Opinion
112963/2007.
March 4, 2010.
MEMORANDUM DECISION
In this personal injury action, plaintiff Robert Chamberlin ("plaintiff') moves pursuant to CPLR 3212 for summary judgment on his Labor Law §§ 240(1) and 241(6) claims against defendants Port Authority of New York and New Jersey (the "Port Authority") and Phoenix Constructors ("Phoenix"), the owner and general contractor of the accident site, respectively. Factual Background
The Answer of the defendants is on behalf of "Port Authority of New York and New Jersey and Phoenix Constructors, Joint Venture."
This action arises from a work-site accident that took place on June 22, 2007 during the construction of the World Trade Center transportation hub. Prior the accident, Phoenix retained plaintiff's employer, Skanska Mechanical Structural ("Skanska"), to perform structural steel erection at the premises. At the time of the accident, the construction phase consisted of a steel frame, approximately five stories, for the temporary access area to the PATH train.
Plaintiff was an ironworker, under the supervision of his foreman, John Costello ("Costello"). Plaintiff was known as a "connector" in the raising gang and his partner was Vinny Bifulco ("Bifulco"), also a connector. The raising gang was erecting steel beams into previously erected beams known as headers. At the time of the accident, plaintiff was standing on a steel beam above ground level in position to erect another beam.
Plaintiff testified that the area was wet, as water had been coming down in certain places from a wall in "waterfall" like fashion. Plaintiff saw laborers "sweep the water away but it would come back." Thus, the beam plaintiff was standing on had mud and water because his "feet was tracking it up there."
Michael Rasmusen ("Rasmusen"), the "hooker-on" then attached a "choker" (a piece of braided steel cable with an eye on each end) to the beam, and attached the crane hook to the choker. Plaintiff testified that the beam "usually comes up in a quite slow and controlled manner" and "move[s] smoothly without bouncing around." However, when Rasmusen "put the choker on the beam and attached the crane hook to the choker, and Tony gave the signal to begin raising the piece . . . for some reason it came up faster than usual and was really swinging around . . . bouncing like a yo-yo . . . jumping all over the place as much as two, three feet up and down." Plaintiff "went to try to get [his] hands on the piece . . . reaching out to get [his] hands on it to control it" and the "knife edge [plate sticking off one of end of beam] was swinging right towards [his] midsection." Plaintiff then began backing up to try "to get away from it before it clobbered" him. He lost his balance, his feet slipped, and he "went down." Plaintiff testified that the beam "was off level" because it "was choked in the wrong place."
Plaintiff's Motion
Plaintiff argues defendants violated Labor Law § 240(1) by failing to provide ancillary devices to attach a safety belt causing plaintiff to fall from an elevated worksite. Plaintiff contends that it is undisputed that plaintiff, at the time of the accident, was a union ironworker engaged in the erection of a building and falls within the class of persons Section § 240 was designed to protect. Further, plaintiff fell approximately seven feet off a steel beam, i.e. an elevated work surface. Plaintiff contends that the statute was violated in that the safety harness provided failed to provide proper protection. According to all witness accounts, the accident report by the general contractor, and photographs of the accident, there were no stanchions, safety cables, lifelines, fall arrest systems, or any safety devices to which plaintiff could tie his belt to prevent his fall from an elevated worksite. Thomas Tyler, the Phoenix Quality Control Manager and Richard Behnke, the Port Authority's Engineer of Construction conceded that no safety devices were in place at the time of the accident. Also, plaintiff slipped due to watery conditions. Anthony Ero ("Ero"), another ironworker at the job site, stated in an incident report that plaintiff slipped and lost his balance "and jumped out to avoid falling on beam below."
In support of plaintiff's motion, Rasmusen stated in an affidavit that at the time of the accident, plaintiff and Bifulco were connectors, standing on a steel beam girder approximately six to seven feet above ground level. At that time they were hoisting a steel stringer to be connected between the girders. After Rasmusen placed the choker on, a signal had been given for the crane to lift the piece. Normally the piece would come up several inches so that Rasmusen could ensure the choker was properly centered so the piece would come up properly balanced to the connectors. However, the piece shot up fast and off balance towards the connectors, swinging at them. Plaintiff tried to grab the piece to either control it or protect himself and slipped off the steel beam, falling to the ground below. The ground had numerous areas of flooding as water was falling down a slurry wall for several weeks. Rasmusen complained numerous times about the accumulations of water, but the situation was not rectified. Rasmusen further stated that although they were provided with safety belts at the time of the accident, there were no lifelines, stanchions, safety cables or any safety devices for the worker to tie into to prevent a fall from the elevated steel beam.
Bifulco stated in an affidavit in support of plaintiff's motion that plaintiff was working on the steel structure when a new beam was being brought up that did not have a tag line on it. As the beam came up, it swung towards plaintiff and, in attempting to get out of the way, he slipped, causing him to fall approximately seven feet below. There were severe accumulations of water which caused slipping hazards throughout the job. The beams were very wet and difficult to work on. Bifulco further stated that although they were provided with a safety belt, "there were absolutely no lifelines, stanchions or any devices to tie into, nor were we provided with any scaffolding or ladders on the day of the accident."
