Cappabianca v. Skanska USA Building Inc.

Catterson, J.

(dissenting in part). I must respectfully dissent to the extent that I would reinstate the plaintiffs Labor Law § 200 and common-law negligence claims against all of the defendants, except Safety, insofar as they are based on a dangerous premises condition, and there is an issue of fact as to whether the defendant owner and/or general contractor had actual or constructive notice of the condition. The plaintiffs uncontroverted testimony, as set forth more fully below, establishes that he was injured because he fell off a pallet when it “turned” in water and “muck” which had been allowed to accumulate over a period of weeks on the concrete floor of the *149construction site where the plaintiff was working. Moreover, the majority incorrectly posits that the accumulation of water and debris on the floor resulted “only” from the plaintiffs leaking wet-saw tray, and that “there is no evidence that the water, which accumulated directly around the saw, had any other source.” However, the deposition testimony of a nonparty’s safety specialist, set out infra, indicates that water also accumulated on every floor of the construction site after rain. In any event, as set forth more fully below, the majority’s holding ignores long-settled precedent espousing basic common-law principles that establish that at some point over time the “means and methods,” or the manner in which work is performed by a subcontractor over whom an owner or general contractor has no supervisory control may result in a dangerous premises condition implicating the owner or general contractor. (See Employers Mut. Liab. Ins. Co. of Wis. v Di Cesare & Monaco Concrete Constr. Corp., 9 AD2d 379, 383 [1959]; Wohlfron v Brooklyn Edison Co., Inc., 238 App Div 463 [2d Dept 1933], affd 263 NY 547 [1933].)

The relevant portion of Labor Law § 200 states as follows:

“All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein . . . All machinery, equipment and devices in such places shall be so placed, operated, guarded and lighted as to provide reasonable and adequate protection to all such persons” (emphasis added).

It is well established that Labor Law § 200 is a codification of the common-law duty imposed on an owner or general contractor to maintain a safe construction site. (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998].) In other words, a claim arising pursuant to the provision is “tantamount to a common-law negligence claim in a workplace context.” (Mendoza v Highpoint Assoc., IX, LLC, 83 AD3d 1, 9 [1st Dept 2011].)

The plain language of the statute indicates there are two distinct prongs or categories to the provision: one pertains to the work premises and the requirement that they be maintained in a safe condition; the second pertains to work performance and the requirement of using material and tools in a safe manner and providing equipment and tools which are safe to use. The latter category is that part of the common-law duty to *150maintain a safe work site which was extended by statute to “include the tools and appliances without which the place to work would be incomplete.” (Hess v Bernheimer & Schwartz Pilsener Brewing Co., 219 NY 415, 418 [1916].) Over time, this category has been characterized as “means and methods” or “tools and methods” (see Persichilli v Triborough Bridge & Tunnel Auth., 16 NY2d 136, 145 [1965]), or “methods or materials.” (Ortega v Puccia, 57 AD3d 54, 61 [2d Dept 2008] [where claims arise out of alleged defects and dangers in the “methods or materials of the work”].)

It is generally accepted that claims fall within one of the two categories. (Persichilli, 16 NY2d at 146 [defective scaffold was a device involving methods and means of work supervised by subcontractor; not breach of duty to provide safe place to work]; Ortega, 57 AD3d at 61 [two categories “should be viewed in the disjunctive”].)

Unlike Labor Law §§ 240 and 241 where absolute liability attaches to an owner or general contractor, a plaintiff seeking recovery under section 200 must satisfy the liability standards of common-law negligence. In other words, where the plaintiffs injuries arise out of a dangerous premises condition, the plaintiff must show that the owner or general contractor either created the condition, or had actual or constructive notice of it sufficient for corrective action to be taken. (See Mitchell v New York Univ., 12 AD3d 200 [1st Dept 2004], citing Gordon v American Museum of Natural History, 67 NY2d 836 [1986].) Where a plaintiffs injuries arise because of an alleged defect or danger in the methods or material of the work, recovery against an owner or general contractor cannot be had “unless it is shown that the party to be charged exercised some supervisory control” over the methods of work or materials supplied. (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 [1993].)1 The starting point of any analysis of Labor Law § 200 claims therefore should be to ascertain what caused the plaintiffs injury: whether it was caused by a dangerous premises condition, or *151whether the plaintiff was injured because of the manner in which the work was being performed, or as a result of defective tools and equipment.

