Opinion
July 12, 1996
Appeal from the Supreme Court, Erie County, Howe, J.
Present — Denman, P.J., Pine, Callahan, Balio and Davis, JJ.
Judgment insofar as appealed from reversed on the law without costs, cross motion denied in part, Labor Law § 240 (1) cause of action reinstated and motion granted in accordance with the following Memorandum: Plaintiff, a roofer, injured his knee while descending from the roof of a two-story house to a garage roof. When plaintiff "hopped down" from the upper roof to the lower roof, a distance of approximately five feet, his right leg went through a seam of the plywood on the lower roof. Although there were ladders and other safety devices elsewhere at the site, none was at the site where he was working. Plaintiff commenced this action asserting causes of action under Labor Law §§ 200, 240 (1), and § 241 (6) and for common-law negligence.
Plaintiff moved for partial summary judgment on the Labor Law § 240 (1) cause of action and defendant, the general contractor, cross-moved for summary judgment dismissing that cause of action among others. Supreme Court denied the motion and granted the cross motion. The dismissal of the Labor Law § 240 (1) cause of action was error.
Labor Law § 240 (1) imposes absolute liability on an owner and contractor for failing to provide or erect safety devices "so constructed, placed and operated as to give proper protection" to a worker who sustains injuries proximately resulting from the absence of such devices ( see, Bland v. Manocherian, 66 N.Y.2d 452, 459; Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 518-519, rearg denied 65 N.Y.2d 1054). We conclude that Labor Law § 240 (1) applies to this case. Protective devices were called for because of the "elevation differential" at the worksite and because of the "`special hazards'" of "such specific gravity-related accidents as falling from a height or being struck by a falling object" ( Ross v. Curtis-Palmer HydroElec. Co., 81 N.Y.2d 494, 500-501; see, Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 512-514).
We are not persuaded by the dissent's position that plaintiff is not covered under the statute because he jumped rather than fell. Whether plaintiff jumped or fell ( cf., Smith v. Shell Oil Co., 85 N.Y.2d 1000, 1001; Cosban v. New York City Tr. Auth., 227 A.D.2d 160; Desrosiers v. Barry, Bette Led Duke, 189 A.D.2d 947, 947-948; Gandley v. Prestige Roofing Siding Co., 148 A.D.2d 666, 668, lv dismissed 74 N.Y.2d 792; Lockwood v. National Valve Mfg. Co., 143 A.D.2d 509, 510; Camillo v. Olympia York Props. Co., 136 Misc.2d 315, 318), he was injured as a proximate result of defendant's failure to furnish, and to assure the proper placement and operation of, a ladder, scaffold or other protective device ( see, Zimmer v. Chemung County Performing Arts, supra, at 518-519). Defendant's argument that plaintiff failed to use ladders that were elsewhere on the site is lacking in merit ( see, Bland v. Manocherian, supra, at 460, n 2; Heath v Soloff Constr., 107 A.D.2d 507, 510-512). Moreover, plaintiff's act in hopping down from a roof does not, contrary to defendant's argument, establish that plaintiff was a recalcitrant worker. At most, plaintiff's conduct constituted comparative negligence, which is irrelevant under Labor Law § 240 (1) ( see, Zimmer v Chemung County Performing Arts, supra, at 521, citing Koenig v Patrick Constr. Co., 298 N.Y. 313, 317).
All concur except Callahan and Balio, JJ., who dissent and vote to affirm in the following Memorandum.
We agree with Supreme Court that plaintiff's cause of action under Labor Law § 240 (1) must be dismissed. The injury sustained by plaintiff is not the kind of harm that is typically associated with elevation-related hazards ( see, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500). It is undisputed that plaintiff did not fall; he jumped or "hopped down" to the garage roof. In our view, the injury-producing event is the type of peril a construction worker usually encounters on the job site ( see, Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487, 491, rearg denied 87 N.Y.2d 969).