Moreover, plaintiff is entitled to summary judgment under Labor Law § 240(1) insofar as the accident was caused by the improper hoisting of the steel beam at the time of the accident. Labor Law § 240(1) liability is "limited to specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured." Here, the steel beam was lifted in a fast manner, off balance, causing it to swing uncontrollably at plaintiff who slipped and fell trying to get out of the way. Further, the hooker-on did not get the opportunity to affix the choker properly, leading to the accident in question, and there was no tag line on the piece. It is unrefuted that the choker was off center causing an imbalance, and that the beam was lifted at an accelerated rate of speed, either because the wrong signal was given, or the crane operator lifted the load too last. Cases uniformly hold that where, as here, an object falls from a crane or similar hoisting apparatus because it was being hoisted improperly, Labor Law § 240(1) has been violated. The First Department recently concluded that "when a crane is being used to move a large, heavy or unwieldy item from one spot to another," the term "hoisting" should be interpreted broadly, and includes the vertical, as well as the horizontal portions of the operation. Here, plaintiff's accident was caused when the improperly hoisted beam was elevated from 5-8 feet above ground and swung at a dangerous rate of speed towards plaintiff, causing him to step back and fall off the beam.
Neither comparative negligence nor assumption of risk may be asserted as a defense in a Section 240 action. And, whether the owner or general contractor exercised control or supervision over the work which gave rise to the worker's injuries, and the customs or practices in the construction trade, are irrelevant. Thus, argues plaintiff, summary judgment on his Labor Law § 240(1) claim is warranted.
Plaintiff also argues that defendants violated Labor Law § 241(6) and multiple provisions of the Industrial Code. Plaintiff claims that defendants violated Section 23-8.1(f)(1) and (2), in that the load was hoisted in an unsafe, unbalanced fashion, and that the load came up too fast before the hooker-on had an opportunity to properly set the choker and balance the piece, and that there were no emergency circumstances at the time. Since plaintiff had no duties pertaining to hooking the load or operating the crane, there can be no argument of comparative fault. Defendants also violated Section 23-8.2(c)(3) and Section 23-2.3, in that there was no tag line affixed to the load to control it at the time of the accident as required. Since plaintiff had no duties pertaining to affixing a tag line, there could be no issues of comparative fault on his part. Also, Section 23-1.16 was violated in that plaintiff was not provided with any devices to attach a safety belt. Finally, defendants violated Section 23-1.7(d), in that plaintiff slipped off the steel beam due to the slippery condition of a walkway. Ero claimed that plaintiff slipped, and that he saw water on the beam at the exact spot plaintiff fell from. Moreover, water had been coming down in great quantities from the slurry wall for several weeks prior to the accident, and despite numerous complaints by the ironworkers, said condition was not rectified. Plaintiff at all times was performing his job as directed, and at all times followed all instructions and directions. Thus, plaintiff is entitled to summary judgment under Labor Law § 241(6).
In opposition, defendants argue that there are several questions of fact warranting a denial of summary judgment.
There is a question of fact concerning the manner in which the beam being raised moved during the process. Defendants contend that the beam was to be raised at an angle so that it could be fit into place and the manner in which it was raised did not materially deviate from the manner in which it was typically raised. Rasmusen testified that plaintiff had his hands on the beam, trying to ensure that the beam would not get caught on the header; the beam was not moving in any way other than what was being done by hand. According to an affidavit of the Superintendent for Skanska, Greg Shaw ("Shaw"), he "did not believe" the beam was jumping in any unusual manner, but was being lowered with tag lines attached to each end of the beam. Once the beam is within arms length, the ironworkers will remove the tag lines and guide into setting location by hand. Due to the tight area that the beam was being placed into, it was not possible for the beam to yo-yo or seesaw beyond the ironworkers' manual control. One end of the beam had to be lowered while the other end had to be raised up so as to enter the beam end beneath the adjacent beams top flange, and then the raised free end had to be lowered diagonally to the beams surrounding. This operation is under the control of the connectors who are setting the beam.
Further, there is an issue of fact as to the manner in which plaintiff fell. Plaintiff testified that he slipped as he stepped back away from the beam, yet he also testified that he landed on his feet. Thus, plaintiff necessarily would have had to jump.
There is also an issue as to the height of the beam at the time of this incident. Plaintiff testified that the top portion of the beam was at his head and the other portion of the beam with the end plate was at his mid section. He testified it went from ground to face level in several seconds. When the beam came to a stop, it was at approximately eye level. The top of the header was eye level and the bottom was his chest level. Yet, Ero testified that the distance from the ground to where the beam had come up immediately prior to the accident was six feet which would necessarily put the beam at foot to ankle level of the plaintiff. Rasmusen testified that when the beam went up, the top of the beam was maybe only eight to ten feet from the ground and that the top of the beam was only approximately two feet above the header.