Therefore, for the purposes of apportioning liability, determination that a plaintiffs injury arises from “means and methods” or “manner in which work was performed” does not end the inquiry. The additional question to be answered is who had supervisory control because an owner or general contractor is not obliged to protect the employees of his subcontractors against the negligence of another “occurring as a detail of the work.” (Comes v New York State Elec. & Gas Corp., 82 NY2d 876 [1993] [plaintiff’s injury while lifting a steel beam was caused by the manner in which the plaintiff lifted the beam unassisted at direction of his employer]; Wright v Belt Assoc., 14 NY2d 129, 134 [1964] [negligent act of subcontractor occurring as “detail of the work”]; Zucchelli v City Constr. Co., 4 NY2d 52, 55 [1958] [place of accident was part of subcontractor’s “work in progress” when floor of building under construction collapsed because of his negligent removal of shoring a few days before]; Hess, 219 NY at 418-419 [place owner must make safe does not include subcontractor’s plant, equipment or “the very work” he is doing].) Thus, the duty of the owner or general contractor to provide a safe place to work is not breached when the injury arises out of a defect in the subcontractor’s own plant, tools, methods or through the negligent acts of another occurring as a detail of the work. (Ortega v Puccia, 57 AD3d 54 [2d Dept 2008], supra.)

This is an “outgrowth of the basic common-law principle that an owner or general contractor [shjould not be held responsible for the negligent acts of others over whom [the owner or general contractor] ha[s] no direction or control.” (Ross, 81 NY2d at 505 [internal quotation marks omitted].)

Nevertheless, long-settled precedent establishes that at some point over time the “negligent acts of others” may become a dangerous premises condition implicating the owner or general contractor. (Di Cesare, 9 AD2d at 383 [“(t)he duty of providing a safe place to work is a twofold duty . . . The premises are made safe by the discovery of dangers ascertainable through reasonable diligence and remedying them . . . They are kept safe by forbearance from creating new conditions of danger”].)

In circumstances where the negligent act or manner in which work was performed under another’s supervision results in a condition which “exist[s] for such a length of time that the *152[owner] as a question of fact was bound to have knowledge of [its] presence . . . [and] being for a long time completed, [it] must be held to be within the control of the owner.” (Wohlfron, 238 App Div at 466.) Alternatively, where a negligent act or manner in which work is performed by another impacts the “commonly used portions of the work premises” (Cangiano v Charles Lo Bosco & Son, Inc., 23 AD2d 860 [1965]), or the “ways and approaches to the worksite,” an owner/general contractor has the duty of making it safe. (Di Cesare, 9 AD2d at 385; see also Caspersen v La Sala Bros., 253 NY 491 [1930, Cardozo, Ch. J.].)

In Caspersen, the Court decided an owner’s liability based on the following facts: The plaintiff was injured while installing an elevator on the ground floor; the elevator was next to a stairway shaft above the plaintiff and not visible to the plaintiff. Further up the shaft, masons were using tiles and bricks and one of the bricks fell down the shaft striking the plaintiff on the head. The Court held, “The defendant is not chargeable with the negligence of the masons[ working for a subcontractor] [but] [i]t is chargeable with its own negligence in failing to guard the ways against perils unknown to the worker.” (253 NY at 494-495 [emphasis added].) The Court determined that the owner was liable because at common law it was his duty to use reasonable care in maintaining the approaches to the elevator (plaintiff’s worksite) in a condition of reasonable safety. (Id., citing Mortensen v Magoba Constr. Co., 248 NY 577 [1928] [defendant general contractor liable for the plaintiff worker’s injury when concrete floor newly installed by a subcontractor and on which bags of cement were placed collapsed while the plaintiff was walking across it].)

