Sweeney v. City of New YorkSweeney v. City of New York
OPINION OF THE COURT
Defendants Reicon Group LLC and Reinauer Transportation Companies, L.P move for summary judgment pursuant to CPLR 3212 dismissing all causes of action against them.
On April 17, 2001, plaintiff was allegedly employed as a dock builder by Reicon, a marine construction contractor, and was working as a dive tender aboard the CB Bergen, a stationary work barge owned by Reinauer, in connection with a pier demolition/rehabilitation contract Reicon was performing for the City of New York at the Department of Sanitation Marine Transfer Station located at 31st Avenue in College Point, New York. While plaintiff was throwing a line to the marine diver he was assisting, he slipped and fell forward, injuring his left knee and hand. He testified at his deposition that he slipped because the deck of the vessel was “wet” and “slippery” from either rain that fell that day, hydraulic fluid and/or diesel oil that spilled on the deck, and/or water that had accumulated in the area from the tool retrieval line he had thrown to the diver “numerous” times.
Plaintiff commenced the instant action against the City of New York, Reicon, and Reinauer alleging violations of Labor Law § 240 (1), §§ 200 and 241 (6) against all defendants, and violations of 33 USC § 905 (b) and § 933 (the Longshore and Harbor Workers’ Compensation Act [LHWCA]) against Reicon and Reinauer for “vessel negligence.” In his bill of particulars, plaintiff alleges that “because of the absence of a functional non-skid coating on the deck of the vessel, the deck was rendered additionally slippery, hazardous and unsafe . . . .”
In support of their motion to dismiss the complaint insofar as asserted against them, defendants argue that plaintiff’s LH-WCA claim is barred by the exclusive remedy of workers’ compensation payments, which plaintiff received from Reinauer’s workers’ compensation insurer (see 33 USC §§ 904, 905 [a]). Defendants also contend that Reinauer is not liable to plaintiff under the LHWCA for negligence of the vessel pursuant to 33 USC § 905 (b) because it was not negligent in its capacity as vessel owner.
“Pursuant to the LHWCA, a maritime worker injured in the course of employment is entitled to workers’ compensation
“[i]n Jones & Laughlin Steel Corp. v Pfeifer (462 US 523 ), the United States Supreme Court held that 33 USC § 905 (b) authorizes a negligence action against a vessel even where . . . the owner is also the worker’s employer. In a footnote, the Court stated that the statute makes it clear that under such circumstances, the vessel owner is liable only for negligence in its owner capacity, not for negligence in its employer capacity” (id. at 377, citing Jones & Laughlin Steel Corp.,462 US at 531 n 6).
“In determining whether the provisions of the LHWCA may be invoked, an employer must establish that the injured party was engaged in maritime employment at the time of the injury and that he was performing these duties on navigable waters” (Colamarino v City of New York,
As to the viability of plaintiffs cause of action pursuant 33 USC § 905 (b), as noted, defendants argue that, as plaintiff’s employers, their liability under the LHWCA is limited to pay
As an initial matter, as plaintiff properly recognizes, even assuming Reinauer is found to be his employer, liability may nevertheless lie against Reinauer basеd upon its status as owner of the barge pursuant to section 905 (b) of the LHWCA. In any event, on the merits, a question of fact exists as to whether Reinauer was plaintiffs employer. First, it is true that plaintiff pleaded in his verified complaint that he was employed by both defendants when the accident occurred, which constitutes a conclusive judicial admission (People v Brown,
As to whether Reinauer is plaintiff’s employer, immunity under the LHWCA, which is bаsed upon this State’s Workers’ Compensation Law, applies “ ‘whether the relationship between two corporate entities is that of joint venturers, parent and subsidiary, corporate affiliates, or general and special employers’ ” (Claudio v United States,
In determining whether separate companies operate as a single entity, courts consider, inter alia, whether there is common ownership, common management, interrelation of operations, and centralized control of labor relations (Madi v United Parcel Serv. Gen. Servs. Co.,
Here, plaintiff testified that he alleged in the complaint that both Reinauer and Reicon were his employers because he received his paychecks from Reicon, but that Reinauer “had control” over Reicon. Mr. Jeffrey Wollman, a vice-president of Reinauer Group, which includes both defendants and another corporation not a party to this action, testified that “Reinauer is the parent company and Reicon is another offshoot company within Reinauer”; that Reinauer was in the oil transportation business and Reicon was in the marine construction business; and that the two corporations share common officers, directors and the same office. In his sworn affidavit, Mr. Wollman states, inter alia, that Reicon is a wholly owned subsidiary of Reinauer; that he is responsible for supervising and managing the day-today operations of Reicon’s marine construction business; and
In opposition, plaintiff asserts that questions of fact exist as to Reinauer’s employer status. In this regard, plaintiff notes that three of his supervisors were employees of Reicon and that he was paid by Reicon. He also argues that Reicon’s “set up” as a “separate, specialist dock building company” suggests that Reicon was his employer. In addition, he states that Reicon existed as a distinct entity to enable it to hire labor which Reinauer, due to a collective bargaining agreement with another union, was unable to do. Plaintiff contends that if defendants were essentially the same corporation, the labor pool from which the two corporations procured workers would not be distinct, as it was when the accident occurred.
