Rizzuto v. L.A. Wenger Contr. Co

In Rizzuto v. L.A. Wenger Contr. Co., 91 NY2d 343 [1998] the Court found a triable issue as to whether the site owner had "control over the methods of the subcontractors and other worksite employees" by virtue of its ability to coordinate the workers' activities, its capacity to exclude workers from working in certain areas of the work site, or its authority to direct workers to refrain from working while another potentially hazardous activity was taking place in a particular immediate area. In Rizzuto, the Court of Appeals dealt with whether coordinating multiple parties constituted control for the purposes of section 200. The case involved the rehabilitation of a bus depot run by the New York City Transit Authority, during which time the facility remained fully operational. Plaintiff, employed by a subcontractor, was in the midst of replacing a submersible pump in the fuel station area and was working 10 to 12 feet from a Transit Authority employee who was pressure testing an underground tank for leakage. Diesel fuel suddenly erupted from the tank spraying the area, and Mr. Rizzuto slipped on it and was injured. Rizzuto sued the general contractor, L.A. Wenger Company. The Court of Appeals reversed the lower courts below, holding that a triable issue of fact existed with respect to the applicability of section 200: "[Did defendant have] control over the methods of the subcontractors and other worksite employees in the sense that the defendant had the ability to coordinate the work activity of its subcontractors and the Transit Authority, had the capacity to exclude the Transit Authority from working in the fuel station area of the depot, or had the authority to direct either its subcontractors or the Transit Authority to not engage in an operation while another potentially hazardous activity, i.e., pressure-testing an underground fuel tank, was taking place within the immediate area "? [91 NY2d at 353].