Opinion
No. 2013/2767.
01-06-2015
Brenan Brant and ANDREA BRANT, Plaintiffs, v. Prime Wines Corp., Defendant.
Marc C. Panepinto, Esq., for plaintiffs. Melissa A. Foti, Esq., for defendant.
Marc C. Panepinto, Esq., for plaintiffs.
Melissa A. Foti, Esq., for defendant.
Opinion
PATRICK H. NEMOYER, J.
Plaintiffs commenced this action on various legal theories to recover damages for personal injuries sustained by plaintiff-husband, Brenan Brant (hereinafter plaintiff, in the singular; the claim of Andrea Brant is derivative), as a result of a workplace accident. The accident occurred on May 16, 2012 at a construction site. Defendant, the owner of the site, had contracted with plaintiff's employer, Conquer Acoustical Company, for the latter to serve as general contractor with regard to the completion of a building intended to house a retail store. Conquer's contractual responsibilities included the installation of the building's HVAC system (work delegated to a subcontractor), one component of which was a large air-conditioning unit eventually to be placed by means of a crane atop the roof of the building. The unit was at least six feet long, five feet wide, and four feet tall and weighed 2482 pounds. Plaintiff, a carpenter whose work primarily involved the installation of the interior walls and ceiling in the building, had at the time of the accident been detailed by his employer, along with plaintiff's foreman and a coworker, to unload the air-conditioning unit from a flatbed delivery truck standing in the parking lot behind the store under construction. That unloading was to be accomplished via the use of a forklift that Conquer had rented for the project.
One witness estimated the unit at 12 feet long and 6 feet wide; yet a third witness at about nine feet long.
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According to plaintiff and his coworkers, the accident occurred after the forklift had been used to lift the air-conditioning unit, which had been shipped on a pallet or perhaps atop dunnage beams, off the rear of the flatbed, which was four to five feet above the ground. Just after the unit was lifted off the flatbed, but before the accident, the truck was driven out from beneath the unit. At the time of the accident, and at his foreman's direction, plaintiff was standing on the pavement on one side of the forklift, beside the unit being lifted, whereas his foreman was standing on the other side of the unit. The men had deployed themselves in that manner in order to help balance or steady the unit atop the forks as the unit was being moved via the forklift. Given the size of the unit and the tilted-back orientation of the forks, the forks were not long enough to extend the full width of the unit as it was being hoisted and moved (plaintiff said they extended only about halfway under the unit). By various accounts, the accident occurred some minutes into the forklifting operation, or as soon as the forklift operator (plaintiff's coworker) “made a movement” with the forklift away from its initial hoisting location. According to plaintiff, the bottom of the unit was still raised to about his eye level at the time of the accident. According to the forklift operator, the accident occurred just as the unit was being lowered on the forks from its initial height of about five feet to about three feet off the ground. According to the foreman, the accident occurred when the forklift operator jerked the forklift's directional controls the wrong way. Whatever the case, it appears by the various accounts that the accident occurred when the extreme weight and/or top-heaviness of the unit, which was not tied to the forklift in any way, caused the forklift to tip forward. According to plaintiff and the other men, as the rear wheels of the forklift lifted off the ground, the heavy unit started to slide off the forks, towards plaintiff. As a consequence of that, plaintiff attempted to hold the unit in place, to keep it from sliding further. However, as plaintiff strained bodily to hold the unit in place, or perhaps as he moved backwards to avoid being crushed by the unit as it slid towards him, plaintiff ruptured his right Achilles tendon, causing him to fall to the ground. The air-conditioning unit thereafter fell to its side off the forks to the ground, albeit not on plaintiff.