While defendants have submitted evidence demonstrating that they are closely related, a question of fact exists as to whether Reicon is the alter ego of Reinauer such that Reinauer may be considered plaintiffs employer. In this regard, although Mr. Wollman testified that the two corporations share officers, directors and an office, and that Reinauer held the policy which paid plaintiff his compensation benefits, Mr. Wollman’s testimony establishes that Reinauer was in the oil transportation business and Reicon was in the marine construction business, suggesting separate corporate entities (see Longshore v Paul Davis Sys. of Capital Dist.,
Finally, it is true that workers’ compensation benefits were paid through a policy issued to Reinauer, suggesting Reinauer was plaintiffs employer. However, the insurance policy named Reicon as an additional insured. In addition, only employees of Reicon supervised plaintiff on the job, and plaintiff was paid by Reicon, suggesting Reicon was plaintiffs employer.
As discussed above, despite the existence of a question of fact as to whether Reinauer was plaintiffs employer, liability may lie against Reinauer pursuant to 33 USC § 905 (b) for “vessel negligence”
“[T]he Supreme Court considered the duty of care that a vessel owner owed to an injured longshore worker who was employed by an independent stevedoring firm. For this common triangular relationship at least — vessel, stevedore, and longshore worker — the Court held that limiting the vessel’s duty of care so as to put the chief responsibility upon the independent stevedore was consistent with Congress’ intent to permit third-party negligence*841 actions against the vessel but to eliminate the vessel’s no-fault liability (the ‘unseaworthiness’ claim). In Howlett, a case that also involved a longshore worker suing an independent vessel, the Court restated the vessel’s limited residual duties:
“The first, which courts have come to call the ‘turnover duty,’ relates to the condition of the ship upon the commencement of stevedoring operations . . . The second duty, applicable once stevedoring operations have begun, provides that a shipowner must exercise reasonable care to prevent injuries to longshoremen in areas that remain under the ‘active control of the vessel.’ . . . The third duty, called the ‘duty to intervene,’ concerns the vessel’s obligations with regard to cargo operations in areas under
the principal control of the independent stevedore” (Morehead v Atkinson-Kiewit, J/V,97 F3d 603 , 608-609 [1st Cir 1996], citing Howlett v Birkdale Shipping Co., S.A.,512 US 92 , 98; see also Scindia Steam Nav. Co. v De Los Santos,451 US 156 , 167-168 [1981]; Manuel v Cameron Offshore Boats, Inc.,103 F3d 31 , 33-34 [1997]).4
The turnover duty, which is implicated here, requires the vessel to
“ ‘exercise ordinary care under the circumstances’ to turn over the ship and its equipment and appliances ‘in such condition that an expert and experienced stevedoring contractor, mindful of the dangers he should reasonably expect to encounter, arising from the hazards of the ship’s service or otherwise, will be able by the exercise of ordinary care’ to carry on cargo operations ‘with reasonable safety to persons and property’ ” (Howlett,512 US at 98 , quoting Federal Mar. Terms., Inc. v Burnside Shipping Co.,394 US 404 , 416-417 n 18 [1969]).
“A corollary to the turnover duty requires the vessel to warn the stevedore ‘of any hazards on the ship or with respect to its equipment,’ so long as the hazards ‘are known to the vessel or should be known to it in the exercise of reasonable care,’ and ‘would likely be encountered by the stevedore in the course*842 of his cargo operations!,] are not known by the stevedore!,] and would not be obvious to or anticipated by him if reasonably competent in thе performance of his work’ ” {id. at 98).