There is a question of fact as to whether the alleged water conditions existed at the time of the alleged incident. Plaintiff could not describe how much of the beam was covered in mud and/or water and when asked if anytime did he take a rag and wipe the beam off, the plaintiff answered "no." Ero purportedly saw water and slurry on the beam, but in fact could not describe what he saw, and testified that it appeared as if the plaintiff slipped on what looked like water on top of the beam but was unable to describe the manner in which the beam was wet. Costello, plaintiff's foreman, could not confirm whether there was water in the area where the accident occurred, and stated that if the water condition was bad, the workers would not work in those areas. Either way, neither plaintiff nor Ero could describe the water condition allegedly present on the beam. Further, while Costello recalled that there was some slurry dust and water on the beam at issue, he did not document this condition. Shaw also stated that "there was no water underfoot [] or wet walking surfaces" in the area where the steel installation was being performed by plaintiff.
Further, there is a question of fact concerning whether a tag line was required at the time this incident occurred. While the plaintiff now claims that a tag line was required to be used, plaintiff actually testified in essence that a tag line was not required as the connector would "get their hands on it" and grab the beam. Costello testified that due to the low elevation of the beam, a tag line was not required. So long as the workers could keep the beam in their hands, the workers did not need to put a tag line on the beam. Rasmusen also testified that the beam was so big that it could be handed to the connectors without a tag line on it. Plaintiff conceded that the purpose of a tag line is to prevent a load from swinging, and as testified to by Rasmusen, at no time did the beam swing since the beam was not moving in any way other than what was being done by hand. Further, Shaw stated in his affidavit that this work is performed with hands-on control of the newly added beam.
In addition, Shaw stated that due to the dimensions of the plate, it cannot be categorized as having a sharp, "knife-life" edge. And, according to Rasmusen, the beam with the plate was standard. Therefore, the beam with a plate on one end was not an unusual circumstance.
Defendants also maintain that there is also a question of fact concerning whether the beam was to be hoisted level or off balance. Plaintiff conceded the beams would have to be turned and also angled up and down so it can fit through the space. Costello also testified that the steel was being lifted from the ground at an angle. Also plaintiff testified that he has to turn the beam and "angle it slightly to fit between the beams that are already set. The beam does not come straight up the way it is going to end up. It has to be worked and moved around . . ." The workers "on the ground would keep a hand on [the beam] to turn it sideways or whatever was necessary. . . ." However, even assuming it was at a different angle, Ero testified that the piece of steel was off balance only a "little bit." Rasmusen also confirmed that the beam only went up "on a little bit of an angle."
There is a question of fact as to whether the plaintiff had control of the beam at the time of this incident. While plaintiff testified that he slipped in order to avoid being struck by the beam, Ero testified that plaintiff grabbed the beam and Rasmusen testified that Bifulco had control of his end. Rasmusen stated that plaintiff grabbed his side of the beam and that plaintiff slipped and fell as he was pulling the beam. Rasmusen also testified that plaintiff was trying to move the beam out a little bit to free it up. Plaintiff had his hands on the beam and he was trying to make sure that the beam would not get caught on the header.
There also is an issue as the differential in speed of the beam. Although plaintiff testified that the beam came up faster than usual, none of the witnesses could describe in what manner it was purportedly different. Neither plaintiff could quantify the difference in the manner in which the beam came up.
And, there is a question of fact concerning the manner in which the work was to be performed. When asked if there was any other manner in which this particular beam could have been installed rather than standing on top of the headers, Costello testified that the workers could have stood on the ground.
Also, there is an issue concerning the height at which the plaintiff was working. Plaintiff stated that he fell from a height of six to seven feet. However, according Shaw, plaintiff was working at a height of less than six feet.
Defendants further argue that as to plaintiff's Labor Law § 241(6) claim, plaintiff, for the first time within his summary judgment motion, claims the defendants violated Industrial Code §§ 23-1.7(d), 23-1.16, 23-2.3, 23-8.1(f)(1)(i), (ii), (iii), (iv), (v), (f)(2)(i) and 23-8.2(c)(3). Plaintiff was deposed in February 2009 and filed his Note of Issue on October 28, 2009. Yet, plaintiff never alleged any such violations within his Bill of Particulars, supplemented his Bill of Particulars, or sought relief from the Court to amend his Bill of Particulars to assert these claims. Such additions materially alter plaintiff's theory of liability and unduly prejudices defendants as they have not had a full and fair opportunity to engage in discovery concerning these new allegations.
In the event this Court considers these Industrial Code Regulations, summary judgment must still be denied as Sections 23-8.1(f)(1)(i), (ii), (iii) and (v) do not apply; there is no allegation or any evidence that the hoisting rope had a kink in it such that it caused this alleged incident, that multiple part lines were twisted around each other, that the crane hook played any role in causing the alleged incident or that there was a slack rope condition.
Defendants claim that Section 23-1.16 does not apply but fail to state the basis for this claim (Defendants' Memorandum of Law in Opposition p. 26).
