In Addonisio v. City of New York, the Appellate Division, First Department modified the trial court’s ruling and vacated the dismissal of plaintiff’s Labor Law § 241(6) claim against the City of New York and his Labor Law § 200 and common-law negligence claims against Con Ed. It affirmed, however, the dismissal of plaintiff’s Labor Law § 241(6) claims against Verizon and Con Ed.
Plaintiff “was injured when, to excavate a roadway to install telecommunications equipment, he used a power saw to cut into a street intersection and struck a cable encased in a concrete conduit, owned by Con Ed, which electrocuted him.”
The court rejected defendants’ argument that they should not be liable on the ground that plaintiff “cut further below ground than the maximum permissible depth and that this violation was the superseding cause of the injuries that occurred when his saw came into contact with the live cable”. Rather:
The risk that a worker would perform such an act was “the very reason” that defendants owed the worker a duty to comply with any safety standards applicable to the cable. Although the testimony of plaintiff’s supervisor indicated that plaintiff had been warned of a live cable underground nearby, defendants failed to establish that plaintiff had actual knowledge of the hazard, rendering his conduct so reckless that it was the superseding or sole proximate cause of his accident.
The court also held that the trial court should not have dismissed plaintiff’s Labor Law § 200 and common-law negligence claims against Con Ed:
The evidence raises an issue of fact whether Con Ed created a dangerous condition that caused plaintiff’s accident. Con Ed admitted that it installed the cable originally and did not install a protective plate above it. Con Ed’s accident report attributed the accident, in part, to the lack of such a plate and the shallow depth of the cable.
Con Ed and Verizon were not liable under Labor Law § 241(6) “since neither one was an owner, contractor, or statutory agent.” Furthermore:
Plaintiff’s argument that Con Ed had a property interest in the site of the accident below ground is unavailing. Although a defendant can be deemed an owner for purposes of the statute without holding title to the property, Con Ed is not an owner under these circumstances, since there is no evidence that it contracted to have the work performed or had the authority to control the work site. Similarly, although Verizon engaged plaintiff’s employer to perform the excavation work in which plaintiff was engaged when the accident happened, the evidence indicates that plaintiff’s employer was the only entity with the requisite excavation permit, and Verizon did not have the right to control the site.
As to plaintiff’s Labor Law § 241(6) claim against the City of New York, the court held:
The City failed to demonstrate the inapplicability of, or its compliance with, Industrial Code (12 NYCRR) § 23-1.13(b)(4), the sole regulation on which plaintiff relies for his Labor Law § 241(6) claim. In any event, plaintiff raised issues of fact whether his accident was caused by a violation of the provision by submitting affidavits by two experts who explained that the cable was not de-energized, grounded, or effectively insulated, and that plaintiff was not provided with insulated protective gloves, body aprons and footwear while using a power saw that might make contact with underground electric power lines
Finally, the court held that there was no basis for liability against defendants NYC & LI One Call/Dig Safely and One Call Concepts based on Con Ed’s failure to fully mark the intersection where plaintiff was injured. A transcript of a conversation between plaintiff’s employer and the One Call operator indicated that One Call followed instructions, and properly transmitted relevant marking information to Con Ed.