Kibitzing can be dicey. If you want to saddle a contractor with full responsibility for safe working conditions at your facility, then don’t act like you’re still in charge. Is it worth risking megabucks just to put your two cents in?

Ten years ago, Monroe County, N.Y., used a state matching grant to upgrade its recycling center. After replacing scales and the container sorting line and adding a mixed paper sorting screen and a second baler, the county could handle all clean paper instead of just a few paper items. The center currently processes about 175 tons of curbside recyclable material (70 percent paper) per day, according to county sources.

Since the upgrade, Cascades Recovery Inc. (formerly Metro Waste Paper Recovery) has operated the facility under an agreement with the county, giving Metro “complete . . . responsibility for the

Facility, its . . . materials, equipment and personnel engaged in the . . . work and [freedom to] perform its work [using] its own methods . . . subject to limited review authority by the County.”

Notably, however, while the agreement made the contractor accountable for maintenance and safety, the county retained “the right of access . . . to determine compliance by [Metro] with the terms and conditions of the Agreement.” Moreover, the agreement required Metro to submit for the county’s approval the “plant operating procedures, including maintenance, staffing, health and safety.”

John Gronski, employed by Metro as a mechanic, was seriously injured when a one-ton paper bale fell from a stack of other bales and landed on him while he was walking through the facility. Following its investigation, the federal Occupational Safety and Health Administration cited Metro for violating a regulation prohibiting hazardous conditions for bundled material stored in tiers.
Gronski filed suit alleging that the county negligently failed to prevent unsafe stacking and storage of the bales and allowed a defective baler to be used at the recycling center, which contributed to the accident. The county asked the trial judge to dismiss the case, arguing it had relinquished all control over operations to Metro and was not contractually obligated to address unsafe conditions at the facility.

Opposing the county’s request, Gronski’s attorneys offered the deposition testimony of county engineer Russell Rutkowski, who said his responsibilities included visiting the facility on a weekly basis to assure Metro’s compliance with the agreement. When questioned about his oversight authority on safety matters, Rutkowski on the one hand denied he had any say-so but, on the other, admitted informing the facility manager about conditions he and other county employees observed. He also testified that he had seen bales stacked nine feet high outside of designated storage areas, but was unaware they presented an OSHA violation.

The trial judge ruled in favor of the county, concluding that the contract did not create a duty to maintain a safe environment for Metro employees. “Metro Waste was responsible for all safety issues,” he said. The county “relinquish[ed] control of the premises and is not . . . obligated to repair unsafe conditions [and] is not liable . . . for personal injuries caused by an unsafe condition on the premises.” An intermediate level appeals court agreed.

But the state’s highest court, by a 4-3 margin, saw things differently. “Not only . . . the terms of the agreement but . . . the parties’ course of conduct” determines if the county ceded control over the property, thereby relieving it of liability for dangerous conditions, the opinion said. Rejecting the lower courts’ conclusion that the county handed over control of the recycling center to Metro, the decision sends the case back to the trial court for testimony and other evidence on whether the county, by words and deeds, controlled the facility to the extent it was obliged to guard against the hazard that caused Gronski’s injury.

[Gronski v. County of Monroe, 2011 NY Slip Op 08227, Nov. 17, 2011]


Barry Shanoff is a Rockville, Md., attorney and general counsel of the Solid Waste Association of North America.

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: shanoff@knopf-brown.com.