Witt v. Liquid Asphalt Systems, Inc.

767 F. Supp. 564, 1991 U.S. Dist. LEXIS 9775, 1991 WL 131939
CourtDistrict Court, S.D. New York
DecidedJuly 16, 1991
DocketNo. 90 Civ. 3595 (GLG)
StatusPublished

This text of 767 F. Supp. 564 (Witt v. Liquid Asphalt Systems, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Witt v. Liquid Asphalt Systems, Inc., 767 F. Supp. 564, 1991 U.S. Dist. LEXIS 9775, 1991 WL 131939 (S.D.N.Y. 1991).

Opinion

OPINION

GOETTEL, District Judge:

AT & T Information Systems [hereinafter “AT & T”] hired Hayden Roofing Company to repair the roof on a plant located in Suffern, New York. A necessary part of the job consisted of the application of liquid asphalt. On May 20, 1989, plaintiff Michael Witt was standing atop a 37 ton liquid asphalt tanker manufactured by Liquid Asphalt Systems, Inc. and located on AT & T’s property, transferring liquid asphalt into a smaller tanker with a 7V2 ton capacity in order to carry the asphalt to a job for another party in a different location. The larger tanker exploded, seriously burning Witt, resulting in permanent scars and disability.

After trial on the issues of product liability and negligence, the jury found that 1) Liquid Asphalt had manufactured a defective product; 2) both Liquid Asphalt and Hayden Roofing were negligent; and 3) both the defective product and the negligence of both parties caused Witt’s injuries. Forty percent of the liability was assigned to Liquid Asphalt, sixty percent to Hayden Roofing. The jury found that AT & T Systems had not been negligent and that the “transfer of liquid asphalt performed by the plaintiff at the time of his injury [was not] an integral part of the construction work being performed for AT & T by Hayden Roofing.” The jury awarded roughly $1.7 million to Witt.

Although the jury did not find any negligence on the part of AT & T, under New York state law, AT & T may nevertheless be liable for Witt’s injuries. This decision will address that issue in response to AT & T’s motion to be dismissed from the case on the grounds that it was not negligent and that the work being performed by Witt at the time he was injured was not an integral part of the contract being performed for AT & T.

New York Labor Law § 241(6) imposes a nondelegable duty upon an owner to provide a safe and reasonable work site.1 This section has been construed to establish an absolute liability upon an owner for a breach of the duties imposed by the statute irrespective of the owner’s control or supervision of the construction site. Allen v. Cloutier Construction Corp., 44 N.Y.2d 290, 405 N.Y.S.2d 630, 634, 376 N.E.2d 1276 (1978); Celestine v. City of New York, 86 A.D.2d 592, 446 N.Y.S.2d 131 (2d Dep’t 1982), aff'd, 59 N.Y.2d 938, 466 N.Y.S.2d 319, 453 N.E.2d 548 (1983). Thus, even if a site owner does not directly or indirectly control or supervise the work site, the owner is still liable for any breaches of the duty to provide a safe work place committed by a contractor or subcontractor working on its premises. Sergio v. Benjolo, N.V., 562 N.Y.S.2d 476 (1st Dep’t 1990) (neither lack of control over the work nor over the premises negates owner’s liability under § 241(6)). In addition, injuries resulting from the use of a defective product placed on the owner’s property will result in liability being ascribed to the owner. Kollmer v. Slater Electric, Inc., 122 A.D.2d 117, 504 N.Y.S.2d 690 (2d Dep’t 1986). Although the statute refers to construction, excavation, or demolition, repairs [566]*566to a building roof are within the ambit of this statute. See Shaheen v. International Business Machines Corp., 157 A.D.2d 429, 557 N.Y.S.2d 972 (3d Dep't 1990).

AT & T does not dispute the broad scope of this statute. Rather, it contends that N.Y. Labor Law § 241(6) was not intended to create absolute liability but instead to place vicarious liability on the site owner only when the worker is injured in the course of performing work benefitting the site owner. AT & T contends that liability results only when the work being performed by the injured worker is an integral part of the contract. Thus, AT & T maintains that it cannot be held liable in light of the particular facts of this case.

