Aworker engaged in clearing broken-up concrete as part of a roadway demolition project cannot claim Industrial Code violations as a result of tripping on the very debris she was engaged in clearing, because the condition was an inherent part of her work. Plaintiff Jennifer Mosca claimed she sustained personal injuries caused by defendant Triborough Bridge and Tunnel Authori-ty’s violation of various Industrial Code provisions (Labor Law § 241 [6]) and TBTA’s negligence (common law negligence and Labor Law § 200).
Mosca was a journeyman employed by Grace. She was injured while working on a construction project at the Triborough Bridge, now known as the RFK Bridge. The TBTA is the owner of the bridge and the joint venture was TBTA’s contractor on this project. The TBTA moved for summary judgment. Grace and El Sol joined in TBTA’s motion. All defendants maintained that there were no violations of the Industrial Code regulations and the TBTA was not negligent. They argued that even assuming Mosca could prove all her facts, she was still injured while in the process of clearing the very condition she was instructed to clear, to wit: a pile of concrete rubble that she had mounded up so it could be hauled away. They claim that there is no liability under such circumstances. The defendants further deny that the TBTA was negligent, because it was Mosca’s foreman who instructed her on how to do her job, and TBTA did not supervise her work, create the dangerous condition or have notice of it.
On June 3, 2004, the day of the accident, Mosca was employed by Grace as a journeyman. Grace had a contract with TBTA to do roadway repair on the Triborough bridge. The project entailed (among other things) the resurfacing of the toll lanes. This resurfacing required that Grace employees, known as drill runners, jack hammer the concrete surface of these lanes. The broken up concrete they created then had to be cleared away by other employees of Grace. Mosca was one of the employees assigned to do that job.
Mosca testified at her deposition that her foreman, Kevin Quattrock, instructed her to gather up the broken concrete in Lane 13. Quattrock is also a Grace employee. According to Mosca, she was instructed to use a shovel and her hands to gather up all the debris so a pay loader could haul it away. Her employer provided her with the shovel and gloves. As the concrete surface was jack hammered, the underlying steel reinforcement rods installed in the concrete (also known as rebar”) were exposed. According to plaintiff, this left a checker board like appearance to the ground where she was working. Sometimes she stepped on the rebar to get around. At other times she would step up on the piles of concrete she was making. Some piles were shallow, reaching only her ankle, but she made some other piles that were taller, reaching a height of 18 to 24 inches tall. Mosca was standing midway in one of the piles, approximately 9 - 12 inches off the ground, and in the process of lifting her shovel with pieces of concrete in it, when she felt the pile shift. When the pile shifted, she lost her balance, her legs buckled from under her and she fell down. The driver of one of the dump trucks who witnessed the accident picked the plaintiff up and carried her away. This driver was also employed by Grace.
Defendants contended that Industrial Code regulations 12 NYCRR 23-3.3 (c), 12 NYCRR 23- 3.3 (l), and 12 NYCRR 23-4.1 (a) and other sections relied upon by plaintiff do not apply to the facts of this case because they set forth safety standards for structures like buildings, walls and foundations that have to braced or shored against collapsing, buckling or toppling over. They contended plaintiff was not working on a structure within the meaning of these safety regulations. 12 NYCRR 23-3.3 and its subparts pertain to areas where hand demolition is taking place. The sections plaintiff relies upon and other relevant sections provide as follows: Section 23-3.3. Demolition By Hand (a) Application. The provisions of this section shall not apply to mechanical means of demolition.
(b) Demolition of walls and partitions.
(1) The demolition of walls and partitions shall proceed in a systematic manner and all demolition work above each tier of floor beams shall be completed before any demolition work is performed on the supports of such floor beams.
(c) Inspection. During hand demolition operations, continuing inspec- tions 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.
(l) Safe footing required. Any person working above the first floor or ground level in the demolition of any building or other structure shall not be suffered or permitted to use accumulated debris or piled materials as a footing in the performance of his work. Every person shall be provided with safe footing consisting of sound flooring, planking not less than two inches thick full size, adequately supported exterior grade plywood at least three-quarters inch thick or other material of equivalent strength.“
12 NYCRR 23-4.1 and its subparts apply to evacuation operations. This regulation provides as follows:
Section 23-4.1. General Requirements
(a) Stability of structures. Except in hard rock, whenever any excavation is to be performed in the vicinity of buildings, structures or utilities, the integrity, stability and structural adequacy of such buildings, structures or utilities shall be maintained at all times by the use of underpinning, sheet piling, bracing or other equivalent means to prevent damage to or failure of foundations, walls, supports or utility facilities and to prevent injury to any person. Such underpinning, sheet piling, bracing or equivalent means shall be inspected at least once each day or more often if conditions warrant. Every such inspection shall be conducted by an experienced, designated person.
