[Crushed Under Jock Feet Download
Laurice Whack
Will is a terrible beast who loves destroying manthills. The towering titan slowly roams the streets enjoying his absolute power. The large footfalls rocking the land and smashing anything unfortunate to land under his sole. The giant taunts the tiny town, showing how truly pathetic they are in this world. Licking his lips, he finds his first target.
Will bounces up and down on the remains of the structure making sure that nothing remains when he is finished. The jock god quickly smashes another building under that bulbous butt before stretching out and showing off his dirtied soles.
The titan grinds, bounces, and crushes building after building. Laughing and taunting the tinies perishing under his rear. More and more is destroyed under the titanic booty and Will enjoys every second. Feeling his jock tightening, he quickly strips it off and continues the rampage naked.
Taking a seat in the middle of the city. He reaches out and grabs more buildings. His muscles bulge and flex as he tears them apart bearhanded. The structures stand no chance with his horrific power. His killer smile betrays his beautiful face in the process. As he tears open the buildings he grabs the tasty morsels within and swallows them down without a second thought. He gives his belly a good smack before devouring more.
Bovis Lend Lease LMB, Inc. ("Bovis") and Ashland Partners, LLC("Ashland")(together,"the moving defendants") move, pursuant to CPLR 3212, for summaryjudgment dismissing the complaint against them, and for summary judgment on their third-partycontractual and common-law indemnity claims against third-party defendants Finest Window,Inc. (Finest) and Three D Erectors (Three D) (motion seq. no. 002). Plaintiff opposes the motionand cross-moves for summary judgment as to liability on his Labor Law 240(1) claim asagainst the moving defendants.[FN1] Finest and [*2]Three D oppose the moving defendants' motion to the extent itseeks summary judgment on the cross claims for indemnification.
Finest moves, pursuant to CPLR 3212, for summary judgment dismissing plaintiff'snegligence and Labor Law 200, 240 and 241 (6) claims as against it (motion seq.no. 003).[FN2] Plaintiff doesnot oppose the motion and the moving defendants oppose it only to the extent Finest seeks todismiss any cross claims asserted against it by them for contractual indemnity.[FN3]
Plaintiff's decedent(hereinafter referred to as "the decedent") was a union laborer employed by subcontractor ThreeD to perform window installations at a construction project known as Clarett Brooklyn Tower inBrooklyn, New York located at 230 Ashland Place, Brooklyn, NY ("the Project"). Ashland wasthe owner of the site, and hired Bovis as the Construction Manager on the Project. Bovis enteredinto a contract with Finest to install and purchase windows for the Project. Finest, in turn, enteredinto a subcontract with Three D to install the windows.
On the date of the accident, February 5, 2007, Three D was planning to perform somemeasurements for windows on the exterior wall on the third floor of the building. Three D hadpreviously arranged with Bovis to halt the operation of two external construction hoists in orderto perform the measurements on the windows.
Just before to the accident, Three D foreman, John Danzo (Danzo), who superviseddecedent's work on the Project, was standing with Nancy Vazquez (Vazquez), the Bovis ProjectEngineer in charge of hoist shutdown procedures, who was in the process of stopping the hoists.Danzo EBT, at 29-31. According to Danzo, he requested Vazquez to instruct the hoist operatorseither to bring the hoists to the third floor, so that the workers could use the hoist to access theexterior of the building (id. at 33, 48-49), or to bring the hoist to the ground floor.Vazquez EBT, at 79. Vazquez testified that she had been told about the hoist shutdown the weekbefore the incident (id. at 63-66), but she further stated that she never received any typeof training regarding hoist shutdown procedures (id. at 40), nor was she [*3]aware of any written hoist shutdown procedures mandated byBovis. Id. at 88-89.
At the time of the accident, the west hoist, operated by James Vella (Vella), an employee ofBovis, was stopped at the third floor, but the east hoist, operated by Renee Raczka (Raczka), atemporary substitute hoist operator employed by Bovis, had not yet stopped operating the hoist.According to Vazquez at the time of the accident she believed the hoist operators were suppliedwith two-way radios, and she tried to reach Raczka prior to the accident via her radio but she didnot respond. Vasquez EBT, at 81. Vazquez testified that she later learned that the hoist operatorsdid not have the two-way radios, even though it was her understanding that they were suppose tohave them. Id. at 80-84.
