Eberl et al v. FMC Corporation
Filing
56
DECISION AND ORDER DENYING 47 Motion for Summary Judgment of Third-Party Defendant John W. Danforth Co., Inc.; GRANTING in part and DENYING in part 48 Motion for Summary Judgment of Defendant FMC Corporation; GRANTING Plaintiffs' 49 Motion for Partial Summary Judgment. Signed by William M. Skretny, Chief Judge U.S.D.C. on 5/17/2012. (MEAL)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
GERARD EBERL and JEANNE EBERL,
Plaintiffs,
v.
DECISION AND ORDER
09-CV-703S
FMC CORPORATION,
Defendant,
__________________________________
FMC CORPORATION,
Third-Party Plaintiff,
v.
JOHN W. DANFORTH CO., INC.,
Third-Party Defendant.
I. INTRODUCTION
Plaintiffs commenced this action seeking damages for injuries sustained by Plaintiff
Gerard Eberl (“Plaintiff”1) while working at a chemical plant owned by Defendant/ThirdParty 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,2 seeking dismissal of Plaintiffs’ complaint, and of Third-Party
1
Plaintiff Jeanne Eberl’s claim is derivative.
2
In support of this m otion (Docket No. 48), FMC Corporation subm itted the Affirm ation of Francis
F. Quinn, Esq., with Exhibits A - I, a Statem ent of Undisputed Facts (Docket No. 48-12), and a supporting
Mem orandum of Law (Docket No. 48-13). Plaintiffs opposed the m otion with the Declaration of Catherine
M. Beltz, Esq., with Exhibits A-R (Docket No. 53), the Affidavit of Daryl J. Sm ith, P.E., with Exhibits A-C
1
Defendant John W. Danforth Co., Inc.,3 seeking dismissal of the third-party complaint.
Plaintiffs have also moved for Partial Summary Judgment4 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
(Docket No. 53-19), a Statem ent of Undisputed Facts (Docket No. 53-20), and an Opposing Mem orandum
of Law (Docket No. 53-21). FMC filed a Reply Mem orandum of Law (Docket No. 54).
3
In support of this m otion (Docket No. 47), Third-Party Defendant John W . Danforth subm itted the
Affidavit of Robert D. Leary, Esq., with Exhibits A-V, a supporting Mem orandum of Law (Docket No. 4725), and a Statem ent of Undisputed Facts (Docket No. 47-12). Third-Party Plaintiff FMC Corporation
opposed this m otion with an opposing Mem orandum of Law and Exhibits A-E (Docket No. 52), a
Statem ent of Undisputed Facts, and a Reply Statem ent of Undisputed Facts. Plaintiffs also responded
with the sam e opposing docum ents as subm itted in opposition to FMC’s m otion for sum m ary judgm ent
(Docket No. 53). Danforth filed reply Mem oranda of Law in response to both FMC’s and Plaintiffs’
subm issions, as well as reply Affidavits of Robert D. Leary, Esq. (Docket No. 55).
4
In support of their m otion, Plaintiffs subm itted the Declaration of Catherine Mary Beltz, Esq., with
Exhibits A-R (Docket Nos. 49, 50), a supporting Mem orandum of Law (Docket No. 49-2), and a Statem ent
of Undisputed Facts (Docket No. 49-3).
2
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
3
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
4
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, 322323, 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 nondelegable 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)
5
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 § 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 decision to jump from
bucket lift); see Cohen v. Mem. Sloan-Kettering Cacer Ctr., 11 N.Y.3d 823, 825 (N.Y.
6
2008)(no liability where injury results from “separate hazard wholly unrelated to the risk”
prompting need for safety device in first place). To put it another way, the risk of being
burned is not one that Labor Law § 240 is intended to guard against.
Contrary to the cases on which Plaintiffs rely, Plaintiff’s injuries resulted from a
hazard unrelated to an elevation risk, and not from a defective or improperly placed safety
device designed to protect against gravity related risks. Pl’s Opposing Mem of Law,
Docket No. 53-21, at 2-8; see e.g. see Kirbis v. LP Ciminelli, Inc., 90 A.D.3d 1581, 1582
(N.Y. App Div 4th Dept 2011)(improperly placed ladder buckled, twisted, and collapsed);
Vukovich v. 1345 Fee, LLC, 61 A.D.3d 533, 533-534 (N.Y. App Div 1st Dept
2009)(unsecured A frame insufficient to prevent plaintiff’s fall after being shocked);
Nimirovski v. Vornado Realty Trust Co., 29 A.D.3d 762, 762-763 (N.Y. App Div 2d Dept
2006)(scaffold insufficient protection where falling metal caused it to shake and pull away
from the wall, leading to plaintiff’s fall); Landgraff v. 1579 Bronx Riv. Ave., LLC, 18 A.D.3d
385, 386 (N.Y. App Div 1st Dep’t 2005)(scaffolding was too small and light, allowing it to
be flipped over when hit by swinging metal pipe). Because there is no allegation of defect
in or improper placement of the scissor lift, the gravity-related safety device at issue here,
there is no viable claim for a Labor Law § 240 violation.