Further, with respect to the Industrial Code provisions that arguably apply, a question of fact exists as to whether there was a violation of Industrial Code §§ 23-1.7(d), 23-1.16, 23-2.3, 23-8.1(f)(1)(iv), 23-8.1(f)(2)(i) and 23-8.2(c)(3). Plaintiff's mere allegation that defendants violated Section 23-1.7 is too general to form the basis of liability for a Labor Law § 241(6) claim as a matter of law. Nevertheless, should the Court consider subsection (d) plaintiff now alleges, Shaw's and Costello's statements raise an issue of fact as to whether there was a water condition at the site. As to Section 23-1.16, there are questions of fact due to conflicting evidence and glaring credibility issues that preclude findings of fact on how the alleged incident actually occurred. As to Section 23-8.1(f)(1)(iv) and § 23-8.1(f)(2)(i), plaintiff concedes the beam had to be raised at an angle so that it could fit through the beams it was going to be placed in between, Costello confirmed that the beam was required to be lifted from the ground at an angle, and Ero and Rasmusen indicated that the piece of steel was off balance only a "little bit." Further, none of the witnesses could describe the manner in which the beam came up "faster than usual." Also, as to Sections 23-2.3 and 23-8.2(c)(3), there are issues concerning whether a tag line was required and as to the manner in which the beam was purportedly moving at the time of this incident. A tag line is not required in every instance, and Costello and Rasmusen both testified that a tag line was not required under the circumstances as the work bay was a small space and the workers could keep their hands on the beam. Shaw also stated that the work is performed with hands-on control of the newly added beam. Further, at no time did the beam swing.
Defendants also argue that Rasmussen's deposition testimony conflicts with his affidavit concerning the movement of the beam at issue. Rasmusen's affidavit also should be disregarded because it was tailored to appear consistent with plaintiff's recitation of the facts, and is inconsistent with plaintiff's deposition testimony. Further, plaintiff's motion is premature because Bifulco's deposition is outstanding and plaintiff failed to coordinate his deposition prior to the filing of this motion. And, plaintiff cannot rely on the Phoenix Constructors Preventive Action Plan and Phoenix Incident Report because these reports are inadmissible hearsay.
Reply
Defendants effectively concede that plaintiff was provided with no safely devices which would have prevented his fall from the beam. Defendants acknowledge that both Tyler of Phoenix and Behnke of the Port Authority, confirmed that safety cable and related devices did not appear in a photograph of the accident scene. And, defendants offer no proof to rebut plaintiff's showing that necessary devices, such as lifelines and stanchions, were not provided.
Defendants' liability under Labor Law § 240(1) is not dependent on whether the beam from which plaintiff fell was slippery or not. Nor is there is any evidence that the beam was dry when plaintiff fell; the unsigned, unsworn affidavit of Shaw in this regard is inadmissible hearsay, as it was not based upon his personal knowledge of the accident and is replete with speculation. Plaintiff's fall was a result of watery conditions at the accident site; Costello testified that he complained to Shaw about the watery conditions and Warren Allen, a shop steward at the work-site, testified about the accumulations of water which came down the slurry wall. Moreover, Behnke identified photographs that showed darkened sections of concrete at the accident scene indicative of water.
In any event, liability under Labor Law § 240(1) will lie regardless of whether plaintiff '"slipped" or merely "fell" or actually "jumped" in order to avoid being struck by the load. Nor is denial of summary judgment warranted because of discrepancies in the proof concerning the distance of plaintiff's fall. Plaintiff and eyewitnesses, including Rasmusen and Bifulco estimated that plaintiff fell a distance of six or seven feet. While Shaw implies that plaintiff was working at less than 6 feet, regardless of which estimate is accepted, the height differential undoubtedly constituted an "elevation-related risk" sufficient to implicate Labor Law § 240(1). Any inconsistencies in the proof were minor and do not preclude summary judgment for plaintiff.
In addition to failing to provide appropriate safety devices to prevent him from falling, the statute was violated because of defendants' failure to assure that the steel beam which precipitated plaintiff's fall was properly hoisted. The improper placement of the choker and the sudden acceleration of the steel beam towards the connectors was not contradicted in any way. Plaintiff adds that Rasmusen's affidavit was signed in October 2007, one year before plaintiff was deposed, and there is no basis for defendants' claim that such affidavit was tailored to meet plaintiff's testimony. Additionally, Rasmusen's sworn deposition testimony is consistent with his affidavit, that the beam came up faster that usual, toward the connectors, in a hazardous way. Defendants omit certain testimony of Rasmusen and states that the load was not moving as plaintiff had his hands on it. In the testimony counsel is referring to, plaintiff was already trying to control the piece after it improperly jerked up at a fast rate of speed towards him. Accordingly, there is no inconsistency; plaintiff fell trying to avoid being hit by the beam.
Further, defendants' references to the speed, in miles per hour that the beam was traveling at the time of the accident, are entirely irrelevant. Rasmusen and the ironworkers testified that the steel member is supposed to come up slowly and in a controlled manner, so that the connectors can bolt it into a previously-set beam. Defendants submitted no proof refuting the fact that the load shot up too quickly and erratically to allow it to be connected according to protocol.