Now before the Court is plaintiff's motion for summary partial summary judgment on liability pursuant to Labor Law § 240(1). The motion is opposed by defendant, predominantly on two grounds: first, that the statute as a matter of law is inapplicable to a mishap occurring during the unloading of a truck (defendant does not cross-move for summary judgment dismissing the section 240[1] claim on that basis, however); and second, that even assuming the applicability of the statute, there remain triable questions of fact as to whether plaintiff failed to use an allegedly available safety device (i.e., a chain) that allegedly would have prevented his injury, which failure allegedly constituted the sole proximate cause of the accident. Upon its consideration of the parties' respective submissions, this Court renders the following determinations:
Labor Law § 240(1) provides that “[a]ll contractors and owners and their agents ..., in the erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure[,] shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.” The extraordinary protections of Labor Law § 240(1) extend to the special hazards “inherent in a particular task because of the relative elevation at which the task must be performed” (Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513 [1991] ), including such “specific gravity-related [risks] as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured” (Melber v. 6333 Main Street, 91 N.Y.2d 759, 763 [1998], quoting Ross v. Curtis–Palmer Hyro–Elec. Co., 81 N.Y.2d 494, 501 [1981] ). The Court of Appeals' decision in Runner v. New York Stock Exchange Inc. (13 NY3d 599, 603–605 [2009] ) makes clear, however, that those are not the only risks encompassed by the protections of the statute. Thus, a construction worker may recover under the statute where he shows “that, at the time the object fell, it was being hoisted or secured” (Mendez v. Jackson Dev. Group, Ltd., 99 AD3d 677, 678 [2d Dept 2012], quoting Narducci, 96 N.Y.2d at 268 ; see Kretowski v. Braender Condominium, 57 AD3d 950, 950–951 [2d Dept 2008] ) or “required securing for the purposes of the undertaking” (Mendez, 99 AD3d at 678, quoting Outar v. City of New York, 5 NY3d 731, 732 [2005] ; see Roberts v. General Elec. Co., 97 N.Y.2d 737, 738 [2002] ; see generally Quattrocchi v. F.J. Sciame Corp., 11 NY3d 757, 759 [2008] ). An object will be deemed one that “required securing for the purposes of the undertaking” where the nature of the work being performed at the time of the accident posed a “significant risk” that the object in question might fall and cause injury to a worker such as the plaintiff (Pritchard v. Tully Constr. Co., Inc., 82 AD3d 730, 731 [2d Dept 2011] ; see Cardenas v. One State St., LLC, 68 AD3d 436, 437 [1st Dept 2009] ; Lucas v. Fulton Realty Partners, LLC, 60 AD3d 1004,1006 [2d Dept 2009] ; Salinas v. Barney Skanska Constr. Co., 2 AD3d at 621–622 [2d Dept 2003] )—in other words, where the situation is one in which it may be concluded that “a hoisting or securing device of the kind enumerated in the statute would have been necessary or ... expected” (Narducci, 96 N.Y.2d at 268 ; see Smith v. LeFrois Dev., LLC, 28 AD3d 1133 [4th Dept 2006] ).
In the end, in order to recover under the statute, an injured worker must prove both that the defendant owner or responsible contractor or agent violated its nondelegable duty to ensure that a pertinent safety device was “so constructed, placed and operated as to give proper protection” to the worker (Labor Law § 240[1] ) and that such violation was a proximate cause of the worker's injury (see Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287 [2003] ; Weininger v. Hagedorn & Co., 91 N.Y.2d 958, 959–960 [1988], rearg. denied 92 N.Y.2d 875 [1998] ; Felker v. Corning Inc ., 90 N.Y.2d 219, 224 [1997] ; Zimmer v. Chemung Co. Performing Arts, 65 N.Y.2d 513, 524 [1985], rearg. denied 65 N.Y.2d 1054 [1985] ). Causation is established where the violation was a “substantial cause of the events which produced the injury” (Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315 [1980], rearg. denied 52 N.Y.2d 784 [1980] ; see Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 561–562 [1993] ). On the other hand, the statutory prerequisites to liability “do not exist if adequate safety devices are available at the job site, but the worker either does not use or misuses them” (Robinson v. East Medical Center, LP, 6 NY3d 550, 554 [2006] ). However, in order to thus demonstrate that a plaintiff's own conduct was the sole proximate cause of the accident, a defendant must establish that “the safety devices that plaintiff alleges were absent were readily available at the work site, albeit not in the immediate vicinity of the accident, and [that] plaintiff knew [that] he was expected to use them but for no good reason chose not to do so, causing an accident” (Gallagher v. New York Post, 14 NY3d 83, 88 [2010] [bracketed material supplied]; see Kin v. State of New York, 101 AD3d 1606, 1607 [4th Dept 2012] ; Ganger v. Anthony Cimato/ACP Partnership, 53 AD3d 1051, 1052 [4th Dept 2008] ). In that event, the “plaintiff's actions [will be deemed to be] the sole proximate cause of his injuries, and consequently ... liability under Labor Law § 240(1) [will] not attach” (Weininger, 91 N.Y.2d at 960 [bracketed material supplied]; see Robinson, 6 NY3d at 554 ; Montgomery v. Federal Express Corp., 4 NY3d 805, 806 [2005] ; Cahill v. Triborough Bridge & Tunnel Auth., 4 NY3d 45, 40 [2004]; Blake, 1 NY3d at 289–292 ; Arnold v. Barry S. Barone Const. Corp., 46 AD3d 1390, 1390–1391 [4th Dept 2007], lv denied 10 NY3d 707 [2008] ). Absent such a complete severing of the causal relationship between the alleged statutory violation and the injury, however, the plaintiff's comparative fault is immaterial to the defense of an action under section 240(1) (see Bland v. Manocherian, 66 N.Y.2d 452, 459–461 [1985] ; Zimmer, 65 N.Y.2d at 521 ). Moreover, the fundamental rule is that “the nondelegable duty imposed upon the owner and general contractor under Labor Law § 240(1) is not met merely by providing safety instructions or by making other safety devices available, but by furnishing, placing and operating such devices so as to give [a worker] proper protection” (Luna v. Zoological Socy. of Buffalo, Inc., 101 AD3d 1745, 1746 [4th Dept 2012], quoting Long v. Cellino & Barnes, P.C., 68 AD3d 1706, 1707 [4th Dept 2009] [internal quotation marks omitted] ).
