Summary
observing that violation of safety standards could be "considered as some evidence of negligence . . . if the violation was a substantial factor in bringing about the occurrence"
Summary of this case from Johnson v. Bon-Ton DeptOpinion
December 23, 1994
Appeal from the Supreme Court, Onondaga County, Reagan, J.
Present — Green, J.P., Wesley, Callahan, Doerr and Boehm, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in granting that part of defendants' motion for partial summary judgment seeking dismissal of plaintiffs' causes of action for damages for an ear injury under Labor Law § 200 and common-law negligence. There was conflicting evidence sufficient to raise an issue of fact whether defendants assumed supervisory control over the work of the employer of plaintiff husband (see, Houde v Barton, 202 A.D.2d 890, 892, lv dismissed 84 N.Y.2d 977; Rapp v Zandri Constr. Corp., 165 A.D.2d 639, 642; Shaheen v International Bus. Machs. Corp., 157 A.D.2d 429, 434).
The court also erred in denying plaintiffs' cross motion for leave to serve an amended bill of particulars to allege violations of OSHA regulations with regard to plaintiffs' causes of action under Labor Law § 200 and common-law negligence. Although we have held that OSHA regulations cannot provide the basis for a Labor Law § 241 (6) cause of action (see, e.g., Pellescki v City of Rochester, 198 A.D.2d 762, lv denied 83 N.Y.2d 752), there is no reason that a violation of OSHA regulations, like other Federal or State regulations, should not be considered as some evidence of negligence under Labor Law § 200 and the common law if the violation was a substantial factor in bringing about the occurrence (see, PJI 2:29 [1993 Supp]).
The court further erred in denying that part of defendants' motion for partial summary judgment seeking dismissal of plaintiffs' Labor Law § 241 (6) cause of action for the ear injury. There is no specific provision of the Industrial Code that would have required that plaintiff husband have ear protection on this welding job, and thus plaintiffs' section 241 (6) cause of action for the ear injury must fail (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 505). The court also erred, therefore, in allowing plaintiffs to use Industrial Code rule 23 (12 N.Y.CRR part 23) as some evidence of defendants' negligence.