Defendants' attempt to create inconsistencies as to the height of the beam at the time of the accident are also unsupported by the record. Rasmusen testified that the beam weighed approximately 4,000 to 5,000 pounds, was about 12-15 feet long, and was approximately 8 feet in height. Plaintiff stated that the beam was at eye level and bounced downward just before the accident and Rasmusen stated that the beam was approximately 8-10 feet above ground (2-4 feet above the beam in question). Ero testified that he believed the beam was approximately 6 feet up. It is clear that a beam at the four-foot level, which bounces in a split second, is consistent with all the proof.
Moreover, defendants take Rasmusen's testimony out of context. Rasmusen testified that the beam was 2-4 feet above the beam plaintiff was standing on. Using Rasmusen's lower estimate, defendants assumed that plaintiff was just two feet above the beam. But if Rasmusen's higher estimate was correct, then the load was, in accordance with other proof, at roughly the level of plaintiff's chest. Regardless, it is clear that there are no factual inconsistencies and even if there were minor immaterial inconsistencies in the proof, they were grossly insufficient to defeat a motion for summary judgment, as the dangerous method by which the beam was lifted constitutes a separate basis for the imposition of liability under Labor Law § 240(1).
Plaintiff also avers that defendants fail to demonstrate any bonafide issue of fact in connection with plaintiff's Labor Law § 241(6) claims. The relevant Industrial Code provisions are set forth in plaintiff's Verified Bill of Particulars. Although specific subparagraphs were not set forth therein, defendants never sought a more detailed Bill of Particulars. Caselaw holds that plaintiff's allegations are adequate to sustain a claim under Labor Law § 241(6). Plaintiff adds that as to the issue of tag lines, there is a divergence in the proof and there is clearly an issue of fact. A jury should be given an opportunity to determine whether or not a tag line would have prevented the instant accident.
Plaintiff also adds that summary judgment is not premature. Bifulco was identified as a witness to the accident in plaintiff's initial Response to Combined Demands, and counsel did not attempt to subpoena witnesses for non-party depositions until after plaintiff filed his Note of Issue. Additionally, on January 4, 2010, plaintiff's counsel asked defendants' counsel if she would like to do the deposition while the motion was pending, and she stated that she was too busy. Since defendants did not avail themselves of the opportunity to conduct depositions which they now deem necessary, and numerous depositions have already been held, there is no basis on which defendants can fairly argue that plaintiff's summary judgment motion is premature.
Discussion Labor Law § 240
Labor Law § 240 (1) provides, in relevant part:
All 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.
Labor Law § 240(1) imposes absolute liability upon an owner or contractor for failing to provide or erect safety devices necessary to give proper protection to a worker who sustains injuries proximately caused by that failure ( Ernish v City of New York, 2 AD3d 256, 768 NYS2d 325 [1st Dept 2003], citing Bland v Manocherian, 66 NY2d 452, 497 NYS2d 880). In Rocovich v Consolidated Edison Co. ( 78 NY2d 509, 514, 577 NYS2d 219), the Court of Appeals defined the scope of Labor Law § 240 (1) as encompassing special hazards inherent in elevation-related tasks ( Gill v Samuel Kosoff Sons, 229 AD2d 824 [3rd Dept 1996]). The Court again addressed the scope of Labor Law § 240(1) in Ross v Curtis-Palmer Hydro-Elec. Co. ( 81 NY2d 494), wherein it stated that the section "was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person" (supra, at 501 [emphasis in original]).
In McGurk v Turner Construction Co. ( 127 AD2d 526, 512 NYS2d 71 [1st Dept 1987]), plaintiff slipped and fell off a beam he was traversing to reach a place on the beam where a stone soffit had become improperly wedged and which needed to be corrected. The First Department affirmed the granting of summary judgment to plaintiff on the issue of liability under Section 240(1). Plaintiff had to traverse the steel beam in order to correct the problem with the soffit, defendants' representatives knew that workmen had previously stood on the beam in the course of their duties, and "there was no scaffold beneath the beam on which the soffit was to be placed or any netting, lifeline or other safety device which would have prevented plaintiff's injuries."
In Heath v Soloff Const., Inc. ( 107 AD2d 507, 487 NYS2d 617 [4th Dept 1985]) plaintiff, an ironworker, plaintiff asserted that:
The accident occurred when I fell to the ground from a horizontal steel beam situated approximately 17 feet above ground level. I had walked out onto this beam, which was only three or four inches in width, at the direction of my foreman to unhook a choker that had been used to support the beam as it was placed into position by a crane.
I detached the choker and was holding onto the hook of the crane to balance myself as I started to stand up when the crane operator, suddenly and without any signal being given, raised the hook, causing me to lose my balance and fall off the beam.
