Torres v. National Railroad Passenger Corporation

Filing 39

OPINION & ORDER: re: 10 MOTION for Summary Judgment filed by National Railroad Passenger Corporation, 17 MOTION for Summary Judgment filed by Jonathan Torres. For the foregoing reasons, Defendant's motion for summary judgment is GRANTED with respect to Plaintiff's Labor Law § 200 claims and Labor Law § 241(6) claims based upon Industrial Code§§ 23-1.16, 23-1.17, 23-1.19, 23-1.22, 23-1.3, 23-2.5 and DENIED with respect to all other Claims. Plaintiff's motion for summary judgment is DENIED. The clerk of the Court is instructed close these motions and remove them from my docket. SO ORDERED. (Signed by Judge Harold Baer on 1/30/2014) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JONATHAN TORRES
:
:
Plaintiff,
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- against :
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NATIONAL RAILROAD PASSENGER
:
CORPORATION d/b/a AMTRAK,
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:
Defendant.
:
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13 Civ. 233 (HB)
OPINION & ORDER

Hon. HAROLD BAER, JR., District Judge:
Plaintiff Jonathan Torres (“Plaintiff”) brings claims pursuant to New York Labor
Law §§ 200, 240(1), 241(6) for personal injuries sustained while working on a
construction site owned by Defendant National Railroad Passenger Corporation d/b/a
Amtrak (“Defendant”). Before the Court is a motion for summary judgment brought by
Defendant. Plaintiff cross-moves for partial summary judgment on his §§ 240(1) and
241(6) claims. For the reasons below, Defendant’s motion for summary judgment is
GRANTED in part and DENIED in part. Plaintiff’s motion for partial summary judgment
is DENIED.
BACKGROUND1
On May 28, 2010, Plaintiff was employed by Skanska and was assigned to work on
Defendant’s Ventilation Shaft Project, in shaft number 4. (Def.’s 56. 1 ¶ 9.) Plaintiff was
working on the “bench level,” which is approximately 85-97 feet below the top of the shaft and
midway between the top of the tunnel and the track bed. (Torres Dep. 94:18-24; Dumm
Dep.43:9-44:2.) Skanska carpenter Kevin Egan was dismantling scaffolding about nine feet
above ground level. (Joseph Decl. Ex. I, Skanska Incident Report.) In the course of this task,
Egan dropped a wooden plank that he was carrying by hand by himself. (Id.) The plank “[struck]
a concrete wall then ricochet[ed] off [the] wall striking [Plaintiff] in the back of the head.” (Id;
Zazzera Dep. 70:9-10). The plank fell about fifteen feet before hitting the Plaintiff. (Zazzera
Dep. 73:16-74:3; Def.’s Reply Mem. at 5.) The Plaintiff was not directly underneath the scaffold

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These facts are undisputed unless otherwise noted.

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that was being dismantled, and was about 20 feet away from it. (Zazzera Dep. 102:9-15). The
wooden plank that struck Plaintiff was approximately ten feet long, 12 inches wide and 1 inch
deep. (Id. at 56: 7-21). There is disputed testimony with respect to how much the plank weighed,
ranging between approximately 40 pounds to 80-100 pounds. (Zazzera Dep. 57: 2-5; Parr Aff.
¶10A; Dumm Dep. 62: 4-7; Burdett Aff. ¶ 3). When hit by the scaffold, the Plaintiff was struck
on the top of his head and knocked to his bottom. (Pl.’s and Def.’s 56.1 ¶ 17). His hard hat was
cracked as a result of the impact. (Id. at ¶ 18).
DISCUSSION2
Summary judgment is appropriate “only if ‘there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.’” Kuebel v. Black
& Decker Inc., 643 F.3d 352, 358 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). The
Court must “constru[e] the evidence in the light most favorable to the nonmoving party
and draw[] all reasonable inferences in that party’s favor.” Id. “The party seeking
summary judgment has the burden to demonstrate that no genuine issue of material fact
exists.” Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002). “Summary
judgment is improper if there is any evidence in the record that could reasonably support
a jury’s verdict for the non-moving party.” Id.
A. Labor Law § 200
Labor Law § 200 is “a codification of the common-law duty imposed upon an
owner or general contractor to maintain a safe construction site.” Rizzuto v. L.A. Wenger
Contracting Co., Inc., 91 N.Y.2d 343, 352 (1998). The Plaintiff has not addressed or
made any arguments in opposition to Defendant’s motion for summary judgment on
Plaintiff’s Labor Law § 200 claim. “Federal courts may deem a claim abandoned when a
party moves for summary judgment on one ground and the party opposing summary
judgment fails to address the argument in any way.” Maher v. Alliance Mortgage
Banking Corp., 650 F. Supp. 2d 249, 267 (E.D.N.Y. 2009)(internal quotation and citation
omitted); see also Anti-Monopoly, Inc. v. Hasbro, Inc., 958 F. Supp. 895, 907 n.11

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The Defendant urges the Court to disregard Plaintiff’s expert’s affidavit because Plaintiff has not yet
submitted an expert report. The Defendant raised this issue during briefing and requested additional time in
order to “assess the necessity of consulting with and/or retaining an expert,” which the Court granted. Dckt.
Entry 30. Indeed, the Defendant did file an expert affidavit with its reply brief. While I will of course give
Plaintiff’s expert affidavit only the weight it deserves, I decline to strike it entirely at this stage.