Stated otherwise, the second component of the turnover duty does not require a vessel owner to warn a stevedore/marine contractor of obvious and avoidable dangers on a ship (see Sinagra v Atlantic Ocean Shipping, Ltd.,
On the other hand, where the employer of an injured harbor worker is also the owner of the vessel; namely, a “dual-capacity” defendant, and the harbor worker sues the employer/vessel owner for vessel negligence, “a vessel owner acting as its own stevedore is liable only for negligence in its ‘owner’ capacity, not for negligence in its ‘stevedore’ capacity” (Jones & Laughlin Steel Corp.,
Relying in large part upon Mr. Wollman’s testimony and affidavit, defendants argue that Reinauer may not be held liable as a vessel owner under section 905 (b) since the barge had “effectively” been turned over to Reicon by Reinauer long before the accident occurred. Assuming Reinauer is found to be plaintiffs employer, defendants contend that there is no dual-capacity liability since the barge was being used exclusively for marine construction activities, rather than as a vessel, at the time of the alleged accident.
Plaintiff opposes, contending that Reinauer is liable for vessel negligence under section 905 (b) since it breached the first two Scindia duties of care, whether it was acting in its dual-capacity status as vessel owner, or whether it was a mere vessel owner. Specifically, plaintiff argues that it was Reinauer, and not Reicon, that applied the allegedly defective paint, and thus it was Reinauer which turned over the barge to the dock workers in an unsafe condition. Plaintiff also contends that Mr. Wollman, as “[v]ice [p]resident of a marine tug and barge operations company that operated its own shipyard and fleet of ves
Plaintiff also maintains that Reinauer breached its “active operations” duty because Mr. Wollman, a Reinauer vice-president, was the on-site project supervisor who had significant control over and directed all aspects of the project, and failed to correct the nonfunctional deck coating.
Evidence in the record on this issue is that Mr. Wollman testified that Reinauer is in the oil transportation business and that Reicon is in the marine construction business. He stated that at the time of the accident, Reinauer was the owner of the CB Bergen. In his sworn affidavit, Mr. Wollman asserts that the barge— purchased in October 2000 — is a crane barge constructed and purchased specifically fоr marine construction, which has never been used by Reinauer as part of its marine transportation business.
Mr. Wollman testified that when Reinauer turned over the brand new vessel to Reicon, it was obvious to Mr. Wollman, as an experienced marine contractor, that the deck had not been painted with nonskid paint and that it needed to be. As such, union dock workers employed by Reicon painted the deck of the vessel with nonskid paint on or about October 21, 2000 in Reicon’s yard, located at 1983 Richmond Terrace in Staten Island.
According to Mr. Wollman, after Reicon outfitted the vessel, a Reinauer tugboat transported it for Reicon from Reicon’s yard to the work site at the Department of Sanitation Marine Transfer Station. Once the vessel arrived there, Reinauer did not have any further involvement with the vessel. Mr. Wollman states in his affidavit that the CB Bergen has never been operated as a manned barge and that Reicon had exclusive possession, use and control of the barge, which was utilized solely as a work platform for dock building purposes.
Plaintiff testified that, at the time of his accident, he was a member of a dock builder’s union; that the project on which he
Plaintiff also stated that working with a barge like the CB Bergen was common to the dock building business; that the barge allowed dock builders to access the water side of the pier and gave divers a staging platform from which to work; that the vessel was used “as a platform for dock building materials,” as well as a platform for the dock builders to cut lumber used by the divers; and that the vessel contained a crane, which was used in conjunction with the dock building, and housed two containers, one used as a storage shed for tools аnd equipment and the other as a shanty for the crew. Plaintiff testified that from the time the vessel was brought to the job site it remained there continuously until the date of his accident, and that it was not used for transportation purposes.
Mr. Kevin J. Barcavage, one of plaintiffs supervisors and an employee of Reicon, testified that after the vessel arrived at the work site, Reicon placed matting on the deck for the crane to travel on and equipped the vessel with a container for the storage of tools. He also testified that shortly before plaintiffs accident, he saw hydraulic fluid on the deck of the vessel and a hydraulic saw a few feet away from where plaintiff was standing. Just minutes before his accident, plaintiff had broken the couplings on the saw, which caused hydraulic fuel to spill onto the deck. After the spill, Mr. Barcavage saw plaintiff with rags in his hands, which plaintiff was about to use to clean the spill or which he had already used to clean it.