In Heath, Mark Soloff, the officer in charge of the general contractor's local operations, testified that he had provided no safety devices for erection of the steel. The president of plaintiff's employer, stated that no safety devices had been provided because "none was required." The Court noted that the assertions by witnesses that safety equipment was not available on the job and that "none was required" are understandable when viewed in light of the argument made by all defendants at Special Term that since the plaintiff was working at a level less than 20 feet above the ground, Labor Law § 240 was inapplicable. However, the Court held that such argument "was properly found to be without merit." The Court held that since plaintiff was doing construction work involving the danger of a fall from an elevated height, plaintiff demonstrated that Labor Law § 240 was applicable since the evidence proved that the owner and contractor violated the statute by having failed to provide him with safety devices and that the violation was the proximate cause of his injury.
It is undisputed that plaintiff herein was performing construction work as he was standing upon the beam at issue. The record establishes that the beam upon which plaintiff was standing was located at an elevated height at approximately six to seven feet above ground at the time he fell and suffered injuries. The record further establishes that the sole safety device provided to plaintiff, i.e., the safety harness, was inadequate to protect plaintiff from his fall and his resulting injuries since there was no stanchion, cables, lifelines or system in place to which plaintiff could tie his safety harness. Rasmusen stated in his affidavit that although safety belts were provided, "there were no lifelines, stanchions, safety cables or any safety devices for the worker to tie into to prevent a fall from the elevated steel beam." Bifulco's affidavit is essentially identical in this regard. Rasmusen further testified that there were no stanchions, safety cables, or any safety devices erected for plaintiff or Bilfuco to tie into at the time of the accident. According to Allen, based on photographs of the accident scene, there were no lifelines, stanchions, or safety cables for plaintiff to tie into, and the beam from which plaintiff fell was a "little over six foot" or "six foot three" inches. "Proper protection" requires that the device must be appropriately placed or erected so that it would have safeguarded the employee, and that the furnished device itself must be adequate to protect against the hazards entailed in the performance of the particular task to which the employee was assigned ( Conway v New York State Teachers' Retirement Sys., 141 AD2d 957, 530 NYS2d 300 [3d Dept 1988] citing Bland v Manocherian, 66 NY2d 452, 460 and Wright v State of New York, 66 NY2d 452, 461). "Put another way, the availability of a particular safety device will not shield an owner or general contractor from absolute liability if the device alone is not sufficient to provide safety without the use of additional precautionary devices or measures ( Conway, supra).
It is noted that Costello testified that the "only way you can tie off this is using a beam runner" which is a device "that clamps onto the top usually as a thing that you could either slide it in or out to for different size beams." Yet, if a beam runner was placed on the beam, it would not have prevented plaintiff from falling from one elevation to another and hitting the ground; according to Costello, plaintiff, "as a pretty tall guy, he's about six-three, and he would hit the ground before anything could take effect." Costello further stated that the runner would not have prevented the accident. However, Costello's testimony does not overcome the showing that no proper safety devices were provided to plaintiff to prevent his fall from the elevation. Therefore, plaintiff has established defendants' liability under Labor Law § 240(1) ( see also, Peddle v Turner Const. Co., Inc., 92 AD2d 530, 459 NYS2d 448 [1st Dept 1983] (holding that trial court properly directed a verdict of liability under Labor Law § 240(1), where it was undisputed that no safety devices were employed at the construction site where plaintiff, a structural iron worker, was working when he fell from a narrow beam approximately 16 feet above the ground); see also, Murphy v Islat Assocs. Graft Hat Mfg. Co., 237 AD2d 166, 654 NYS2d 760 [1st Dept 1997] (finding that no triable issue of fact as to proximate cause is raised by the employer's representative's testimony that he did not think safety belts were needed in dismantling a crane)).
Defendants' attempt to raise an issue of fact as to the manner in which plaintiff fell is unavailing. First, that plaintiff landed on his feet does not raise an issue as to the fact that he slipped and fell from the beam. Moreover, whether plaintiff slipped or jumped is irrelevant under the circumstances since plaintiff was not provided with appropriate safety or protective devices for work at an elevated height; Labor Law § 240(1) applies herein regardless of whether he jumped or fell ( Sherman v Eugene I. Piotrowski Builders, Inc., 229 AD2d 959, 645 NYS2d 244 [4th Dept 1996]). In Cosban v New York City Transit Authority ( 227 AD2d 160 [1st Dept 1996]), plaintiff was using a hydraulic crane, mounted on a truck, to lift bundles of sheetrock from a flatbed truck and move them to the roof of a building, when the crane toppled over. As the crane fell over, plaintiff either jumped or was ejected from the cab of the crane, falling 20 feet down to the ground. The Court held that plaintiff was entitled to summary judgment ( see also Demkulich v Felchar Mfg. Corp., 247 AD2d 660 [3d Dept 1998] (stating that plaintiff was not "barred from recovering purely because, when confronted with the dangerous predicament that the lift was quickly drawing near the embankment, he opted to jump rather than risk what he perceived to be more serious consequences)).
Likewise, whether the water conditions on the beam existed at the time of plaintiff's fall is also irrelevant ( see Murphy v Islat Associates Graft Hat Mfg. Co. (finding that no triable issue of fact as to proximate cause is raised by plaintiff's testimony that his fall from the crane was caused by his slipping on grease)).
