Timmons v. Barrett Paving Materials, Inc.

83 A.D.3d 1473, 920 N.Y.S.2d 545
CourtAppellate Division of the Supreme Court of the State of New York
DecidedApril 1, 2011
StatusPublished
Cited by13 cases

This text of 83 A.D.3d 1473 (Timmons v. Barrett Paving Materials, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Timmons v. Barrett Paving Materials, Inc., 83 A.D.3d 1473, 920 N.Y.S.2d 545 (N.Y. Ct. App. 2011).

Opinion

Appeals and cross appeal from a judgment of the Supreme Court, Oswego County (Norman W. Seiter, Jr., J.), entered April 24, 2009. The judgment, among other things, granted defendant/third-party plaintiff Barrett Paving Materials, Inc.’s motion for summary judgment in action No. 1 and denied defendant Colony Insurance Company’s motion for summary judgment in action No. 2.

It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiffs Joseph Timmons and Jennifer Timmons (Timmons plaintiffs) commenced action No. 1 alleging, inter alia, Labor Law violations based on injuries sustained by Joseph Timmons (Timmons) when he was struck by a metal catwalk while working on property owned by Barrett Paving Materials, Inc. (Barrett), the defendant in action No. 1. Barrett in turn commenced a third-party action against Timmons’ [1474]*1474employer, Schneider Brothers Corporation (Schneider), seeking a declaration that Schneider was obligated to defend and indemnify it in action No. 1 and that it was an additional insured under a commercial general liability policy issued to Schneider by Colony Insurance Company (Colony). Thereafter, Barrett commenced action No. 2 against Colony, the defendant in that action, seeking, inter alia, a declaration that it is an additional insured under the policy issued to Schneider.

In action No. 1, Barrett moved, inter alia, for summary judgment dismissing the Labor Law § 240 (1), § 241 (6) and § 200 claims against it, as well as the separate Labor Law § 241 (6) cause of action against it, and for judgment in the third-party action declaring that Schneider must defend and indemnify it in the Timmons action. Supreme Court granted those parts of the motion with respect to the Labor Law and, although the Timmons plaintiffs also asserted a cause of action for common-law negligence, the court, apparently sua sponte, dismissed the complaint in its entirety. We note that the Timmons plaintiffs do not contend on appeal that Barrett did not seek that relief with respect to the common-law negligence cause of action, nor do they contend that Barrett was not entitled to it. The Timmons plaintiffs thus are deemed to have abandoned any contention with respect to the alleged viability of the common-law negligence cause of action (see Ciesinski v Town of Aurora, 202 AD2d 984 [1994]).

Contrary to the Timmons plaintiffs’ contention, the court properly granted that part of the motion with respect to Labor Law § 240 (1). It is well settled that Labor Law § 240 (1) “was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person” (Runner v New York Stock Exch., Inc., 13 NY3d 599, 604 [2009], quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). “[F]or section 240 (1) to apply, a plaintiff must show more than simply that an object fell causing injury to a worker. A plaintiff must show that the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute” (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 268 [2001]).

Here, the record establishes that, prior to the accident, Timmons and a coworker had tack-welded the catwalk to a building, following which the workers noticed that the outside portion of the catwalk was slightly higher than the inside portion. Timmons’ coworker attempted to level the catwalk by pushing down [1475]*1475on it with a manlift while Timmons, who was standing on a lower catwalk, prepared to weld a support gusset underneath the tack-welded catwalk. As a result of the pressure exerted on the catwalk by the manlift, the tack-weld on the portion of the catwalk closest to Timmons broke and that end of the catwalk fell, striking Timmons in the head and pinning him between the upper catwalk and the handrail of the lower catwalk. “Since the [catwalk] was not an object being hoisted or secured, Labor Law § 240 (1) does not apply” (id. at 269; see Bennett v SDS Holdings, 309 AD2d 1212, 1213 [2003]). We thus conclude that Timmons was “exposed to the usual and ordinary dangers of a construction site, and not the extraordinary elevation risks envisioned by Labor Law § 240 (1)” (Rodriguez v Margaret Tietz Ctr. for Nursing Care, 84 NY2d 841, 843 [1994]).

With respect to Labor Law § 241 (6), the court properly concluded that the Industrial Code regulations relied upon by the Timmons plaintiffs are either insufficiently specific to support such a claim or cause of action or are inapplicable to the facts of this case. 12 NYCRR 23-1.5 “sets forth only a general safety standard and is thus incapable of supporting a Labor Law § 241 (6) claim” or cause of action (McCormick v 257 W. Genesee, LLC, 78 AD3d 1581, 1583 [2010] [internal quotation marks omitted]; see Wilson v Niagara Univ., 43 AD3d 1292, 1293 [2007]). In addition, 12 NYCRR 23-1.7 (a) does not apply here because there is no evidence that the area in which Timmons was working was “normally exposed to falling material or objects” within the meaning of that section (12 NYCRR 23-1.7 [a] [1]; see Perillo v Lehigh Constr. Group, Inc., 17 AD3d 1136, 1138 [2005]). Lastly, 12 NYCRR 23-2.3 also has no application to this case because it regulates “the final placing of structural steel members” (12 NYCRR 23-2.3 [a] [1]), which was not the task in which Timmons was engaged at the time of his accident (see Smith v Le Frois Dev., LLC, 28 AD3d 1133, 1134 [2006]). In any event, even if the upper catwalk was a “structural steel memberf ],” 12 NYCRR 23-2.3 (a) (1) “does not require that hoisting ropes be used for the placing of structural steel members. Rather, the regulation applies only when hoisting ropes are actually used for the placing of structural steel members. Thus, because no hoisting ropes were used by [Timmons], the regulation is inapplicable” (Hasty v Solvay Mill Ltd. Partnership, 306 AD2d 892, 894 [2003]).

With respect to Labor Law § 200, that statute “codifies the common-law duty of an owner or employer to provide employees with a safe place to work” (Jock v Fien, 80 NY2d 965, 967 [1992]; see Ross, 81 NY2d at 505; Lombardi v Stout, 80 NY2d [1476]*1476290, 294 [1992]). “An implicit precondition to this duty is that the party charged with that responsibility have the authority to control the activity bringing about the injury” (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993] [internal quotation marks omitted]). “Where the alleged defect or dangerous condition arises from the contractor’s methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under . . . Labor Law § 200” (id.; see Lombardi, 80 NY2d at 295).

Here, Barrett established that it did not supervise or control the manner or method of the work performed by Timmons, and the Timmons plaintiffs failed to raise a triable issue of fact in opposition (see Lovall v Graves Bros., Inc., 63 AD3d 1528, 1530 [2009]; Uzar v Louis P. Ciminelli Constr. Co., Inc., 53 AD3d 1078, 1079 [2008]; cf. Capasso v Kleen All of Am., Inc., 43 AD3d 1346, 1347-1348 [2007]).

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Cite This Page — Counsel Stack

Bluebook (online)
83 A.D.3d 1473, 920 N.Y.S.2d 545, Counsel Stack Legal Research, https://law.counselstack.com/opinion/timmons-v-barrett-paving-materials-inc-nyappdiv-2011.