Morton v. State

930 N.E.2d 271, 15 N.Y.3d 50, 904 N.Y.S.2d 350

• Court: New York Court of Appeals
• Decided: June 8, 2010
• Docket: 103
• Status: Published

Opinions

OPINION OF THE COURT

Read, J.

Claimant Alan Morton was injured on the morning of April 3, 1997 while working for his employer, New York Water Service Corporation (the water company), a private company that furnishes water to portions of Nassau County. On that date, he was a member of a four-person work crew, including a foreman, dispatched with a backhoe to fix a break reported in a company-owned water main installed in 1928 beneath Carman Mill Road, Massapequa, New York, a part of the State of New York’s highway system (see Highway Law § 341 [29] [1]).

Upon arrival at the job site, the work crew notified affected customers and shut off water service, excavated test holes to pinpoint the leak’s origin, and placed traffic cones to alert motorists to the presence of the backhoe, which occupied a portion of the northbound travel lane. Using the backhoe and shovels, the crew dug up blacktop in the roadbed and created a hole or trench, exposing the 12-inch water main buried several feet underground. When claimant climbed down into this trench to clean around the main and apply a repair clamp, a side wall caved in, burying his right leg and foot.

In June 1997, claimant, with his wife suing derivatively, brought this action against the State. He asserted common-law negligence and violations of Labor Law §§ 200, 240 and 241 (6), and sought $5.5 million in damages. In 2002, claimant moved for partial summary judgment as to liability on his Labor Law § 241 (6) and negligence claims. He premised liability in the former on violation of Industrial Code (12 NYCRR) subpart 23-4, which requires banked or sloped sides (12 NYCRR 23-4.2 [a]) or “sheeting, shoring and bracing” (12 NYCRR 23-4.4 [a]) of excavations that are five feet or more deep. The State opposed the motion and cross-moved for summary judgment dismissing the complaint.

The State argued that it was not liable under Labor Law § 241 (6) because the water company failed to obtain a work permit from the New York State Department of Transportation (DOT), as mandated by Highway Law § 52, prior to repairing the water main, which was situated within the state highway right-of-way. Section 52 provides that

“[e]xcept in connection with the construction, reconstruction, maintenance or improvement of a state highway, no person, firm, corporation, municipality, or state department or agency shall . . . lay or maintain [within the state highway right-of-way] underground wires or conduits or drainage, sewer or water pipes, except in accordance with the terms and conditions of a work permit issued by the commissioner of transportation” (see also Vehicle and Traffic Law § 1220-c [“(e)xcept in connection with the construction, reconstruction, maintenance, or improvement of a state highway, no person shall work on a state highway without a work permit issued by the state commissioner of transportation”]; 17 NYCRR 126.2 [a], [b] [a work permit must be secured “to temporarily obstruct or to install, construct, maintain or operate any facilities within the bounds of a State highway right-of-way,” including “excavating ... or work of a like nature under, or over or along the highway”]).

By decision and order dated October 21, 2002, the Court of Claims dismissed claimant’s negligence claims because the State lacked actual or constructive notice of any dangerous condition and did not exercise supervision or control over the work site. The court also denied claimant’s motion and the State’s cross motion for summary judgment on the Labor Law § 241 (6) claim. The judge concluded that Highway Law § 52 did not insulate the State from liability under Labor Law § 241 (6) because this provision “imposed a nondelegable duty upon ‘owners’ to provide reasonable and adequate protection and safety to persons employed in excavation work regardless of the absence of control, supervision or direction of the work.” He did find, however, that material questions of fact existed as to soil composition and the excavation’s depth, which implicated the applicability of the Industrial Code sections relied upon by claimant.

After the ensuing nonjury trial, the Court of Claims on April 9, 2003 found that the excavation was not protected by sloped or banked sides or by sheeting, shoring or bracing, and that it was more than five feet deep. The judge decided that claimant had therefore proven violations of sections of the Industrial Code specific enough to support Labor Law § 241 (6) liability; and that these violations proximately caused the accident, and thus contravened the State’s nondelegable duty to claimant under Labor Law § 241 (6). The judge also found that the State had not proven claimant’s comparative negligence by a preponderance of the credible evidence. Accordingly, on May 7, 2003, an interlocutory judgment determining the State to be negligent and 100% liable for claimant’s injuries was entered in the Court of Claims. The State appealed from both the order denying its cross motion for summary judgment on the section 241 (6) claim and the interlocutory judgment.