Nor is Shaw's attestation that plaintiff was working at "less than 6 feet," without any specificity as to the height of the beam from which plaintiff fell, sufficient to overcome plaintiff's showing that plaintiff fell from an elevated height ( Arrasti v HRH Constr., LLC, 60 AD3d 582 [1st Dept 2009] (violation of Labor Law § 240(1) found where worker fell from ramp elevated 18 inches above a floor and the failure to equip this ramp with handrails, curbs, cleats or other safety devices was the proximate cause of plaintiff's injuries); Geltys v Port Auth. of New York and New Jersey, 248 AD2d 226 [1st Dept 1998] (stating that the "difference between 2 feet 8 inches and 4 feet is not a material inconsistency creating an issue of fact on the question of liability, since even a platform elevated only 2 feet from the ground would be subject to the protection" of Labor Law § 240)).
Defendants' remaining contentions regarding the manner in which the beam was being raised, the height of the beam that was being lifted, whether a tag line was required, whether the beam was to be hoisted level or off balance, whether plaintiff had control over the beam, the speed of the beam, or the manner in which the work could have been performed, are irrelevant to raise an issue of fact as to whether defendants failed to provide a proper safety device to guard plaintiff from falling from the beam.
Further, whether the beam was properly hoisted and suddenly accelerated at a higher speed toward plaintiff constitutes a violation of Labor Law § 240(1) is inconsequential. Even if the beam were properly hoisted, plaintiff was not provided with proper protection to prevent him from falling from an elevation during the performance of his duties.
Therefore, as the record clearly establishes that defendants failed to provide plaintiff with adequate safety devices to prevent plaintiff from falling from an elevated height, which was the proximate cause of plaintiff's injuries, and defendants failed to raise a material issue of fact on this issue, plaintiff is entitled to summary judgment on his Labor Law § 240(1) claim.
Labor Law § 241(6)Labor Law § 241(6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to workers engaged in the inherently dangerous work of construction, excavation or demolition ( see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502). In order to recover a claimant need not prove that the owner or contractor exercised supervision or control over the work being performed ( see Ross at 501-502; Long v Forest-Fehlhaber, 55 NY2d 154 [1982]). However, the worker must allege and prove that the owner or contractor violated a rule or regulation of the Commissioner of the Department of Labor which sets forth a specific standard of conduct, as opposed to a general reiteration of the common law ( see Ross at 502-504). The violation of a specific standard of conduct, once proven, does not establish negligence as a matter of law, but rather is some evidence of negligence to be considered with other relevant proof ( see Long at 160).
At the outset, the Court finds that plaintiff's Verified Bill of Particulars sufficiently alleged violations of Sections 23-8.1(f)(1)(iii) and (iv) and (f)(2)(i), 23-8.2(c)(3), 23-1.7(d), 23-2.3 and 23-1.16. Sections 23-2.3 and 23-1.16 were expressly alleged. Further, although the subsections as to the remaining Sections were not alleged, the citations to Sections "23-8.1," "23-8.2", and "23-1.7" are sufficient under the circumstances ( Bruton v State, 5 Misc 3d 1006, 798 NYS2d 707 [NY Ct C1 2004] ("While the better practice would have been to identify the specific section and subsection relied on, the failure to do so does not require dismissal of the cause of action"); Tomyuk v Junefield Assn., 57 AD3d 518, 868 NYS2d 731 [2d Dept 2008] (finding that the provision that plaintiff alleged was violated, " 12 NYCRR 23-1.7," contains specific directives that are sufficient to sustain a cause of action under Labor Law § 241(6)).
Defendants do not dispute, in reply, plaintiff's claim that issues of fact exist as to whether Sections 23-8.2, 23-1.7, and 23-2.3. Therefore, summary judgment on Labor Law § 241(6) predicated upon such Sections is denied.
The merits of plaintiff's claims under Sections 23-8.1(f)(1)(iii) and (iv) and (f)(2)(i), and 23-1.16 are discussed in turn.
Sections 23-8.1(f) Hoisting the Load, provides in pertinent part:
§ 23-8.1 General provisions.
(f) Hoisting the load
(1) Before starting to hoist with a mobile crane . . . the following inspection for unsafe conditions shall be made:
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(iii) The hook shall be brought over the load in such manner and location as to prevent the load from swinging when hoisting is started.
(iv) The load is well secured and properly balanced in the sling or lifting device before it is lifted more than a few inches. . . .
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(2) During the hoisting operation the following conditions shall be met:
(i) There shall be no sudden acceleration . . . of the moving load unless required by emergency conditions.
(Emphasis added).