The determination by the Wohlfron court is particularly instructive: in that case, the plaintiff was injured while proceeding along a concrete slab “to the place where his work was to be performed.” (238 App Div at 464.) However, a subcontractor had bored holes on the outside of the slab. The holes were left unguarded and were not visible to the plaintiff, and nothing warned him of their presence. The plaintiff stepped into one of them and fell 26 feet. The court held that the “duty rests on the owner or general contractor to . . . see to it that the workmen have reasonable protection against the consequences of hidden dangers known to the owner or general contractor, or which ought to have been known by him.” (238 App Div at 465.) The court added: “This obligation is clearly distinguishable from *153that arising through negligent acts of a subcontractor occurring as a detail of the work.” (Id. at 466.) It is interesting to note that the time which elapsed between the subcontractor boring the holes and the plaintiff falling into one, was just two weeks.

Further, this Court relying on Caspersen, held in Bass v Standard Brands (65 AD2d 689 [1978]), that an owner was liable for a dangerous premises condition even though the plaintiff was injured by a lid falling on him as he was removing the agitator shaft inside the tank covered by the lid. Nevertheless, based on evidence that as a result of long disuse the lid had become unsafe and had sunk in upon the agitator shaft, this Court found that the lid fell on the plaintiff and injured him because of a dangerous premises condition, rather than because of the manner in which the plaintiff performed the work.

The majority observes that none of these cases involves a dangerous premises condition arising directly out of manner and means of a plaintiffs work. The majority, in my opinion, misses the point. While not arising from the plaintiffs manner of work, the dangerous premises conditions in three of the four cases that caused the plaintiffs’ injuries nevertheless arose from the negligent acts or the manner in which work was performed by others over which the owner had no supervision. However, in each case the court determined that such “manner of work” had become a dangerous premises condition either through the passage of time, or because it affected an area which an owner always has a duty to keep safe.

In this case, in my opinion, the record supports the view that the plaintiff was injured as a result of a dangerous premises condition: namely the 10-foot swath of water and debris which accumulated over a period of many weeks in the area where he was working. Moreover, even if “means and methods” namely the plaintiffs use of a leaking wet-saw tray contributed to the water accumulation, the accumulation of water and debris was allowed to stand for a sufficiently long time for it to become a dangerous premises condition which the defendants owner and general contractor were obliged to remedy. The plaintiff was cutting bricks with a wet-saw. The saw sat on a wooden pallet raised 8 to 10 inches above a concrete floor. The pallet’s slats were about six inches apart. The plaintiff stood on an adjoining pallet to operate the saw, which sprays water onto the bricks while they are being cut.

The plaintiffs undisputed testimony is that there was an accumulation of water and “muck” (debris) under the pallet. The *154plaintiff also testified that some of the water came from his wet-saw, which leaked because it had a defective tray. He further testified that he was injured after he turned to place a brick on an adjoining pallet, and that, as he was turning, the pallet moved, his foot slipped between the slats, and he fell onto the concrete floor. The plaintiffs testimony in relevant part was as follows:2

“Q: Why did [standing on the pallet] concern you?
“A: Because the surface that I had to stand on was not connected to anything
“Q: How was th[at] fact . . . connected . . . [to] your job safety?
“A: Because of the water problem
“Q: How did those two problems then in conjunction affect your safety?
“A: It caused the skid to turn on me while I was standing on it.
“Q: . . . [W]hat would cause the skid to turn . . . ?
“A: Accumulation of water.”

Later, the plaintiff testified as follows:

“Q: I understand your foot was caught in the slats, is it your testimony that’s what caused you to fall?
“A: No.
“Q: What caused you to fall?
“A: The motion of turning; the skid turned when I turned. . . .
“Q: Do you know whether or not the water played any role in the way that the skid moved?
“A: Yes.
“Q: How do you know that?
“A: It was under the skid. . . .
“Q: Did your foot become trapped before the skid moved or after the skid moved?
*155“A: At the same time.
“Q: So my question then is, did the skid move because of the motion of your foot while it was in the hole of the skid or before it became [sic] in the hole of the skid? Do you understand my question?
“A: Yes. Before.”