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(S.D.N.Y. 1997) aff'd, 130 F.3d 1101 (2d Cir. 1997). Accordingly, summary judgment is
granted and the Labor Law § 200 claim is dismissed.
B. Labor Law § 240(1)
Labor Law § 240(1) provides, in relevant part:
All contractors and owners and their agents . . . 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.
N.Y. Lab. Law § 240. “The statute imposes absolute liability on building owners and
contractors whose failure to provide proper protection to workers employed on a
construction site proximately causes injury to a worker.” Wilinski v. 334 E. 92nd Hous.
Dev. Fund Corp., 18 N.Y.3d 1, 7 (2011)(internal citation and quotation mark omitted).
The New York Court of Appeals has identified the “core premise” that guides the
§ 240(1) inquiry: “a defendant’s failure to provide workers with adequate protection from
reasonably preventable, gravity-related accidents will result in liability.” Id.
However, “[n]ot every falling object case is embraced by Labor Law § 240”
Rosado v. Briarwoods Farm, Inc., 19 A.D.3d 396, 398, 796 N.Y.S.2d 394 (2005); see
also Roberts v. Gen. Elec. Co., 97 N.Y.2d 737, 738, 768 N.E.2d 1127 (2002). “Rather,
liability is contingent upon the existence of a hazard contemplated in section 240(1) and
the failure to use, or the inadequacy of, a safety device of the kind enumerated therein.”
Narducci v. Manhasset Bay Associates, 96 N.Y.2d 259, 267, 750 N.E.2d 1085 (2001).
Accordingly, in order to determine whether a holding of absolute liability is
applicable under Labor Law § 240(1), I must decide first whether Plaintiff’s injury
“directly flow[ed] from the application of the force of gravity to an object or person,”
Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501 (1993)(emphasis in
original), and second, whether “the object fell, while being hoisted or secured, because of
the absence or inadequacy of a safety device of the kind enumerated in the statute.”
Narducci, 96 N.Y.2d at 268 (2001). It is undisputed that Plaintiff’s injury resulted from
the force of gravity, i.e., the fall of the plank from an elevation of 15 feet. See Def.’s
Reply Mem. at 5 (“Amtrak has effectively conceded that the wooden plank in this case
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fell approximately 15 feet”). However, a question of fact remains with respect to whether
and how the scaffold could have been secured, and whether the failure to secure it was
the cause of Plaintiff’s injury.
At a minimum, the Defendant’s and Plaintiff’s experts differ with respect to
whether the removal of the plank required the use of a hoist, brace or rope, as required for
a finding of liability under § 240(1). Because a factual question remains regarding
whether and how the plank which injured the Plaintiff could or should have been secured,
neither party is entitled to summary judgment.
C. Labor Law § 241(6)
“Under New York Labor Law § 241(6), owners and contractors are vicariously liable
for injuries due to, inter alia, failure to provide workers with safety devices required by
the New York Industrial Code.” Perez, 2011 WL 96837 at *2 (E.D.N.Y. Jan. 11, 2011).
Here, the Plaintiff claims that Defendant violated Industrial Code §§ 23-1.7, 23-1.16, 231.17, 23-1.19, 23-1.22, 23-1.3, 23-2.2, 23-2.5, 23-3.3, 23-5.1. The Defendant has moved
for summary judgment on all sections except §§ 23-2.2 and 23-5.1.
1. Industrial Code §§ 23-1.16, 23-1.17, 23-1.19. 23-1.22, 23-1.3
The Plaintiff has not made any arguments in opposition to Defendant’s arguments that
sections §§ 23-1.16, 23-1.17, 23-1.19. 23-1.22, 23-1.3 of the Industrial Code do not apply to this
case. As such, the Court deems these claims abandoned and grants summary judgment to
Defendant on them. See Maher v. Alliance Mortgage Banking Corp., 650 F. Supp. 2d 249, 267
(E.D.N.Y. 2009).
2. Industrial Code § 23-1.7
Industrial Code § 23-1.7 provides that “[e]very place where persons are required
to work or pass that is normally exposed to falling material or objects shall be provided
with suitable overhead protection.” N.Y. Comp. Codes R. & Regs. tit. 12, § 23-1.7. The
Code “set[s] forth specific standards for planking required for overhead protection.”
Zervos v. City of New York, 8 A.D.3d 477, 480, 779 N.Y.S.2d 106 (2004). Defendant
argues that Plaintiff’s work location was not “normally exposed to falling material or
objects” because Plaintiff testified at his deposition that he had never seen nor heard of
anything falling in that area and that this did not “normally” occur. Torres Dep. 127: 217. However, Skanska Site Safety Manager Philip Zazzera testified that he “spoke about
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overhead hazards at least three, four times a week” as a result of “the nature of the
project” as a “vertical project.” Zazzera Dep. 35:2-10. This Court cannot conclude as a
matter of law whether this work site is “normally exposed to falling material or objects.”
Thus, this constitutes another issue of material fact and must be left for the jury to decide.
3. Industrial Code § 23-2.5
Industrial Code § 23-25.1 states:
(a) General. Persons required to perform work in or at shafts, other than elevator
shafts, shall be provided with the following protection:
(1) Protection from falling material. A tight covering consisting of planks at least
two inches thick full size, exterior grade plywood at least three-quarters inch thick or
material of equivalent strength shall be installed so as to cover the entire crosssectional area of the shaft. Such cover shall be located at a point in the shaft not
more than two stories or 30 feet, whichever is less, above the level where persons
are working.
N.Y. Comp. Codes R. & Regs. tit. 12, § 23-2.5(emphasis added). It is undisputed that the
plank which hit the Plaintiff fell approximately 15 feet. Thus, even if Defendant had
complied with this regulation and placed a covering 30 feet or two stories (approximately
20 feet, according to Plaintiff, Pl.’s Opp. Mem. at 18) above the area where the Plaintiff
was working, Plaintiff’s injury would not have been prevented. Protection under Labor
Law § 241 (6) only applies where injury is “due to” noncompliance with a relevant
regulation. Perez, 2011 WL 96837 at *2 (E.D.N.Y. Jan. 11, 2011). Because the Plaintiff
could have suffered the same injury even if Defendant had fully complied with this
provision, Plaintiff’s injury was not a result of Defendant’s noncompliance. Thus,
summary judgment is granted for Defendant on this claim.
4. Industrial Code § 23-3.3(c)
Industrial Code 23-3.3(c) states:
(c) Inspection. During hand demolition operations, continuing inspections shall be made
by designated persons as the work progresses to detect any hazards to any person
resulting from weakened or deteriorated floors or walls or from loosened material.
Persons shall not be suffered or permitted to work where such hazards exist until
protection has been provided by shoring, bracing or other effective means.
N.Y. Comp. Codes R. & Regs. tit. 12, § 23-3.3. The Industrial Code defines demolition
as “[t]he work incidental to or associated with the total or partial dismantling or razing of
a building or other structure including the removing or dismantling of machinery or other
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equipm nt." N.Y. Compo Codes R. & Regs. tit. 12, § 23-1.4. Based on the parties'
descrip .ons, the work undertaken at this site constituted demolition. Def.' s & PI.' s 56.1 ~
4. It is