Sections 23-8.1(f)(1)(iii) and (iv) set forth a specific standard of conduct ( see Cammon v City of New York, 21 AD3d 196 [1st Dept 2005]; Marin v City of New York, 5 Misc 3d 1003 [Sup Ct Kings County 2004] (where plaintiff was struck by a pipe that was not properly secured and balanced in the lifting apparatus after the pipe encountered an obstruction, causing it to strike plaintiff, Court held that 12 NYCRR 23-8.1(f)(1)(iii) and (iv) set forth specific safety standards for Labor Law § 241(6) purposes)). As to 23-8.1(f)(1)(iii), there is no allegation, and plaintiff failed to assert any evidence indicating, that any "hook" was not "brought over the load" to prevent the load from swinging. Plaintiff's reply cites to this section, but fails to cite to any testimony regarding any "hook." While plaintiff claims that there is no indication that the hook was brought over the load in a manner to prevent it from swinging, plaintiff points to no testimony to this effect. And, Shaw's mere belief that the beam did not jump uncontrollably is insufficient. Therefore, plaintiff failed to establish entitlement to summary judgment based on a violation of Section 23-8.1(f)(1)(iii).
However, plaintiff established that the subject beam was not "secured and properly balanced in the sling or lifting device" before it was lifted, as required pursuant to Section 23-8.1(f)(1)(iv) ( see Common v City of New York, 21 AD3d 196 [1st Dept 2005]). Plaintiff and Costello testified that the beam had to be raised at an angle in order for it to fit through another set of beams. Further, Rasmusen and Ero testified that the beam was off balance a "little bit." However, such testimony fails to create an issue of fact as to whether the beam was properly balanced, as required under Section 23-8.1(f)(1)(iv). Plaintiff indicated that after the beam was lifted and came to a stop, it "began bouncing" and "teeter-tottering" and "moving all around." (Plaintiff EBT, pp. 165-167). According to plaintiff, the beam "was off level because it was choked in the wrong place. They didn't account for the plate on the end." (Plaintiff EBT, pp169-170). Thus, even assuming the beam was required to be raised at an angle in order to fit through the other beams, the record establishes that the beam being raised became imbalanced to the point that it was moving uncontrollably in manner which caused plaintiff to move in order to avoid to being hit. Therefore, plaintiff established that defendants violated Section 23-8.1(f)(1)(iv).
As to Section 23-8.1(f)(2)(i), this Section is a sufficiently specific predicate for Labor Law § 241(6) claim ( see McCoy v Metropolitan Transp. Auth., 38 AD3d 308, 832 NYS2d 26 [1st Dept 2007] (permitting amendment of bill of particulars to allege Section 23-8.1(f)(2)(i)). Plaintiff and Rasmusen testified that the beam was lifted and moved toward the connectors at a fast, accelerated rate. That plaintiff and Ero could not state the time differential between how the beam normally ascends compared with how it ascended on the day of the accident is inconsequential. The evidence firmly established that the beam came up at an accelerated rate of speed, and that plaintiff, in an attempt to avoid being struck by the beam, fell from the beam on which he was standing. As such, plaintiff established that defendants violated this section in that the sudden acceleration was a proximate cause of plaintiff's injuries.
Finally, Section 23-1.16 provides:
23-1.16 Safety belts, harnesses, tail lines and lifelines.
(a) Approval required. Safety belts, harnesses and all special devices for attachment to hanging lifelines shall be approved.
(b) Attachment required. Every approved safety belt or harness provided or furnished to an employee for his personal safety shall be used by such employee in the performance of his work whenever required by this Part (rule) and whenever so directed by his employer. At all times during use such approved safety belt or harness shall be properly attached either to a securely anchored tail line, directly to a securely anchored hanging lifeline or to a tail line attached to a securely anchored hanging lifeline. Such attachments shall be so arranged that if the user should fall such fall shall not exceed five feet.
(Emphasis added).
In this matter, it is undisputed that plaintiff was provided with a safety belt. However, it is also undisputed that there were no lifelines to which plaintiff could tie his safety belt. Defendants failed to raise an issue of fact indicating that safety lines were not required, as the record indicates that plaintiff was working at height of at least five feet. Thus, plaintiff established that defendants violated Section 23-1.16.
Therefore, plaintiff, having established that defendants violation Sections 23-8.1(f)(1)(iv), 23-8.1(f)(2)(i), and 23-1.16, plaintiff is also entitled to summary judgment on his Labor Law § 241(6) claim.
Finally, plaintiff's motion is not premature based on the outstanding deposition of Bifulco. The testimony and statements from the remaining witnesses in this matter are sufficient to support the relief granted, and this decision does not rest on the statements of Bifulco alone.
Conclusion
Based on the foregoing, it is hereby
ORDERED that the branch of the motion by plaintiff for summary judgment against defendants Port Authority of New York and New Jersey and Phoenix Constructors under Labor Law § 240(1) is granted; and it is further
ORDERED that the branch of the motion by plaintiff for summary judgment against defendants Port Authority of New York and New Jersey and Phoenix Constructors under Labor Law § 241(6) is granted based on violations of Industrial Code Regulations Sections 23-8.1(f)(1)(iv), 23-8.1(f)(2)(i), and 23-1.16 and is denied as to Sections 23-8.2, 23-1.7, 23-2.3, and 23-8.1(f)(1)(iii); and it is further
ORDERED that the parties shall appear in Part 40 for a trial on damages on April 26, 2010, 9:30 a.m.; and it is further
ORDERED that plaintiff serve a copy of this order with notice of entry upon all parties within 20 days of entry.
This constitutes the decision and order of the Court.