Defendants argued that although 12 NYCRR 23-3.3 applies to demolition by hand, Mosca was not herself engaged in demolition, (i.e. jack hammering or drilling) but clearing away its by-product. They argue that subparts 23-3.3 (c) and 23- 3.3 (l) were not violated because although there was broken up concrete on the ground, this is not “loosened material” within the meaning of the regulation, because it did not come from any structure, like a building and Mosca was not using it to stand on like a scaffold. Defendants argue it would have been impossible to keep the area where Mosca was working completely free of any broken up material, like concrete, debris, rubble, etc., because she was working side by side with the drill runners, and her job was to remove the debris. Thus, the condition she complains of was the very condition she was instructed to clear and an integral part of her job. Applying similar arguments, defendants argued that the pile of concrete or rubble is not a “structure” within the meaning of 12 NYCRR 23-4.1 (a) that had to be shored up or braced.
Defendants denied that 12 NYCRR 23- 3.3 (c) governing inspections applies to the facts of this case, arguing that such inspections are to safeguard against hazards created by the demolition project itself, not its aftermath or cleanup. Alternatively, they argue that the TBTA and its site safety manager, non-party LiRo inspected the area and found it safe. The defendants maintained that no complaints were made to TBTA about safety in the drilling project. The defendants argued that there is no factual basis for Mosca’s Labor Law § 200 or common law negligence claims against the TBTA because the TBTA did not supervise her work or give her instructions or directions on how to perform it. The defendants contend that TBTA did not have notice of a dangerous condition or create it. They rely on plaintiff ’s testimony, that she took all her instructions and directions from her foreman (Quattrock). When asked whether anyone from TBTA instructed her on what to do, Mosca responded “never.” According to Mosca, her employer (Grace) provided her with whatever equipment they thought she needed to do her job.
The Court held, first, that Labor Law § 241 (6) imposes a non-delegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers. Comes v. New York State Electric & Gas Co., 82 NY2d 876 (1993); Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348 (1998); Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 (1993). To properly state a claim under Labor Law § 241(6), the plaintiff must identify a specific and applicable Industrial Code provision that has been violated. Ross v. Curtis-Palmer Hydro-Elec. Co., supra. The question of whether the plaintiff has alleged a specific provision of the Industrial Code, and whether the condition alleged is within the scope of the Industrial Code regulation, usually presents a legal issue for the court to decide. Messina v. City of New York, 30 AD2d 121 (1st Dept 2002).
“Mosca’s Labor Law § 241 (6) claim fails for a number of reasons. First, Mosca was injured because she was standing on top of a pile she herself created as part of the work she was instructed to do and the condition she was instructed to clear. Gaisor v. Gregory Madison Avenue, LLC, 13 AD3d 58 (1st Dept 2004). Mosca was not jack hammering the concrete, but clearing it. She did this by making small piles and then combining small piles into bigger ones that were then hauled away. The pile was an unavoidable and inherent result of the work she was doing. Harris v. Rochester Gas & Electric Corp., 11 AD3d 1032 (4th Dept 2004); Salinas v. Barney Skanska Construction Co., 2 AD3d 619, 622 (2nd Dept 2003); also, Solis v. 32 Sixth Avenue Company, LLC, 38 AD3d 389, 390 (1st Dept 2007) (although plaintiff not doing demolition” work, the debris was integral part of his work anyway). Therefore, since the pile was an integral part of her work, the debris underfoot is not a code violation.”
“The Industrial Code regulations that plaintiff relies upon set forth safety measures owners and contractors must follow where the structural integrity of buildings” and other structures” is being affected. Salinas v. Barney Skanska Construction Co., supra. For example, 12 NYCRR 23-4.1 (a) which pertains to structures” requires that structures be stabilized by underpinnings, sheet piling, bracing or their equivalents. Balladares v. Southgate Owners Corp., 40 AD3d 667 (2nd Dept 2007). The purpose of these code regulations is to protect against the collapse of a structure associated with a loss of stability.”
“Plaintiff was not working on a project that required the dismantling or razing of a building or structure. Salinas v. Barney Skanska Construction Co., supra; also, Solis v. 32 Sixth Avenue Company, LLC, supra. The roadbed surface of the toll lane was being jack hammered away so it could be refaced. Although plaintiff argues the bridge is itself a structure,” the work being done was superficial or topical, and Mosca was simply gathering up the debris left behind by her fellow workers so it could then be hauled away. The argument that the pile had to be shored” up is offered without any explanation.”