B.
Labor Law § 241
Plaintiff alleges that FMC violated Labor Law § 241 (6), which requires contractors
and owners to ensure that “[a]ll areas in which construction, excavation or demolition work
is being performed [are] so constructed, shored, equipped, guarded, arranged, operated
and conducted as to provide reasonable and adequate protection and safety to the
persons employed therein or lawfully frequenting such places.” Like section 240, Labor
7
Law § 241 “imposes a nondelegable duty of reasonable care upon an owner or general
contractor to provide reasonable and adequate protection to workers on the premises,”
Venezia v. State of New York, 57 A.D.3d 522, 522 (N.Y. App Div 2d Dept 2008). An owner
or general contractor is therefore liable for damages “for injuries sustained due to another
party’s negligence in failing to conduct their construction, demolition or excavation
operations so as to provide for the reasonable and adequate protection of the persons
employed therein.” Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 350 (N.Y.
1998)(emphasis removed). “In order to establish liability under Labor Law § 241(6), a
claimant is required to establish a breach of a rule or regulation of the Industrial Code
which gives a specific, positive command.” Venezia, 57 A.D.3d at 522, citing Singleton v.
Citnalta Constr. Corp., 291 A.D.2d 393, 394 (N.Y.App Div 2d Dept 2002).
“Labor Law § 241(6) only provides protection ‘to persons employed in, or lawfully
frequenting, all areas in which construction, excavation or demolition work is being
performed’ ” Coyago v. Mapa Props., 73 A.D.3d 664, 664 (N.Y. App Div 1st Dept 2010),
lv denied 15 N.Y.3d 708 (N.Y. 2010), quoting Rizzuto, 91 N.Y.2d at 348. FMC and
Danforth dispute whether Plaintiff was engaged in demolition work at the time of his
accident. Pursuant to the New York Industrial Code, specifically 12 NYCRR 23-1.4 (b)(16),
demolition work is defined as “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 equipment” (emphasis added). Here, Danforth employees were
engaged in the dismantling and removal of a deaerator from the old boilerhouse and the
transfer of same into the new boilerhouse. Koch Dep at 32, 44, 47, 63-64; Vaugh Dep at
94; Quinn Aff. Ex. C. In order to accomplish this, Plaintiff was tasked with cutting the
8
steam line in the deaerator room of the old boilerhouse. Koch Dep at 63, 74-75; Plaintiff
Dep at 61. This is analogous to the removal and dismantling of a subway rail in order to
make way for a new track, which has been held to constitute ‘demolition’ pursuant to the
regulations. Medina v. City of New York, 87 A.D.3d 907, 909 (N.Y. App Div 2011); see
Wade v. Atlantic Cooling Tower Servs., Inc., 56 A.D.3d 547, 549 (N.Y. App Div 2d Dept
2008)(demolishing part of a sprinkler system attached to cooling tower constituted
demolition within the meaning of Labor Law § 241(6)).
Moreover, FMC does not dispute Plaintiff’s contention that the work at issue falls
within the regulatory definition found in New York’s Industrial Code, but instead argues that
the regulatory definition is overly broad when compared to the more narrowly tailored
language of the statute itself. Reply Mem of Law, Docket No. 54, at 5-6. This argument
is without merit. Other Labor Law provisions, including subsections one through five of
Labor Law § 241, are “self-executing in the sense that they may be implemented without
regard to external considerations such as rules and regulations.” Ross v. Curtis-Palmer
Hydro-Electric Co., 81 N.Y.2d 494, 503 (N.Y. 1993)(internal quotation marks omitted).