disputed that Zazzera directed crew foremen to conduct daily inspections and

docum nt overhead hazards, and conducted daily inspections himself. Zazzera Dep. 30:
9-31: 1 ; 32: 12-18. The Defendant asserts that ~~[t]he thrust of this subdivision is to
fashion a safeguard, in the form of ~continuing inspections', against hazards which are
created by the progress of the demolition work itself." Balladares v. Southgate Owners

Corp., 0 A.D.3d 667,670,835 N.Y.S.2d 693 (2007)(intemal citation omitted).
Howev r, dismantling scaffolding could be considered a hazard of the demolition work,
and a j

could conclude that the plank was "loosened material" within the scope of the

statute. Further, the record shows neither the sufficiency of the inspections nor that they
would nsure that work was not conducted in dangerous areas. Thus, summary judgment
with re pect to Industrial Code 23-3.3(c) is denied.

CONCLUSION
For the foregoing reasons, Defendant's motion for summary judgment is
ORA

ED with respect to Plaintiff's Labor Law § 200 claims and Labor Law § 241 (6)
ased upon Industrial Code §§ 23-1.16, 23-1.17, 23-1.19, 23-1.22,23-1.3,23-2.5

and de ied with respect to all other claims. Plaintiff's motion for summary judgment is
DENI D. The Clerk of the Court is instructed close these motions and remove them from

Date: +-+----t:-'--=--­
New

HAROLD BAER, JR.
United States District Judge

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