Based on the foregoing excerpts from the plaintiffs testimony, the plaintiff was injured because he fell, and he fell for no other reason than because the pallet moved/turned in the accumulated water underneath. In other words, the import of the plaintiffs uncontroverted testimony was that his injury was not directly caused by the manner in which he performed his work, nor as a result of the methods and materials used to perform the task. He was not injured by the spraying water from the malfunctioning tray, or because the pallet was defective. He was injured because he fell, and he fell only because the pallet moved and he missed his footing and the pallet moved only because there was an accumulation of water and debris under the pallet that existed over a long period of time. Had water not accumulated under the skid causing it to turn, he could have continued performing his work with a leaking wet-saw tray standing on a pallet with slats without falling.

In my opinion, the majority’s view that all the contributing causes of the plaintiffs injury resulted from the work done by the plaintiff, even if it was an accurate representation of facts in the record, does not alter the fact, as stated unequivocally by the plaintiff, that it was the accumulation of water and debris that precipitated the plaintiffs accident. However, the majority misreads the facts of record.

First, it is not clear that all the water on the floor came from the defective wet-saw; Fabian Garzón, the safety specialist employed by nonparty Safety testified that during an inspection, he witnessed “laborers were sweeping water from the rain on every floor.” Thus, the record contains unrebutted evidence that any rainstorm would cause water to pool on the floors of the open construction site. Nor was the plaintiff able to testify that the water on the floor was caused only by leaking from the wet-saw tray. Second, the majority’s claim that the “arrangement of the saw and the pallets [was a] ‘construction standard’ ” is wholly incorrect and based on a misreading of the record. Paul Deremer, Skanska’s safety manager referred to a construction standard in testifying about the construction of the pallet *156itself and the gapped surface of the pallet; he also used the word “standard” in testifying about the custom of moving cut bricks on a pallet by forklift. He did not testify that the “arrangement of the saw and the pallets” was the custom of the industry. Indeed, the arrangement was unusual enough for the plaintiff to testify that he repeatedly complained about the wet-saw and its stand being positioned on a pallet. Finally, while the plaintiff did not testify that he was provided with the pallet because of the accumulated water, his testimony nevertheless points to such a conclusion: There is no reason given in the testimony for providing the plaintiff with a pallet raised 8 to 10 inches off the ground in order for him to operate a wet-saw which is also placed on a pallet. The majority’s observation that the plaintiff stood on the pallet because the wet-saw was on an adjoining pallet begs the question, of course, of why the saw and its stand were positioned on the pallet.

In any event, the relevant facts here are that water was allowed to accumulate along with other debris and muck over a period of weeks to create a dangerous premises condition. The plaintiff’s testimony was that he had complained several times over a period of several weeks about the dangerous condition of water and “muck” accumulating on the floor until it was an inch deep and 10 feet wide on the floor. The plaintiff testified unequivocally that “[they] could have provided a safer workplace in terms of - first thing would be the floor, always having you know, collections of water, and it was very slippery.”

Ultimately, in my opinion, the majority resorts to precedent of questionable value so that based on the foregoing facts it may still reach a conclusion that the plaintiffs injury was caused by “means and methods” rather than a dangerous premises condition implicating the owner and general contractor. In Dalanna v City of New York (308 AD2d 400 [2003]), the Court held that a dangerous premises condition (a protruding bolt in the work area) did not constitute an unsafe place to work for purposes of Labor Law § 200 where the dangerous condition (the protruding bolt) resulted from the manner in which the plaintiffs employer performed its work in an unrelated activity months prior to the injury-producing activity engaged in by the plaintiff.

The decision in Dalanna does not comport with the body of case law pertaining to Labor Law § 200. First, it should be noted that in any Labor Law § 200 and common-law negligence claim where a plaintiff’s injury allegedly results from “means and methods” or the manner in which the work is performed, the *157injury results from the manner in which the plaintiff performs the task, or the means and methods or tools used by the plaintiff during the injury-producing activity or by his employer/ subcontractor’s negligent acts occurring as a detail of the work. (See Comes, 82 NY2d at 877; Ferrero v Best Modular Homes, Inc., 33 AD3d 847 [2006], lv dismissed 8 NY3d 841 [2007] [plaintiff’s injury occurred during tree removal as a result of the plaintiff performing the task in an unsafe manner by operating a chainsaw while standing at the top of a 20-foot ladder].)