Testimony at the trial revealed that Hayden was cleaning out its asphalt storage tank and accordingly stored its liquid asphalt in the 37 ton tanker which was then placed on the AT & T site. Some of this asphalt was to be used on the AT & T roof. When Hayden Roofing needed liquid asphalt to fulfill the requirements of another contract, it had to transfer asphalt from the large tanker to a small tanker which would convey the asphalt to the other work site. Witt, when he was injured, was in the process of transferring asphalt to a smaller tanker in order to bring it to another job. As noted earlier, the jury found that the transfer of the asphalt was not an integral part of the contract by which Hayden Roofing was working for AT & T.

While the parties maintain that the law of New York2 is clear, but disagree as to what it is, we find the case law to be undecisive. To resolve the question of whether under § 241(6), AT & T is liable for Witt’s injury as the owner of the work site, careful consideration must be given to the policy underlying this particular statute and the construction given to it by New York courts.

Section 241(6) was intended to give the construction worker protection in addition to that provided by worker’s compensation. Allen v. Cloutier Construction, 405 N.Y.S.2d at 633, 376 N.E.2d at 1279. It thus imposed “absolute liability upon an owner or contractor for a breach of the duties imposed by subdivisions 1 through 6 of section 241.” Id. at 634, 376 N.E.2d at 1279. AT & T suggests that “absolute liability” would result in the owner being liable for any injury occurring on-site. Such an extreme result would be unlikely because under the statute, the owner’s absolute liability results only when a worker is injured as the result of negligence or a breach of some duty on the premises. We recognize that the burden on the site owners is indeed onerous, id., particularly since these owners more often than not exercise no control or supervision over work performed on their property by contractors hired to provide the expertise that the site owner lacks. To hold owners responsible for site safety especially when the owner has no ability to exercise meaningful control or supervision is a heavy placement of responsibility. Indeed, this accident occurred on a Saturday when, except for security personnel, the AT & T premises were closed. But the intent of § 241(6) is to burden the site owner not with the responsibility of ensuring that the site is safe but with the burden of hiring contractors who will meet this challenge. Thus, whether the work being performed on site is for the benefit of the site owner is essentially an irrelevant inquiry because the owner should be selecting contractors who are concerned with worker safety regardless of what work is being performed.

A careful survey of cases addressing the liability of a site owner under § 241(6) confirms this view. For example, in Rapp v. Zandri Construction Corp., 569 N.Y.S.2d 994 (3d Dep’t 1991), the plaintiff sustained eye injuries after a co-worker fired a staple gun in what amounted to horseplay, surely not an integral part of the work being performed on site. The contractor’s failure to provide protective eye gear was the basis of the site owner’s liability. In Celestine v. City of New York, supra, 446 N.Y.S.2d 131, the property in question was the subject of an easement. The grantor of the easement was held liable under § 241(6) even though the work being performed at the time of the accident was for the benefit of the ease[567]*567ment holder, not the property owner.

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Related

Celestine v. City of New York
86 A.D.2d 592 (Appellate Division of the Supreme Court of New York, 1982)
Celestine v. City of New York
453 N.E.2d 548 (New York Court of Appeals, 1983)
Kemp v. Lakelands Precast, Inc.
84 A.D.2d 630 (Appellate Division of the Supreme Court of New York, 1981)
Sprague v. Louis Picciano, Inc.
100 A.D.2d 247 (Appellate Division of the Supreme Court of New York, 1984)
Nagel v. Metzger
103 A.D.2d 1 (Appellate Division of the Supreme Court of New York, 1984)
Kollmer v. Slater Electric, Inc.
122 A.D.2d 117 (Appellate Division of the Supreme Court of New York, 1986)
Sperber v. Penn Central Corp.
150 A.D.2d 356 (Appellate Division of the Supreme Court of New York, 1989)
Shaheen v. International Business Machines Corp.
157 A.D.2d 429 (Appellate Division of the Supreme Court of New York, 1990)
Rapp v. Zandri Construction Corp.
165 A.D.2d 639 (Appellate Division of the Supreme Court of New York, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
767 F. Supp. 564, 1991 U.S. Dist. LEXIS 9775, 1991 WL 131939, Counsel Stack Legal Research, https://law.counselstack.com/opinion/witt-v-liquid-asphalt-systems-inc-nysd-1991.