Labor Law § 241 (6), however, “require[s] reference to outside sources to determine the
standard by which a defendant’s conduct must be measured.” Id (internal quotation marks
omitted). Thus, “the definitions provided in the Industrial Code may be relied on to interpret
the statutory language.” DaBolt v. Bethlehem Steel Corp., 92 A.D.2d 70, 74 (N.Y. App Div
4th Dept 1983), appeal and lv dismissed 60 N.Y.2d 554, 701 (N.Y. 1983). The fact that the
regulatory definition gives a liberal interpretation to the phrase “constructing or demolishing
buildings” in Labor Law § 241 “is not at odds with the intent of the [New York] Legislature
to protect workmen engaged in hazardous occupations and is in keeping with the liberal
9
interpretation which has been afforded by the courts.” DaBolt, 92 A.D.2d at 74.
Further, 12 NYCRR 23-3.2 (a)(2) is sufficiently specific and applicable to the facts
of this case to support the claim under Labor Law § 241(6). See Ross, 81 N.Y.2d at 502;
Bald v. Westfield Academy, 298 A.D.2d 881, 882 (N.Y. App Div 4th Dept 2002). This
regulation requires that “[b]efore demolition is started, all . . . water[ and] steam . . . supply
lines shall be shut off and capped or otherwise sealed.” 12 NYCRR 23-3.2 (a)(2). It is
readily apparent that one of the hazards this regulation is intended to prevent is the
accidental scalding or burning of a worker during demolition of or near such an active line.
See generally Garcia v. 225 East 57th St. Owners, Inc., __ A.D.3d __, 2012 WL 1432388,
*3-4 (N.Y. App Div 1st Dept Apr 26, 2012). Inasmuch as it is undisputed that Plaintiff was
burned by hot condensate from the steam line, FMC has not established its entitlement to
summary judgment on Plaintiff’s Labor Law § 241 (6) claim.
The same conclusion cannot be reached with respect to the remaining Industrial
Code regulations cited by Plaintiff. See Quinn Aff Ex I at 16. Section 23-3.2 (a)(3) requires
that the water and steam lines themselves be protected from damage during demolition,
and as FMC argues, Plaintiff was tasked with cutting that line. See Garcia, 2012 WL
1432388 at *4 (regulation requiring loose objects be braced inapplicable where plaintiff was
injured by mirror he was tasked with dislodging). There is no violation of the requirement
to provide ample drains where FMC personnel admitted that there were possible ways of
draining the line.12 NYCRR 14-9.30; Vaughan Dep at 110-111, 130-131; see Deposition
of Gary Stahl, Leary Aff Ex S, at 166-167. Although Plaintiff was using an oxyacetylene
torch to cut the pipe, his accident was unrelated to welding, and therefore those regulations
are not factually applicable. See 12 NYCRR 14-3.6; 23-1.25. Further, Plaintiff himself
10
testified that waterproof clothing was not appropriate while welding, Plaintiff Dep. at 191192; see 12 NYCRR 23-1.8 (c)(3), and Plaintiffs do not dispute FMC’s assertion that
neither steam nor the resulting condensate constitutes a corrosive substance. See 12
NYCRR 23-1.7 (h); 23-1.8 (c)(4). Finally, the requirement in 12 NYCRR 4-7.4 that “[s]afety
controls . . . be properly adjusted and maintained” is too general a standard to constitute
the specific, positive command required by Labor Law § 241 (6). See Venezia, 57 A.D.3d
at 522.
C.
Labor Law § 200 and Common Law Negligence
“Section 200 of the Labor Law is a codification of the common-law duty of a
landowner to provide workers with a reasonably safe place to work.” Lombardi v. Stout, 80
N.Y.2d 290, 294 (N.Y. 1992). Liability for a violation of § 200 may be imposed in two
different situations: (1) where the owner created the dangerous condition that caused the
accident or had actual or constructive notice of that dangerous condition; or (2) where the
accident was the result of the manner in which the work was performed. Ortega v. Puccia,
57 A.D.3d 54, 61 (N.Y. App Div 2d Dept 2008); Bannister v. LPCiminelli, Inc., 93 A.D.3d
1294, 1294-1295 (N.Y. App. Div. 4th Dept 2012). With respect to this second situation,
“when a claim arises out of alleged defects or dangers in the methods or materials of the
work, recovery against the owner or general contractor cannot be had under Labor Law §
200 unless it is shown that the party to be charged had the authority to supervise or control
the performance of the work.” Ortega, 57 A.D.3d at 61; Selak v. Clover Mgmt., Inc., 83
A.D.3d 1585, 1587 (N.Y. App Div 4th Dept 2011). Plaintiffs argue that FMC’s liability is
found under the first scenario, asserting that this is a premises liability case, whereas FMC
argues that it cannot be held liable because Plaintiff’s accident resulted from the manner
11
in which the work was conducted by Danforth. Regardless of the theory applied, FMC is
not entitled to summary judgment on this claim.