Applying the foregoing principles, this Court concludes that plaintiff sustained his initial burden on the motion of demonstrating his entitlement to judgment as a matter of law on the issue of defendant's liability under section 240(1). The Court further concludes that defendant failed to raise a triable issue of fact either as to whether the statute was violated or whether such violation was a proximate cause of plaintiff's injury.
Concerning the applicability of the statute, the Court concludes that, as a matter of law, defendant was the owner of the construction site and, as such, subject to statutory liability for any violation of its non-delegable duties (see Hutchins v. Finch, Pruyn & Co. Inc., 267 A.D.2d 809, 810 [3d Dept 1999], lv denied 94 N.Y.2d 762 [2000] ; see generally Gordon, 82 N.Y.2d at 559–560 ). The Court further concludes, as a matter of law, that plaintiff was on the date of the accident engaged in a protected activity under section 240(1), namely, the “erection of a building or structure” (Dahl v. Armor Bldg. Supply, 280 A.D.2d 970 [4th Dept 2001] ). The Court rejects defendant's contention that the statute is as a matter of law inapplicable to this case because plaintiff was injured while unloading a truck. Defendant certainly is correct in asserting that even those injuries occurring as a direct result of falls of persons or objects during truck unloading operations are not necessarily, universally, or automatically covered by the statute (see e.g. Toefer v. Long Is. R.R., 4 NY3d 399, 408–409 [2005] ; Cabezas v. Consolidated Edison, 296 A.D.2d 522, 523 [2d Dept 2002] ). However, case law teaches that where, as here, the plaintiff was injured while unloading materials that are being hoisted from a truck or otherwise around a job site for subsequent incorporation into the building or structure then undergoing construction, the plaintiff will be deemed to have been injured while engaged in such protected construction activity (see Hyatt v. Young, 117 AD3d 1420, 1420–1421 [4th Dept 2014], citing Orr v. Christa Constr., 206 A.D.2d 881, 881 [4th Dept 1994] ; see also Gonzalez v. Glenwood Mason Supply Co., Inc., 41 AD3d 338, 339 [1st Dept 2007] ; cf. Curley v. Gateway Communications Inc., 250 A.D.2d 888, 890 [3d Dept 1998] [statutory liability imposed for injury sustained during building materials unloading operations not involving hoisting]; see generally Prats v. Port Auth. of New York and New Jersey, 100 N.Y.2d 878, 882 [2003] [held: “The intent of the statute [i]s to protect workers employed in the enumerated acts, even while performing duties ancillary to those acts”] ).
The Court further concludes, as a matter of law, that plaintiff was injured, as required in order to give rise to liability under the statute, as a result of a gravity- and significant-elevation-differential-related risk, i.e., the risk that the air-conditioning unit being hoisted from the truck and moved about the work site by means of the forklift would fall off the forks (see DiPalma v. State of New York, 90 AD3d 1659, 1660 [4th Dept 2011] [worker injured when large “skid box” containing concrete debris slid one to two feet off forklift and struck him held entitled to partial summary judgment on liability under section 240(1) ], citing Wilinski, 18 NY3d at 4, and Runner, 13 NY3d at 603 ). In arriving at its holding in DiPalma, the Fourth Department quoted Runner (id. ) for its holding that “the single decisive question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” (DiPalma, 90 AD3d at 1660 [internal quotation marks omitted] ). In this case, the existence or occurrence of that risk is conclusively established by the fact that the air-conditioning unit wound up falling off the forks, and here, as in DiPalma, “it cannot be said that the elevation differential was de minimis,” especially given the extreme weight of the unit and its at least three-foot distance off the ground immediately preceding the accident (see id. at 1660, citing Runner, 13 NY3d at 605 ). Moreover, on this record, it cannot be gainsaid that plaintiff was injured as a result of that very risk, more particularly, in the course of unsuccessfully trying to prevent the air-conditioning unit from sliding and eventually falling off the forks to the ground, or in the course of attempting to avoid being struck by it as it fell. Under the current state of the case law, it matters not that the air-conditioning unit did not free-fall on top of plaintiff (see Runner, 13 NY3d at 602–605 ).