Where a plaintiffs injury occurs as a result of his employer’s or a subcontractor’s negligent act, that act must occur as a “detail of the work” in which the plaintiff is engaged more or less contemporaneously. The precedent on which Dalanna purports to rely Wright) does not stand for the proposition that the negligent act of a plaintiffs employer or subcontractor may take place months prior to the plaintiffs injury.

In Wright, the negligent act of the plaintiffs employer in not shoring up the cheeks of a foundation was a “detail of the work” in which the plaintiff was engaged in uncovering a drainpipe for the construction of a cesspool. It therefore impinged on the “very work” that the plaintiff was doing. (14 NY2d at 134.) Although the majority reconfigures the timeline of events in Dalanna, in fact, the negligent act of the plaintiffs employer in leaving a protruding bolt was performed months prior to the accident when the plaintiff tripped over the bolt. Thus, under basic common-law principles, the bolt was sufficiently “long-established” for the condition to be in the “control” of the owner. (See Wohlfron, 238 App Div at 466.) Hence, to the extent that Dalanna holds that the owner/general contractor in that case were not liable even if they had constructive notice of the protruding bolt, it essentially stands common-law negligence principles on their head.

It should be noted that the holding has been cited just once for the proposition that an unsafe premises condition created by a plaintiffs employer renders the plaintiffs Labor Law § 200 claim to be a claim based on the manner in which the employer’s work was performed. (See McCormick v 257 W. Genesee, LLC, 78 AD3d 1581 [2010].) Incomprehensibly, the majority relies on McCormick to establish Dalanna as controlling precedent.

Finally, while the majority tacitly acknowledges that a dangerous premises condition existed, its view that the plaintiff’s means and methods were “contributing causes of the accident” should not preclude a finding that the defendant owner and *158general subcontractor were liable if they had actual or constructive notice of the accumulation of water and debris. (See Seaman v A.B. Chance Co., 197 AD2d 612 [2d Dept 1993], appeal dismissed 83 NY2d 847 [1994] [manner in which work of cutting down a tree was performed by the plaintiff standing on uninsulated platform provided by his employer contributed to electrocution of the plaintiff when he hit a live electric transmission line running through a tree on land owned by the Town of Babylon; because Babylon had actual notice of the live power line in the tree it had slated for removal, it had notice of the dangerous condition and was therefore liable].) Similar to the circumstances of this case, it would not have mattered for the plaintiff to stand on an uninsulated platform, if there was no live power line running through the tree.

Friedman and Renwick, JJ., concur with Freedman, JJ.; Mazzarelli, J.E, and Catterson, J, dissent in a separate opinion by Catterson, J.

Judgment, Supreme Court, New York County, entered June 25, 2010, dismissing the complaint and all cross claims, and bringing up for review an order, same court and Justice, entered May 10, 2010, which granted defendants’ motions for summary judgment dismissing the complaint and cross claims, and denied plaintiffs cross motion for partial summary judgment as to liability, modified, on the law, the judgment vacated as to the City defendants and Skanska, the motion of the City defendants and Skanska for summary judgment denied as to the Labor Law § 241 (6) claim insofar as it is based on 12 NYCRR 23-1.7 (d) and 23-9.2 (a), and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered May 10, 2010, dismissed, without costs, as subsumed in the appeal from the judgment.

. Although not an issue here, it should be noted that the Court of Appeals has rejected the idea of any sort of crossover between liability standards such as liability attaching when an owner or general contractor has “notice of the unsafe manner in which the work [is being] performed.” (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 878 [1993].) Conversely, liability under Labor Law § 200 may be predicated solely on notice of a dangerous condition without any proof of supervision over the work involved. (Shipkoski v Watch Case Factory Assoc., 292 AD2d 589, 590 [2d Dept 2002]; see also Kerins v Vassar Coll., 15 AD3d 623, 625 [2d Dept 2005].)

. In the testimony the pallet is sometimes referred to as a skid.