Initially, FMC concedes that hot condensate was a common by-product in the steam
delivery system, FMC personnel controlled the shutdown of that system, and that FMC
personnel were aware that “shutting down the system did not instantaneously remove all
hazardous material from the system.” FMC Mem of Law at 6; FMC Reply Mem of Law at
7. Indeed, FMC’s written policies specifically recognize that “[t]he plant steam distribution
has the potential to be dangerous,” Beltz Decl Ex J, Docket No. 53-10, at 19 (FMC
Tonawanda Safety and Health Policies: Contractor Safety Orientation), and therefore
requires operators to “drain lines, as needed,” and “[r]elease potentially hazardous stored
or residual energy from the equipment.” Beltz Decl Ex K, Docket No. 53-11, at 4 (FMC
Tonawanda Safety and Health Policies and Procedures: Lockout/Tagout, §§ 3.2.3, 3.2.6).
Constructive notice of the dangerous condition is therefore admitted. See David v. New
York City Hous. Auth., 284 A.D.2d 169, 171 (N.Y. App Div 1st Dept 2001)(knowledge of
reoccurring dangerous condition places defendant on constructive notice of same). FMC
nonetheless argues that its personnel were only responsible for stopping the active flow
of steam by shutting the valves, and they “were neither intended nor expected to drain the
pipes” as part of the lock-out procedure.
FMC Reply Mem of Law at 7. This assertion
that Danforth employees were in charge of the manner and method in which the steam line
was to be further deenergized is belied by the record. FMC policy states that lockout
procedures must be conducted by FMC employees absent express consent to the
contrary. See Beltz Decl Ex J, Docket No. 53-10, at 14. FMC personnel, including the plant
manager, safety coordinator, and the operator assigned to lockout the steam line on the
12
day of Plaintiff’s accident, testified that draining a line of residual thermal energy such as
steam or condensate was a necessary step in the lockout procedure. Deposition of Michael
Chaney, Beltz Decl Ex L, at 161; Deposition of Dominic Montante, Beltz Decl Ex M, Leary
Aff Ex O, at 10, 30, 41-44, 81; Brigante Dep at 61, 72; see also Deposition of Rene
Alvarez, Beltz Decl Ex N, at 69-70. Further, Vaughan specifically testified that FMC
operators were conducting the lockout of the steam lines on the day of the accident, and
that he “would not have had [Danforth employees] responsible for any type of
deenergization.” Vaughan Dep. 28-29, 133, 170.
FMC safety coordinator Dominic
Montante similarly stated that contractors were not to touch FMC equipment. Montante
Dep at 10, 145. Finally, FMC itself submitted a copy of the report of Plaintiffs’ expert
engineer, who concluded, among other things, that “FMC was responsible for removing the
hazard of the residual thermal energy from the line prior to directing Danforth to proceed
with the line breaking work, but they failed to do so.” Quinn Aff Ex D at 25 (Engineer’s
Report of Daryl J. Smith, P.E.); see Leary Aff Ex D; Affidavit of Daryl J. Smith, P.E., Docket
No. 53-19, at 3.
Deposition testimony also supports the conclusion that Danforth employees were
relying on FMC personnel to appropriately lockout the steam line. Plaintiff, Koch, and
Piskorz each testified that he understood Vaughan’s assertion that the line was “all set”
and “ready to go” to mean the line had been drained of residual energy. Plaintiff Dep at
65, 92-93, 234; Koch Dep at 168-169; Piskorz Dep at 62-63, 78. Plaintiff stopped working
each time he encountered water, and it is undisputed that Vaughan assigned an FMC
employee to do another check of the line. Plaintiff Dep at 71, 89-92; Vaughan Dep at 184185; Piskorz Dep at 120, 125-126. Vaughan also admitted that there were possible points
13
at which the steam line could have been ‘broken’ or that a strainer could have been
adapted by FMC personnel to allow drainage. Vaughan Dep at 110-111, 130-131; Stahl
Dep at 166-167. Further, plant manager Michael Chaney testified that “a lot of our
equipment in Tonawanda is specifically designed to be drained,” however, when
questioned about compliance with FMC’s policy for operators to drain lines of residual
energy, Chaney answered “I don’t believe the operator took that step.” Chaney Dep at
158, 168-170. Chaney further conceded that “the lines were not drained.” Chaney Dep at
208. FMC is therefore not entitled to summary judgment on Plaintiffs’ Labor Law §
200/common law negligence claim.