Finally, the Court concludes, as a matter of law, that plaintiff's accident occurred because of the absence or inadequacy of one or more devices of the type listed in the statute, i.e., “hoists, stays, ... slings, hangers, blocks, pulleys, braces, irons, ropes,” or, as defendant itself posits it, a chain, one or more of which devices ought to have been furnished, “placed and operated as to give proper protection to” plaintiff (Labor Law § 240[1] ). Given that conclusion, the Court must conclude, as a matter of law, that the violation of the statute was at least a proximate cause of plaintiff's accident and injury. In other words, the Court must reject, as a matter of law, defendant's attempt to raise a triable question of fact as to causation by positing that plaintiff's failure to use an allegedly available safety device, i.e ., the aforementioned chain, severed the causal connection between the alleged violation of the statute and plaintiff's injury (see Luna v. Zoological Soc. of Buffalo, Inc., 101 AD3d 1745, 1746 [4th Dept 2012] ; Kin v. State of New York, 101 AD3d 1606, 1607–1608 [4th Dept 2012] ; Handville v. MJP Contrs., Inc., 77 AD3d 1471 [4th Dept 2010] ). It seems to the Court that defendant's contention misses the major thrust of the case law in this area, which is that the causal connection between the statutory violation and the injury is severed only when plaintiff's conduct may be deemed to have been the sole proximate cause of his injury, to the complete exclusion of any alleged failure on the part of the responsible owner or contractor to assure the proper use, placement, and operation of one or more safety devices. As the Court of Appeals elucidated in Blake (1 NY3d at 290 ):
“Under Labor Law § 240(1) it is conceptually impossible for a statutory violation (which serves as a proximate cause for a plaintiff's injury) to occupy the same ground as a plaintiff's sole proximate cause for the injury. Thus, if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it. Conversely, if the plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation.”
This case is distinguishable from those in which the plaintiff's solitary or singular conduct in failing to use an available personal safety device, such as a ladder or safety line available elsewhere on site (see Montgomery, 4 NY3d at 806 ), or in misusing a particular ladder or other protective device of which he had personally availed himself (see Robinson, 6 NY3d at 554 ), is deemed to supersede the defendant's violation of the statute in causal terms. Here, in helping to unload the air-conditioning unit from the flatbed truck by means of the forklift, plaintiff was engaged in a clearly collaborative enterprise with his foreman and coworker. It seems to the Court both impossible and unfair to charge plaintiff alone with the responsibility of seeing to it-in the immediate presence of his foreman-that an allegedly available chain was employed to tie the air-conditioning unit to the forks of the forklift and thereby try to avoid or prevent what eventuated. Self-evidently, the accident is at least to some extent causally attributable to the crew's failure to use a more suitable or capable hoisting device (and that failure likewise cannot be ascribed solely or uniquely to plaintiff), meaning that any alleged misconduct of plaintiff in the scenario was at most merely one of several contributing causes of his injuries. The Court reaches the foregoing conclusions without even considering the total absence of any evidence on this record that plaintiff was specifically instructed that he himself was supposed to employ a chain to secure the air-conditioning unit to the forklift before someone else used or moved the forklift in such a way as to cause its load to topple toward plaintiff.
In any event, this Court has serious doubts that the workers' use of the allegedly available chain would have prevented plaintiff's injury in the manner hypothesized by defendant. It seems to the Court that, irrespective of whether or not a chain was or had been used, the accident was and would have been caused by the inadequacy of the hoisting device being employed, i.e., the forklift, which obviously proved too small and light for the weight of the object being hoisted. Again, the accident is at least somewhat causally attributable to the men's failure to use a more suitable hoisting device. Just as important, it seems to the Court that the use of a chain would not have prevented the forklift and its top-heavy load from nonetheless tipping, giving rise to the attendant danger that the heavy unit might nonetheless forcefully strike the ground (again, the unit was indisputably longer and wider than the forks). It thus seems to the Court that the use of a chain would not have prevented plaintiff from either attempting to keep that from happening or attempting to protect himself from the consequences of that happening, in either case thereby injuring himself in precisely the same manner in which he did in this instance. Moreover, although defendant argues that the use of the chain would have prevented the air-conditioning unit from falling off the forks, the Court finds it necessary to point out plaintiff was injured not when (or because) the air-conditioning unit eventually fell off the forks, but rather before that time, upon (and as a result of) the initial tipping of the entire forklift and its load. In other words, the Court cannot conclude under the circumstances that the failure of the plaintiff—or plaintiff or the other workers—to use the chain was even a proximate cause, let alone the sole proximate cause, of plaintiff's injury.
Accordingly, the motion of plaintiffs for partial summary judgment on liability under Labor Law § 240(1) is GRANTED.
All counsel are to report for a status conference to be held on February 5, 2015, at 9:00 a.m., in Part 34, at 50 Delaware Avenue.
SO ORDERED.