In December 2004, the Appellate Division dismissed the State’s appeal from the interlocutory judgment as academic; reversed, on the law, the portion of the Court of Claims’ order that denied the State’s cross motion for summary judgment dismissing the section 241 (6) claim; granted the State summary judgment on and dismissed that claim; and vacated the interlocutory judgment (13 AD3d 498 [2d Dept 2004]). Citing Abbatiello v Lancaster Studio Assoc. (3 NY3d 46, 51 [2004]), the court reasoned that the

“State is not liable . . . under Labor Law § 241 (6) because the claimant was not within the class of persons afforded protection under the statute. Since [the water company] failed to obtain a highway work permit in violation of state law . . . [the water company] and the claimant trespassed on the State’s property in performing excavation and repairs on the state highway . . . Since the claimant was performing work without the State’s permission or knowledge, he was not a person ‘employed’ at a work site within the meaning of the Labor Law, which defines such an individual as one ‘permitted or suffered to work’ (Labor Law § 2 [7])” (13 AD3d at 500 [citations omitted]).

We granted claimant permission to appeal (13 NY3d 702 [2009])¹ and now affirm.

Labor Law § 241 (6) provides that

“[a]ll contractors and owners and their agents . . . , when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements: . . .

“All areas in which construction, excavation or demolition work is being performed shall be 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. The [New York State Commissioner of Labor] may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work . . . shall comply therewith.”

Thus, Labor Law § 241 (6) imposes a nondelegable duty² on owners and contractors to comply with the Commissioner of Labor’s regulations (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 502 [1993]). And “to the extent that [a] plaintiff . . . assert[s] a viable claim under Labor Law § 241 (6), he need not show that defendants exercised supervision or control over his worksite in order to establish his right of recovery” (id.).

But we have consistently held that ownership of the premises where the accident occurred—standing alone—is not enough to impose liability under Labor Law § 241 (6) where the property owner did not contract for the work resulting in the plaintiffs injuries; that is, ownership is a necessary condition, but not a sufficient one. Rather, we have insisted on “some nexus between the owner and the worker, whether by a lease agreement or grant of an easement, or other property interest” (Abbatiello, 3 NY3d at 51; see also Scaparo v Village of Ilion, 13 NY3d 864, 866 [2009] [“In cases imposing liability on a property owner who did not contract for the work performed on the property, this Court has required ‘some nexus between the owner and the worker, whether by a lease agreement or grant of an easement, or other property interest’ ” (quoting Abbatiello, 3 NY3d at 51)]).

We found no nexus in Abbatiello where the plaintiff, a cable television repairman, was injured at a building owned by the defendant while responding to the complaint of a tenant who was a cable television subscriber. The plaintiffs employer had sent the plaintiff to the defendant’s building to respond to the complaint. We emphasized that the “injured plaintiff was on the owner’s premises not by reason of any action of the owner but by reason of provisions of the Public Service Law,” which precludes landlords from interfering with the installation of cable television facilities on their property (Abbatiello, 3 NY3d at 51). Moreover, the owner was “powerless to determine which cable company [was] entitled to operate, repair or maintain the cable facilities on its property, since [pursuant to Public Service Law § 219] such decision lies with the municipality—the franchisor” (id. at 52). As we elaborated,

“but for Public Service Law § 228, plaintiff would be a trespasser upon [the defendant’s] property and [the defendant] would neither owe a duty to plaintiff nor incur liability. Any permission to work on the premises was granted upon compulsion and no relationship existed between [the defendant] and [the plaintiffs employer] or the plaintiff’ (id.).

We contrasted Abbatiello with three earlier cases in which there was a nexus between the owner and the injured worker: Celestine v City of New York (86 AD2d 592, 593 [2d Dept 1982], affd 59 NY2d 938 [1983] [in action under Labor Law § 241 (6), owner granted an easement to entity contracting for work leading to plaintiffs accident]); Gordon v Eastern Ry. Supply (82 NY2d 555, 559 [1993] [in action under Labor Law § 240 (l),³ owner leased property to contractor who performed work leading to plaintiffs accident]); and Coleman v City of New York (91 NY2d 821, 823 [1997] [in action under Labor Law § 240 (1), owner leased property to injured employee’s employer]).