D.
Contractual Indemnity5
Danforth argues that it is entitled to summary judgment dismissing the third-party
complaint against it because the indemnity provision in its contractor agreement with FMC
is void pursuant to New York General Obligations Law § 5-322.1.6 Danforth Mem of Law,
5
FMC has not asserted a claim for com m on-law indem nity, and confirm s as m uch in its Opposing
Mem orandum of Law, therefore this Court will consider only the argum ents regarding contractual
indem nity.
6
General Obligations Law § 5-322.1 (1) states:
A covenant, prom ise, agreem ent or understanding in, or in connection
with or collateral to a contract or agreem ent relative to the construction,
alteration, repair or m aintenance of a building, structure, appurtenances
and appliances including m oving, dem olition and excavating connected
therewith, purporting to indem nify or hold harm less the prom isee against
liability for dam age arising out of bodily injury to persons or dam age to
property contributed to, caused by or resulting from the negligence of the
prom isee, his agents or em ployees, or indem nitee, whether such
negligence be in whole or in part, is against public policy and is void and
unenforceable; provided that this section shall not affect the validity of
any insurance contract, workers' com pensation agreem ent or other
agreem ent issued by an adm itted insurer. This subdivision shall not
preclude a prom isee requiring indem nification for dam ages arising out of
bodily injury to persons or dam age to property caused by or resulting
from the negligence of a party other than the prom isee, whether or not
the prom isor is partially negligent.
14
Docket No. 47-25, 10-14; see Leary Aff. Ex V (Purchase Order and Supplemental Terms).
“General Obligations Law § 5–322.1 was enacted to void indemnification agreements [in
construction, alteration, repair or maintenance contracts] that seek to exempt the
indemnitee from liability based on negligence, irrespective of whether that negligence is
wholly or only partially the cause of the injury.” Cavanaugh v. 4518 Assocs., 9 A.D.3d 14,
20 (N.Y. App Div 1st Dept 2004).
In the instant case, two contractual provisions speak to indemnification. Paragraph
23 of the relevant Purchase Order states that Danforth, as the Seller, “agrees to defend,
indemnify and save the buyer [FMC] harmless against all liabilities, claims or demands
whether in tort or in contract for injuries or damages to any person or property arising out
of Seller[‘s] act[s] or omissions in the performance of this contract.” Section 27 of the
Supplemental Terms and Conditions further provide that:
CONTRACTOR shall indemnify and save harmless FMC, its officers,
directors, employees and agents from and against any and all claims,
liabilities, obligations, suits and causes of action entered, suffered or
incurred, arising directly or indirectly out of or in connection with the injury to
or death of any and all persons . . . resulting or claimed to have resulted,
directly or indirectly, from or in connection with any and all accidents,
occurrences, happenings or conditions arising out of the performance of the
work under this Agreement by the CONTRACTOR or any
SUBCONTRACTOR and their respective employees (except that
CONTRACTOR shall not be held responsible for any claims attributable to
the sole negligence of FMC, its officers, directors, employees or agents) and
CONTRACTOR, at CONTRACTOR’s expense, shall defend FMC, its
officers, directors, employees and agents against any and all claims, suits
and causes of action and shall pay all damages, costs and expenses
including attorneys’ fees, in connection with any matter or thing which the
CONTRACTOR by the provisions of this Article is required to indemnify and
save FMC harmless.
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Leary Aff. Ex V.
Notably, because it is specifically stated in the Supplemental Terms that the
conditions therein “shall control in the event that there is any inconsistency between them
and the proposal, quotation, and/or the Terms and Conditions on the reverse side of any
attached Purchase Order,” this more specific provision will be considered first. Leary Aff,
Ex V (§ 1). As written, the indemnification clause in the Supplemental Terms requires
Danforth to indemnify FMC for all claims arising out of the work, with the only exception
being for claims arising from the sole negligence of FMC. Thus, this provision requires
Danforth to indemnify FMC even for injuries that FMC contributed to, caused, or that
resulted from the partial negligence of FMC in violation of General Obligations Law §
5–322.1 (1).
The New York Court of Appeals has already rejected the argument that General
Obligations Law § 5-322.1 should be read to “merely bar[] enforcement of the contract
claims to the extent that they would require indemnification for that portion of the awards
attributable to the negligence of the [proposed indemnitee].” Itri Brick & Concrete Corp. v.
