State of New York
Supreme Court : County of Monroe

Plaintiff,

- against -

Index No. 94/08275

Defendant.

_______________________________
Faber Homes, Inc.,

Third-party Plaintiff,

- against -

Heartwood Interiors, Inc.,

Third-party Defendant.

_______________________________

MEMORANDUM DECISION

On February 17, 1993, in the middle of a snow storm, the plaintiff, an employee of third-party defendant Heartwood, was sent to work on a house under construction in a suburban tract development owned by defendant Faber Homes. The house where he was to work was to have a concrete front porch and steps, but these had not been poured, and the gap from ground to doorway was bridged by a plank that rose at an angle. Plaintiff had no difficulty with the plank, but when he stepped down to the ground in front of the doorway, into snow which had accumulated on flat steel that was flush to the ground, he slipped and fell. He continued to work but his condition grew worse over the next few months.

Plaintiff originally pleaded causes of action under Labor Law sections 200(1), 240(1) and 241(6), along with common-law negligence. He has subsequently conceded that 240 is inapplicable to these facts and withdrawn that cause of action.

Both Faber and the third-party defendant, Heartwood, have moved for summary judgment on the remaining causes of action. Plaintiff has not cross-moved but opposes the motions. The court finds that there is no cause of action under Labor Law § 200(1) or under the common-law negligence theories that the section incorporates, but that there are questions of fact precluding summary judgment under Section 241(6). In particular, the court finds that the traditional doctrine of "storm in progress", relied upon by both defendants, is not an absolute bar to negligence and 241(6) actions in employment situations.

Labor Law § 200(1) cannot be distinguished from common-law theories of negligence; it merely restates those theories without adding any cause of action against parties without supervision and control of the work site and without furnishing an exception to the exclusivity provisions of the Workers' Compensation Law.

Faber, the owner of the development, had no right to control the work. Plaintiff points to evidence in the record that it acted as general contractor and scheduled the work. According to the plaintiff, this conceivably renders Faber liable: without its decision to have interior work done before the porch steps were poured there would have been no accident. Similarly, plaintiff claims that Faber's decision to allow steel rather than (e.g.) plywood or dirt where the concrete would be contributed to the accident as well.

The court finds that these scheduling and materials decisions fall short of the supervision and control necessary to create liability under common law negligence and § 200. The fundamental standard is one of reasonable precaution measured by the foreseeable plaintiff; and the court refuses to find any duty on the part of contractors to use dirt or wood rather than steel, or to schedule the pouring of stairs before interior work.

As Faber had no supervision or control of the actual manner of work, it has no liability under either common law or § 200(1). As Heartwood was the plaintiff's employer, Workers' Compensation cuts off the plaintiff's cause of action under those same theories. These causes of action should be dismissed.

Faber and Heartwood both claim that Labor Law § 241(6) is inapplicable, because (according to Faber's brief), while there may be an issue as to a violation of 12 NYCRR § 23-1.7(d) (keeping passageways, etc., free of snow and ice and other slipping hazards), "it is the responsibility of the employer and not the owner to provide that any passageway be free from ice and snow".

This is an extraordinary misreading of Labor Law § 241(6); even the limitations placed on that section by Ross v Curtis-Palmer (81 NY2d 494) do not go so far. If an employer negligently violates a section of the Industrial Code which mandates specific safety standards, the owner is liable under § 241(6). The fact that the plaintiff sues the owner is no basis for dismissing the 241(6) claim; if Heartwood negligently violated the section, Faber would be liable directly to plaintiff and Heartwood would be liable to indemnify Faber, either contractually or by common law.

There is a colorable case that the accumulation of snow and ice on the steel was a violation of section 23-1.7 of the Industrial Code. However, in the aftermath of Ross there must be a showing of negligence as well as a Code violation. Faber produces weather reports and an affidavit from meteorologist Kevin Williams to show that there was a fairly severe storm in progress on the day of the accident. Faber argues that because there was a storm in progress Heartwood had no duty to remove snow; because there was no duty to remove snow and ice until the storm was over, there can be no negligence and thus no 241(6) liability.

The "storm in progress" doctrine is solidly based in case law, and there is unrefuted evidence of a storm on the day in question, which continued until well after any time when the accident could have taken place. (The plaintiff is vague on the exact time.) However, the defendant cannot cite a single case where a Labor Law action was dismissed because of the rule, and the court declines to apply it in this case.

Rules such as "storm in progress" have no absolute value; since Basso v Miller (40 NY2d 233), at least, they are mere shorthand for specific cases of the general principle of reasonable care. Reasonable care, in turn, must be measured by the foreseeability of injury.

Ordinary landowners may have no duty to clear off snow and ice during a storm because potential plaintiffs can stay home and must accept certain risks if they venture out into a storm; but there is no reason to apportion the risks between employers and employees in the same way. Unlike shoppers or travelers, employees have no choice but to report to the work site.The standard of reasonable care imposed on a private landowner towards passers-by need not require the same conduct as the one borne by employers.

Here the storm had been going on for at least a day. The employer and owner both knew or should have known of the snow and the presence of employees on the site. One or both had the authority to clear the snow. Under these facts a jury might reasonably find that was negligent to send workers off to an uncleared work site. Summary judgment on this issue is not proper; but it would certainly be unreasonable to apply the storm-in-progress defense as a matter of law, and push all risk of injury onto a worker who had no authority to clear the snow or postpone the work.

The plaintiff's section 240(1) cause of action is dismissed, upon the plaintiff's concession, and the causes of action under common law negligence and section 200(1) are dismissed upon motion of defendant and third-party defendant. The motions to dismiss the section 241(6) cause of action are denied. Counsel for third-party defendant may prepare the order, with no costs or disbursements payable.

October 10, 1996

Andrew V. Siracuse, J.S.C.