We next applied the nexus test in Sanatass v Consolidated Inv. Co., Inc. (10 NY3d 333, 341 [2008]), where a mechanic was injured while installing an air conditioning unit for a tenant of a commercial building owned by the defendant landlord. The tenant had agreed by lease not to make any changes to the premises without the owner’s written consent, but nevertheless hired the plaintiff’s employer without notifying the landlord. There, a nexus arose from the owner’s lease of the premises to the tenant who, in turn, hired the plaintiffs firm to install the air conditioning unit. Further, the tenant’s breach of the lease agreement requiring the owner’s written consent for alterations “did not sever the nexus” (id. at 341-342). We distinguished Abbatiello, pointing out that although the owner in that case “was unaware of and did not consent to the plaintiffs presence on the property, these facts alone were not determinative of our affirmance of the dismissal of the complaint”—i.e., “Abbatiello did not announce a new notice requirement for section 240 (1) cases” (id. at 341). Rather, the difference between Abbatiello and Sanatass was the absence of a nexus in the former and its presence in the latter (id.). And we again explained that in “Celestine and its progeny ... a nexus existed between the out-of-possession owner and the plaintiff, be it by lease, easement or some other property interest” (id.). Finally, we observed that “[ujnlike the cable technician in Abbatiello, the plaintiff in [Sanatass] . . . cannot conceivably be viewed as a ‘trespasser’ ” (id. at 342).

Scaparo is our most recent decision discussing the nexus prerequisite. There, the injured plaintiffs, employees of the Village of Frankfort, were connecting a sewer lateral from a newly constructed cemetery chapel owned by a church to the sewer main at a street intersection in the village (see 64 AD3d 1209, 1211 [4th Dept 2009]). The Herkimer County Industrial Development Agency (HCIDA) owned the property where the sewer lateral was installed; that property was within the Village’s utility right-of-way (see id.). Affirming the Appellate Division, we determined that HCIDA was not liable under Labor Law § 241 (6) because there was no nexus between HCIDA and the injured plaintiffs. As we explained,

“although the accident occurred on HCIDA’s property, HCIDA did not contract with the Village of Frankfort to have the sewer lateral installed, it had no choice but to allow the Village to enter its property pursuant to a right-of-way, and it did not grant the Village an easement or other property interest creating the right-of-way” (Scaparo, 13 NY3d at 866).

Here, there was no lease agreement or grant of an easement or other property interest creating a nexus between claimant and the State. Claimant was performing excavation work on the State’s premises “not by reason of any action of the [State] but by reason” of the water company’s obligation to repair a break in its water line (Abbatiello, 3 NY3d at 51). And although claimant protests that the water company’s repairs took care of the damage caused to the State-owned roadway by the leak and removed a traffic hazard in an emergency situation,⁴ we long ago concluded that whether a property owner benefits in any sense from the injury-related work is “legally irrelevant” to determining whether the Labor Law imposes a nondelegable duty (see Gordon, 82 NY2d at 560).

Claimant also urges that he “did not simply trespass on another’s property,” and tags the statutory requirement for a highway work permit as “[a] mere formality.” But we have recognized that the “terms and conditions [of these permits] are not meaningless or optional; the permitee agrees to abide by them in order to obtain DOT’s permission to work in the highway right-of-way” (Brothers, 11 NY3d at 260). The permit requirement allows DOT to inspect the work site to insure the safety of motorists, pedestrians and others in the work zone, and to safeguard the roadway’s integrity. And as we indicated in Brothers, DOT may revoke a highway work permit at any time if necessary to protect the public (see id. at 259; see also 17 NYCRR 129.3 [b] [the DOT Commissioner “reserves the right to revoke or annul the (state highway) permit at any time and at his discretion without a hearing or the necessity of showing cause”]; 17 NYCRR 131.21 [c] [DOT “reserves the right to modify and to revoke or annul” a highway work permit issued for utility facilities occupying a state right-of-way “upon a determination within its sole discretion, and without a hearing, that continued operation under the permit will cause or continue a threat to the public or to the operation of the highway”]). In addition, the permit requirement allows the State to verify that the permittee has liability insurance in place to protect the State’s interests (see 17 NYCRR 129.3 [f]; part 127).⁵

Finally, claimant suggests that a highway work permit may not have been necessary here because of the “emergency situation.” DOT’s regulations, however, make clear that the water company was required to have in hand either a job-specific or an annual permit before undertaking excavation of the roadway, notwithstanding any exigency (see 17 NYCRR 126.2, 129.1). There are simply different requirements for notifying DOT, depending on whether or not an emergency exists (compare 17 NYCRR 129.3 [a] [1] with 17 NYCRR 129.3 [a] [2]; see also 17 NYCRR 126.6 [specifying instructions to obtain highway work permits that apply to, among other things, “emergency repairs and public utilities”]). Additionally, even if it were true that the water company was entitled to enter the state highway right-of-way without a work permit in order to make emergency repairs, the State still would not be liable. In that circumstance, “[a]ny permission to work on the premises [would have been] granted upon compulsion and no relationship [would have] existed between [the State] and [the water company] or [claimant]” (Abbatiello, 3 NY3d at 52).