Aetna Cas. & Sur. Co., 89 N.Y.2d 786, 795 (N.Y. 1997). Instead, to prevent an otherwise
improper indemnity clause from being rendered void by operation of § 5-322.1, there must
be some “language limiting the subcontractor’s obligation to that permitted by law or to the
subcontractor’s negligence.” Itri Brick & Concrete Corp., 89 N.Y.2d at 795. Although this
Court agrees with FMC that an indemnification provision need not specifically use the
phrase ‘to the fullest extent permitted by law” in order to be enforceable in a case of partial
indemnification, no limiting language appears in the Supplemental Terms indemnification
clause. See generally Brooks v. Judlau Contr., Inc., 11 N.Y.3d 204, 210-211 (N.Y.
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2008)(holding that inclusion of the phrase ‘to the fullest extent permitted by law” limits a
promisor’s obligation and contemplates partial indemnification). Further, as discussed
above, FMC personnel was responsible for the lockout of the steam delivery system, thus
any negligence in the performance of that lockout is attributable to FMC. Cf. Lesisz v.
Salvation Army, 40 A.D.3d 1050, 1051 (N.Y. App Div 2d Dept 2007)(an indemnification
provision prohibited by § 5-322.1 may nonetheless be enforced if the indemnitee is free
from any negligence). Therefore the indemnification provision found in the Supplemental
Terms and incorporated by reference into the Purchase Order is unenforceable pursuant
to General Obligations Law § 5-322.1.
Because the indemnification provision in the Supplemental Terms is void, however,
there is no longer any conflict with the more limited indemnification clause included in the
Purchase Order. This clause requires Danforth to indemnify FMC for only those claims
arising from Danforth’s acts or omissions in performing the contract. Leary Aff, Ex V.
Thus, it does not purport to indemnify FMC for its own negligence and remains viable. See
Ostuni v. Town of Inlet, 64 A.D.3d 854, 855 (N.Y. App Div 3d Dept 2009). Because
Danforth does not further argue that it is entitled to summary judgment on the third party
complaint because it is free from any negligence, FMC’s claim for contractual indemnity
remains viable.
E.
Assumption of the Risk
Plaintiffs cross-moved for partial summary judgment dismissing any defense based
upon Plaintiff’s assumption of the risk. Docket No. 49. Defendants have not opposed this
motion, either in responding papers or within the arguments in support of their own
respective motions.
In any event, Plaintiffs’ argument has merit. The doctrine of
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assumption of the risk, either express or implied, requires a knowing and voluntary
acceptance of a risk by a plaintiff, and is therefore inapplicable where, as here, an
employee is directed to perform a task. Gleason v. Holman Contract Warehousing Inc.,
263 A.D.2d 913, 915 (N.Y. App Div 3d Dept 1999). see also Lorefice v. Reckson
Operating Partnership, L.P., 269 A.D.2d 572, 573 (N.Y. App Div 2d Dept 2000)(doctrine
of primary assumption is inapplicable to a Labor Law § 241 (6) claim). Notably, “implied
assumption of risk and contributory negligence are distinct legal theories,” and as Plaintiffs
concede, FMC is not precluded from presenting evidence that Plaintiff himself was
negligent. McCabe v. Easter, 128 A.D.2d 257, 258-259 (N.Y. App Div 3d Dept 1999); see
Lorefice, 269 A.D.2d at 573.
IV. CONCLUSION
Dismissal of Plaintiffs’ Labor Law § 240 cause of action is warranted, and therefore
FMC’s motion for summary judgment is granted to that extent and otherwise denied.
Danforth’s motion for summary judgment dismissing the third party complaint is denied in
its entirety. Finally, because the doctrine of assumption of the risk is inapplicable to this
work-related accident, Plaintiffs’ motion for partial summary judgment dismissing those
affirmative defenses is granted.
V. ORDERS
IT HEREBY IS ORDERED that the Motion for Summary Judgment of Third-Party
Defendant John W. Danforth Co., Inc. (Docket No. 47) is DENIED;
FURTHER, the Motion for Summary Judgment of Defendant FMC Corporation
(Docket No. 48) is GRANTED IN PART and DENIED IN PART;
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FURTHER, Plaintiffs’ Motion for Partial Summary Judgment (Docket No. 49) is
GRANTED;
SO ORDERED.
Dated: May 17, 2012
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Judge
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