Despite Mr. Wollman’s testimony that Reinauer turned the barge over to Reicon to apply the nonskid paint, in the court’s view, a question of fact exists as to whether Mr. Wollman was acting for Reinauer, as opposed to Reicon, when the deck was painted, and thus whether Reinauer breached its duty to turn over the barge in a safe condition. In addition, even assuming Reinauer was plaintiffs employer, and thus a dual-capacity defendant, a question оf fact exists as to whether Reinauer performed the painting of the deck in its capacity as vessel owner or employer.
Notably, in support of their contention that they did not breach their turnover duty, defendants argue that to the extent plaintiffs claim is based upon the allegation that the nonskid additive was lacking, Reinauer may not be held liable since it was entitled to rely upon Mr. Wollman’s expertise and experience as a marine construction contractor to discern that allegedly defective condition. Reinauer notes in this regard that Mr. Wollman testified that it was obvious that the deck of the barge had not been painted when Reinauer turned the barge over to Reicon. This argument is rejected. First, Mr. Wollman did nоt testify that he was able to determine whether nonskid paint already applied was defective. More importantly, defendants’ argument disregards plaintiffs main contention that it was Reinauer who performed the deck painting, and that defendants therefore breached the first component of Reinauer’s turnover duty; namely, the failure to turn the barge over in a safe condition. Defendants also fail to respond to this argument in their reply, merely addressing the second component of the turnover duty, the duty to warn. Nor do defendants directly address
Inasmuch as a question of fact exists as to whether Reinauer breached its turnover duty — whether it was acting as mere vessel owner or as a dual-capacity defendant in its vessel capacity — that branch of its motion to dismiss plaintiffs cause of action under section 905 (b) is denied (see Smith v Eastern Seaboard Pile Driving, Inc., 604 F2d 789 [2d Cir 1979] [in dual-capacity pve-Scindia case, wherein plaintiff diver drowned by repairing the vessel, court held vessel owner negligent under section 905 (b) because vessel owner failed to provide a resсue plan and did not arrange for the proper placement of emergency apparatus or provide a ladder]).
In addition, assuming that Reicon was acting as an agent for Reinauer when the deck was painted, a question of fact also exists as to whether Reinauer breached its corollary duty to warn the Reicon dock builders of the inadequacy of the deck covering. As noted, plaintiffs expert and Mr. Barcavage stated that it was customary for the vessel owner to provide the nonskid coating, which raises the question of whether Reicon, acting on behalf of Reinauer, had or should have had some familiarity with the process, including whether it was performed properly. In аddition, plaintiff’s expert opines that the nonskid additive must have sufficient “surface roughness,” to engage the shoe bottom in a manner not unlike sandpaper, raising an issue as to whether Reicon, acting for Reinauer, should have noticed the surface roughness or lack thereof. In this regard, plaintiffs expert asserts that the application of a sand or grit based nonskid additive, which was applied to the deck, was improper because the nonskid additive did not provide adequate surface profile asperities, or rough places, that would sufficiently extend through the hydraulic oil, water and other debris to provide the necessary traction in the working areas of the barge platform. On the other hand, Mr. Barcavage testified that he had no problem with the manner in which the deck had been painted. Thus, an issue of fact exists as to whether the allegedly defective nonskid coating was “known to [Reinauer and/or Reicon] or should [have
Plaintiffs claim that defendants breached the “active operations” duty, however, is not supported by the record. Once the barge was turned over for implementation of the pier rehabilitation project, the record is clear that the barge was used solely for dock building purposes performed by Reicon employee dock builders, and that it was never manned or used by Reinauer or Reicon as part of Reinauer’s marine transportation business.
Finally, a question of fact also exists as to whether Reicon may be held liable for vessel negligence. In this regard, plaintiff properly notes that the record contains a “Certificate of Classification” indicating that Reicon was the owner of the barge on November 16, 2000, before the barge was turned over to the dock builders to commence the rehabilitation project. On the other hand, Mr. Wollman avers in his affidavit that Reinauer was the owner of the barge at the time of turnover, and he submits a “Certification of Documentation” indicating that Reinauer was the owner of the barge on Septеmber 21, 2000, also prior to the time when the barge was turned over to the dock builders at the Marine Transfer Station on January 12, 2001.
In sum, questions of fact exist as to whether Reinauer and Reicon breached their turnover duty, precluding dismissal of plaintiffs section 905 (b) claim.
