In a decision dated June 29, 2018, the Hon. Robert A. Bruno granted our clients, Whole Foods Market Group, Inc. and Construction Management & Builders, Inc., summary judgment dismissing the plaintiff’s common law negligence and Labor Law §200 claims as well as all counterclaims against them. The Court also awarded our clients summary judgment on their contractual and common law indemnity claims against the third-party defendants. Furthermore, the Court denied the plaintiff’s cross-motion for summary judgment on his Labor Law §241(6) cause of action. At the time of the accident, the plaintiff was performing steel beam installation work as an employee of the second third-party defendant, Piermount Iron Works, Inc. He was seated on a horizontal steel beam, one end of which was attached to a vertical column, while the other end was held by a crane. While the plaintiff was seated on the beam, he attempted to attach the end held by the crane to a vertical column when the beam swung upward and the plaintiff struck another beam that was approximately five feet above him.
Whole Foods and Construction Management moved to dismiss the common law negligence and Labor Law §200 claims against them because the accident arose out of the means and methods by which the plaintiff was performing his work for his employer, Piermount. The Court agreed and dismissed the Labor common law negligence and Labor Law §200 claims against our clients. Moreover, the Court also dismissed all counterclaims against our clients because it determined that they were not negligent as a matter of law. Whole Foods and Construction Management also moved for summary judgment on their contractual indemnity claims against the plaintiff’s employer, Piermount, based on the contract which provided for indemnification for bodily injury to a Piermount employee “arising out of, resulting from, connected to or relating to the performance or non-performance of the Work.” The Court granted summary judgment the contractual indemnity claims against Piermount because the plaintiff’s injury arose out of or was related to the performance of his work. Whole Foods and Construction Management also moved for summary judgment on their common law indemnity claims against the crane operator, JV Trucking & Rigging, LLC. They argued that JV Trucking & Rigging, LLC was negligent because its crane operator continued to hoist the beam upward while the plaintiff was on it despite the fact that the crane operator was aware that there was already significant weight on the beam. In support of the common law indemnity claims, Whole Food and Construction Management submitted the affidavit of a crane operation and safety expert who opined that the rapid, sudden and jumping movement of the beam was due to a significant amount of preexisting tension and that the continued raising of the beam caused it to suddenly jump upward. Accordingly, the Court found that Whole Foods and Construction Management established prima facie negligence on the part of JV Trucking & Rigging, LLC and awarded our clients summary judgment on their common law indemnity claims.
Furthermore, the plaintiff served a cross-motion seeking summary judgment on his Labor Law §241(6) cause of action predicated upon Industrial Code Rules §23-2.3(a)(1) (structural steel members shall not be forced into place), §23-8.1(f)(5) (mobile cranes, tower cranes and derricks shall not hoist, lower, swing or travel while any person is located on the load or hook) and §23-8.1(f)(2) (there shall be no sudden acceleration or deceleration of the moving load unless required by emergency conditions). In opposition, Whole Foods and Construction Management argued that there was a question of fact regarding the plaintiff’s comparative negligence, i.e., the plaintiff disregarded instructions to pause the work and get off the beam and remained on the beam, continued trying to wedge the beam into place and improperly signaled the crane operator to lift the load. The Court denied the plaintiff’s cross-motion seeking summary judgment on his Labor Law §241(6) cause of action due to issues of fact regarding the plaintiff’s comparative negligence. Accordingly, our clients’ motion was granted in its entirety and the plaintiff’s cross-motion was denied in its entirety.
James Brooks v. Whole Foods et al., Index No. 600708/13 (Nassau Co. Sup. Ct., June 29, 2018)