“Nor was Mosca standing above ground level, within the meaning of the Industrial Code regulation requiring that a laborer be provided with sound flooring. Mosca was not using the pile of broken up concrete as a substitute for a scaffold, but stepping on and off the piles to get around the area she was clearing. Harris v. Rochester Gas & Electric, Corp., 11 AD3d 1032, 1033 (4th Dept 2004).”
“Although 12 NYCRR 23- 3.3(c) requires ongoing inspections where demolition work is being performed (Salinas v. Barney Skanska Const. Co., supra.), this is to safeguard against the hazards which are created by the progress of the demolition work, not how the demolition work is being done (Campoverde v. Bruckner Plaza Assoc, L.P., 50 AD3d 836 [2nd Dept 2008]). Looking at the safeguards required to protect against such hazards (shoring, bracing or other effective means”) shows that this section does not apply to the facts of this case either, given the work that was being done.” “Although plaintiff originally identified other regulations she believes were violated, not only has she apparently abandoned them on this motion, but TBTA has nevertheless proved they are either too general to support a Labor Law § 241 (6) claim, or they do not apply to the facts of this case. Thus, 12 NYCRR 23-1.5 is a general safety requirement (Sajid v. Tribeca North Associates L.P., 20 AD3d 301 [1st Dept 2005]), 12 NYCRR 23-1.7 and its subparts pertains to overhead, falling, tripping and other hazards. However, the hazard underfoot, as has been already addressed, was an inherent hazard of the work plaintiff was instructed to do, and therefore these sections are not a predicate basis for her Labor Law § 241 (6) claim.” regulations were violated. However, alleged violations of OSHA regulations are not predicates for a Labor Law § 241 (6) claim. Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 NY2d 343, 350 (1998).” “Based upon the foregoing, defendants’ motion, for summary judgment, dismissing plaintiff’s Labor Law § 241 (6) claim against the TBTA claim is granted.”
“Labor Law § 200 codifies the common law duty imposed upon an owner or general contractor to maintain a safe construction site. Rizzuto v. L.A. Wenger Contracting Co., 91 NY2d 343 (1998). Where such a claim arises out of alleged defects or dangers arising from a subcontractor’s methods or materials, recovery against the owner or general contractor cannot be had, unless it is shown that the party to be charged exercised some supervisory control over the operation. Ross v. Curtis-Palmer Hydro- Electric Co., supra. Since defendants have moved for summary judgment on this cause of action, this must prove they did not exercise supervision and control over injury producing work, or have actual or constructive notice of the dangerous condition alleged, or create the condition. Sheridan v. Beaver Tower Inc., 229 AD2d 302 (1st Dept. 1996) lv den 89 NY2d 860 (1996); O’Sullivan v. IDI Construction Co., Inc., 28 AD3d 225 aff’d 7 NY3d 805 (2006); Rizzuto v. L.A. Wenger Contracting Co., supra; Gonzalez v. United Parcel Serv., 249 AD2d 210 (1st Dept. 1998).” “TBTA has established, and Grace agrees, that the TBTA did not supervise, instruct, or control how Grace or its employees, including Mosca, did their jobs. The equipment that Mosca used was provided to her by her employer and it was her foreman who told her what to do and how to do it. Mosca did not complain to anyone that she felt unsafe doing her assignment. Furthermore, the dangerous condition Mosca contends existed was part of the job she was instructed to do.”
“Although the TBTA monitored the work site and Lewis was present on the day of the accident, he testified he did not see a dangerous condition, no one complained to him about a dangerous condition, and the dangerous condition that Mosca claims existed was an essential part of the work she was doing. There is no evidence that TBTA created the dangerous condition, or that it directed Grace how to do its job. Mosca has testified she had no contact with anyone from TBTA other than to ask them if they wanted coffee.”
“Simply having a general right to supervise the work, or retaining contractual inspection privileges is insufficient to constitute supervisory control so as to impose liability on an owner or general contractor under Labor Law § 200 or a common law negligence claim. Hughes v. Tishman Construction Corp., 40 AD3d 305 (1st Dept 2007); Brown v. New York City Economic Dev. Corp., 234 AD2d 33 (1st dept. 1996); Gonzalez v. United Parcel Serv., supra. Mosca has failed to raise triable issues of fact that to defeat the motion by the TBTA. Therefore, the motion by the defendants for summary judgment dismissing the complaint is granted and Mosca’s Labor Law § 200 is dismissed.”