The outcome of this case would be different—as the State concedes—if the water company had secured a highway work permit before excavating in the state highway right-of-way. In that event, the work permit would have created the nexus between the claimant, the injured worker, and the State, the property owner. Without the permit, though, claimant was a trespasser to whom the State owed no duty under Labor Law § 241 (6).

Although acknowledging that we have always “required as a condition of owner liability [under Labor Law § 241 (6)] no more than some connection, or ‘nexus,’ between the owner and the plaintiff,” the dissent never suggests how this minimal standard was met—i.e., what the nexus might have been—in this case (dissenting op at 63; cf. n 4 at 58). All we are told is that “[tjhere is ... no issue ... as to whether” this unspecified nexus “was attenuated by out-of-possession status” as was purportedly the question in Sanatass (dissenting op at 64). Of course, in Sanatass there was a clear nexus—a lease—and the issue, as we articulated it, was not whether this nexus was “attenuated by [the landlord’s] out-of-possession status,” but whether it had been “sever[ed]” by the tenant’s breach of a clause in the lease prohibiting the hiring of a contractor to make alterations in the premises without the landlord’s written prior consent (see Sanatass, 10 NY3d at 341-342). We decided, of course, that this clause did not sever the nexus created by the lease.

Under the dissent’s apparent analysis of our prior cases, a property owner who did not contract for the injury-inducing work is liable under Labor Law § 241 (6) unless the plaintiffs employer’s entry onto the premises results from compulsion— i.e., permission unrelated to a lease, easement or some other property interest granted by the owner. This is certainly contrary to the way in which we have consistently explained and reconciled our precedents, and effectively eliminates the nexus requirement. More to the point, there is no reason to believe that this is what the Legislature intended. Indeed, such a liability scheme would do away with any motive or means for a property owner “to assure that only financially responsible and safety-conscious subcontractors are engaged so that a high standard of care might be maintained throughout the entire construction site”; and to “furnish[ ] an additional incentive to both insurer and insured to maintain safety standards necessary to avoid increased exposure to liability” (Allen v Cloutier Constr. Corp., 44 NY2d 290, 301 [1978]).

Accordingly, the judgment appealed from and the order of the Appellate Division brought up for review should be affirmed, with costs.

1 . Claimant first moved for leave to appeal in 2005. We dismissed that motion for lack of finality because his claim under Labor Law § 240 remained pending in the lawsuit (5 NY3d 783 [2005]). In May 2009, however, the parties stipulated to discontinue the section 240 claim.

2 . As we noted in Brothers v New York State Elec. & Gas Corp. (11 NY3d 251, 256 n 1 [2008]), “[i]n tort law, the term ‘nondelegable duty,’ although widely used, is somewhat misleading. The question is not so much whether a defendant can or has delegated to another party a duty owed by that defendant to a particular plaintiff, but whether the defendant owes the plaintiff a duty in the first place.”

3 . Like Labor Law § 241 (6), Labor Law § 240 (1) imposes a nondelegable duty on owners.

4 . Claimant articulates the nexus that he asserts in this case as follows: “At bar, the nexus between claimant’s work and the State’s ownership is clear—the emergency situation blocked traffic and the road was buckling, and the State had a non-delegable duty to maintain the road; [the water company’s] work was designed to assist the State.” In fact, the water company did not repair the leak to help the State maintain its roadway; its repairs simply eliminated or mitigated damages otherwise owing the State for the harm to State-owned property caused by the leak, which the water company was obligated to fix to maintain service to its customers.

5 . For some unexplained reason, the water company purchased protective liability insurance naming DOT as an additional insured, which was in force at the time of claimant’s accident, even though there was no job-specific or annual work permit requiring it. Although the State impleaded the insurance carrier after learning about the policy during discovery, the Court of Claims dismissed the third-party complaint for failure to provide the insurer with timely notice of the claim.