Defendants also move to dismiss plaintiffs cause of action under Labor Law §§ 200, 240 (1) and § 241 (6) on the grounds that they are preempted by the LHWCA. Section 905 (b) provides, in pertinent part, that “[t]he remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this [act].” Defendants argue that in “dual-capacity” cases such as this case, where a plaintiffs employer is also the owner of the vessel where the injury occurred, the exclusivity provision of section 905 (a) bars an employee from bringing suit under section 905 (b) against a vessel owner acting in its capacity as employer. Defendants assert that since any negligence plaintiff attributes to them is as his employer, and not as vessel owner, the LHWCA benefits plaintiff received pursuant to section 905 (a) are his exclusive remedy, and that therefore plaintiffs state claims are preempted (see Minnick v United States,
In opposition, plaintiff asserts that assuming Reinauer is neither his employer nor the barge owner, then Reinauer is not entitled to an employer’s exclusive remedy protection under section 905 (a) or the limitations on suit set forth in section 905 (b). Under these circumstances, plaintiff contends that it may bring a negligence action against Reinauer under section 933 of the LHWCA which, according to Cammon v City of New York (
But for arguing that Reicon painted the barge deck, defendants do not address this argument in their reply.
As noted above, a question of fact exists as to whether Reinauer or Reicon owned the barge when it was turned over. Moreover, there is a question of fact as to whether Reinauer was plaintiffs employer. In addition, the record reveals that plaintiff was involved in local land-based repair (see Cammon, 95 NY2d at 586, 590). Thus, assuming Reinauer is neither plaintiff’s employer nor owner of the barge, plaintiffs Labor Law causes of action are not preempted (Cammon, 95 NY2d 583, 587-590 [2000] [plaintiffs New York Labor Law § 240 (1), § 241 (6) and § 200 claims against New York City, owner of a marine transfer station, and the general contractor, were not preempted by federal maritime law where plaintiff was injured while engaged
Applying the foregoing, while plaintiff may bring a Labor Law § 240 (1) cause of action, it is dismissed because plaintiff did not sustain a gravity-related injury. With respect to plaintiffs causes of action under section 241 (6) and section 200, as noted above, questions of fact exist as tо whether Reinauer painted the deck of the barge with nonskid paint, and thus created the allegedly dangerous condition, and whether it violated the Industrial Code sections set forth in plaintiffs bill of particulars. Thus, assuming Reinauer qualifies as either a general contractor or an agent thereof, these causes of action are potentially viable (see Sabato v New York Life Ins. Co.,
In sum, that branch of defendants’ motion to dismiss plaintiffs cause of action under 33 USC § 905 (b) and § 933 is denied. That branch of the motion to dismiss plaintiffs Labor Law § 240 (1) cause of action is granted, and that branch of the motion to dismiss plaintiffs Labor Law §§ 200 and 241 (6) causes of action is denied.
Notes
. 33 USC § 905 (b) provides, in relevant part, that “[i]n the event of injury to a person covered under this [act] caused by the negligence of a vessel . . . such person . . . may bring an action against such vessel as a third party.”
. It should be noted that in his opposition papers, plaintiff provides an earlier affidavit of Mr. Wollman, which was submitted in connection with a similar matter in which the court (Alice Schlesinger, J.) found that the plaintiff therein was an employee of both Reicon and Reinauer on the grounds that both corporations acted as a “solitary or singular unit.” In this earlier affidavit, Mr. Wollman stated, inter alia, that Reicon was formed as a corporation in 1998 so that it could hire labor from a certain union for a particular contract which Reinauer was unable to do because of its collective bargaining agreement with a different labor union. Moreover, he stated that Reinauer owned 100% of the stock of Reicon. In spite of this affidavit, in the court’s view, the evidence in the record fails to establish that Reinauer exercised complete dominion and control of Rеicon’s everyday operations such that Reinauer and Reicon may be considered a single entity.
. As to what constitutes vessel negligence, “[t]he Supreme Court has indicated that Congress left to the courts the task of defining the vessel’s duty of care” (Morehead v Atkinson-Kiewit, J/V,
. Plaintiff appears to concede that the last duty is not an issue in this case. In his memorandum of law, he asserts that “[i]n light of the active obligations failurеs[ ] discussed above, the duty to intervene is an irrelevance in this matter.”
. In correspondence, defendants have supplied the court with Emanuel v Sheridan Transp. Corp. (