In his affidavit, Vella states that, approximately 10 minutes before the accident, Vazquez andDanzo approached him and told him that they wanted to take exterior measurements and not totake the hoist below the fourth floor until notified that all was clear. According to Danzo,Vazquez was attempting to reach Raczka by radio for several minutes to have her bring the easthoist to the third floor when they noticed that the east hoist was descending. Danzo EBT, at33-34.
At the same time that they noticed that the east hoist was descending, Danzo saw plaintiffstanding on the edge of the building slab, outside the hoist gate and in the path of the moving easthoist. Id. at 40-42. Danzo later told the OSHA inspector who investigated the accidentthat he thought that plaintiff went outside the building because he, decedent, thought that thehoists had stopped running. Id. at 78-81. Danzo further stated that he did not believe thatVazquez alerted any of the workers that the hoists were still in operation, and that Vasquez wasin charge of the hoist. Id. After striking plaintiff, the hoist lifted slightly, and decedentrolled off and fell to the bottom of the hoistway. Id. at 43, 47-48. Danzo, who witnessedthe accident, believes that decedent was killed by the crush of the hoist, and was already deadbefore he fell. Id. at 51-53, 64.
According to Danzo, before the accident, plaintiff was on the interior doing work, and thensubsequently he saw him on the exterior edge of the building. Danzo EBT at 109,114-115. Danzo stated that he had told plaintiff that he, Danzo, would let plaintiff know whenthe hoists had been stopped, and at the point they could begin work. Id. at 125.Furthermore, according to Danzo, if the hoists had been stopped, plaintiff's work would havebeen performed farther away from the area from which he fell. Id. at 67-70.
Plaintiff was provided with a lanyard and harness, which he was wearing at the time of theaccident, but which he did not [*4]connect to a tie-off, availableto him directly over his head. Id. at 71, 115-117. Plaintiff's harness was produced atDanzo's deposition, and Danzo testified that Three D employees inspect their harnesses everymorning, and that he could not see anything wrong with plaintiff's harness. Id. at122-123. However, Danzo further stated that he did not believe that having the lanyard tied offwould have prevented plaintiff from being struck with and crushed by the hoist. Id. at74-75.
Raczka, the east hoist operator, testified that she is a licensed and experienced hoist operator,and no evidence has been presented that she was operating the hoist in an unsafe manner. RaczkaEBT, at 18-20. Raczka indicated that she was operating the hoist without a radio, using audiblesignals, including yelling and banging on pipes, which she testified that she understood. Id.at 22.
Vazquez testified that she spoke to someone from the Bovis safety department after theincident, but that she did not know if the description of the accident in the above-quoted accidentreport was the one that she gave. She further stated that she never prepared any written statementabout the accident. Vazquez EBT, at 95-100.
The moving defendants argue that they are entitled to [*5]summary judgment dismissing plaintiff's Labor Law 240(1)claim as the plaintiff's "unforeseeable act of entering the hoist shift before he was told that thehoists were shut down and it was safe to do so was the sole proximate cause of the accident"(moving defendants' supporting affirmation at 10)[FN4]. The moving defendants also argue that theLabor Law 241(6) claim must be dismissed as plaintiff failed to plead any Industrial Codeprovisions sufficient to support the claim. As for claims under Labor Law 200 and forcommon law negligence, the moving defendants assert that they were not negligent as they didnot create any hazardous condition involving the hoist and had no control over how decedentperformed his work.
The moving defendants also argue that they are entitled to summary judgment on theircross-claim against Finest for contractual indemnification, including costs and attorneys' feesbased on a provision in Bovis' subcontract with Finest. They also seek summary judgment ontheir cross claim against Three D for common law indemnity.
Plaintiff opposes the motion and argues that it is entitled to summary judgment on its LaborLaw 240 claim. With respect to the 240(1) claim, plaintiff argues that the recordestablishes as a matter of law that the hoist, which struck and killed decedent was not operated ina safe manner. Specifically, plaintiff argues that record establishes that Bovis had no hoist shutdown procedure, failed to train Vasquez in such procedures, and violated its own practice byfailing to provide the hoist operators with two-way radios. Moreover, plaintiff asserts that underthese circumstances, it cannot be said that any actions or omissions by the decedent were the soleproximate cause of his death.
As for the negligence claim and the claim under Labor Law [*6]200, plaintiff argues that the record raises factual questions as towhether Bovis negligently operated the hoist and whether the failure to properly supervise itsoperation were a substantial factor in causing the accident. Plaintiff also relies on the contractbetween Ashland and Bovis which gives Bovis, as the construction manager for the Project, soleresponsibility over "construction means, methods, techniques, sequences and procedures and forcoordinating all portions of work under the contract..."
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