mosher v State of New York, 80NY2d 286, 288-289 [1992]; see also Ares v State of New York, 80 NY2d 959,960 [1992]; Torres v Springcreek Assoc., 295 AD2d 976, 977 [2002]), and Iacknowledge both that plaintiff has alleged the violation of a specific provision of theIndustrial Code and that the record before us contains conflicting proof as to the cause ofthe asserted brake failure. For those reasons, and given the constraints of the existingcase law, I reluctantly conclude that defendant County of Essex is not entitled tosummary judgment dismissing plaintiff's Labor Law § 241 (6) cause of action.That said, I write separately because I fail to see how either the statutory goal or theremedial purpose of the Labor Law is advanced by holding the County liable under thecircumstances presented here.
The County contracted with defendant Graymont Materials, Inc. to supply asphalt forthe paving project, and Graymont, in turn, contracted with plaintiff's employer, BeaudinBrothers Trucking, to transport and deliver the asphalt to the Hurricane Road paving sitein the Town of Keene, Essex County. On the day of the accident, plaintiff delivered hisfirst load of asphalt to the job site without incident and returned to the plant to pick upanother load. During the course of the 45- to 60-minute drive from the plant back to theHurricane Road site, plaintiff did not experience any difficulties with the brakes on thedump truck. As plaintiff crested the hill at the job site, however, the truck's brakespurportedly failed.
Initially, to my analysis, the only factor that distinguishes plaintiff's Labor Law§ 241 (6) claim from a run-of-the-mill motor vehicle accident—the latter ofwhich, under the circumstances presented here, would not provide a basis for imposingliability upon the County—is the fact that the alleged brake failure occurred asplaintiff approached the job site. Had the [*6]assertedfailure occurred at the asphalt plant itself or at any point along the route that was not inclose proximity to the Hurricane Road site, the County, which did not own or operateeither the dump truck or the asphalt facility, clearly would not be liable (see Flores v ERC HoldingLLC, 87 AD3d 419, 420-421 [2011]). Notably, although plaintiff indeed wastransporting materials that were an integral part of the repaving project, he was notactually engaged in unloading the asphalt at the time that the accident occurred. Underthese circumstances, plaintiff should not, in my view, be entitled to the protectionafforded by the statute simply—and only—by virtue of the fact that hisbrakes purportedly failed just as he arrived at the site.
Additionally, while the contested causation issues may well break in the County'sfavor at trial, I do not believe that either the statutory goal or the remedial purpose of thestatute is served or furthered by effectively casting the County—and othersimilarly situated owners—in the role of an insurer. Indeed, by allowing plaintiff'sLabor Law § 241 (6) cause of action to stand, we essentially are advising theCounty to—going forward—either undertake an independent inspection ofall vehicles owned by its contractors' subcontractors to ensure compliance with anypotentially applicable Industrial Code regulations or suffer the consequences of failing todo so. In my view, placing that burden upon an owner such as the County extends thestatutory scheme far beyond its intended reach.
Ordered that the order is modified, on the law, without costs, by reversing so muchthereof as (1) denied the motion of defendant County of Essex for summary judgment (a)on its cross claim for indemnification against defendant Graymont Materials, Inc. and (b)dismissing the Labor Law § 241 (6) cause of action against it to the extent that it isbased on 12 NYCRR 23-9.7 (b) and (c), and (2) granted Graymont's motion for summaryjudgment dismissing the County's cross claim; the County's motion granted to that extent,and Graymont's motion denied to that extent; and, as so modified, affirmed.
Footnote 1: While plaintiff'scomplaint and bill of particulars broadly allege the existence of a "dangerous condition"on the roadway, and set forth several allegations such as negligent design andmaintenance of the road and failure to repair and maintain the road in a safe condition forthe use of the motoring public, plaintiff's counsel clarified during oral argument beforeSupreme Court that plaintiff's theory of negligence was not that the road was dangerousor defective for everyday use, but that it presented a hazard for construction vehiclessuch as plaintiff's in connection with the manner in which the work was being performed.
Footnote 2: To the extent thatplaintiff's claim relies upon 12 NYCRR 23-9.7 (b) and/or (c), it must be dismissed. 12NYCRR 23-9.7 (b) has no application to the facts of this case, and there is no evidencethat plaintiff's vehicle was loaded beyond its rated capacity in violation of 12 NYCRR23-9.7 (c).
Footnote 3: While Graymont alsocites an indemnification clause set forth in a County document entitled "GeneralSpecifications for Procurement Contracts," this was not incorporated into the parties'agreement.