Opinion
# 2011-037-033 Claim No. 115963 Motion No. M-80042 Cross-Motion No. CM-80043
09-29-2011
DOWNEY v. STATE OF NEW YORK
Synopsis Case information
UID: 2011-037-033 DAVID P. DOWNEY and Claimant(s): ROBIN L. DOWNEY Claimant short name: DOWNEY Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 115963 Motion number(s): M-80042 Cross-motion number(s): CM-80043 Judge: JEREMIAH J. MORIARTY III Brown Chiari LLP Claimant's attorney: By: Samuel J. Capizzi, Esq. Cramer, Smith & Miller, P.C. Defendant's attorney: By: Ralph S. Alexander, Esq. Third-party defendant's attorney: Signature date: September 29, 2011 City: Buffalo Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The following were read and considered with respect to Claimants' motion no. M-80042 for partial summary judgment and Defendant's cross-motion no. CM-80043 for partial summary judgment:
1. Notice of motion and supporting affidavit of Samuel J. Capizzi, Esq. sworn to April 18, 2011, with annexed Exhibits A-H;
2. Claimants' undated memorandum of law;
3. Notice of cross-motion dated June 29, 2011 and affirmation of Ralph S. Alexander, Esq. dated June 28, 2011 in opposition to Claimants' motion and in support of Defendant's cross-motion;
4. Affidavit of Rick Klug sworn to June 27, 2011 in opposition to Claimants' motion and in support of Defendant's cross-motion;
5. Defendant's undated memorandum of law;
6. Affidavit of Samuel J. Capizzi, Esq. sworn to July 7, 2011, with annexed Exhibit A, in support of Claimants' motion and in opposition to Defendant's cross-motion;
7. Claimants' July 7, 2011 memorandum of law.
Filed Papers: Claim filed October 16, 2008; Answer filed December 18, 2008.
This is an action for personal injuries sustained on July 21, 2008 when the Claimant, David P. Downey,fell approximately eight feet from an aluminum pick or plank which ran from a dirt roadbed to the top slab of a deck being constructed as part of a bridge project. At the time of the incident, Claimant was employed by Union Concrete Construction Corp. (UCC). The bridge was located on New York State Route 20 as it passes over Rush Creek. Claimants allege that the incident was caused by the negligence of the Defendant in violation of Labor Law §§ 200, 240 (1) and 241 (6). Claimants move for partial summary judgment on the Labor Law § 240 (1) cause of action and Defendant cross-moves for partial summary judgment dismissing the same Labor Law § 240 (1) cause of action.
All further references to Claimant shall refer to David P. Downey as the claim of Robin L. Downey is derivative only.
A party moving for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue, but once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, supra at 562). Applying those principles to this claim has warranted an examination of the record presented to the Court which includes pertinent pleadings, deposition testimony and documentary evidence. Every reasonable inference that can be reasonably drawn from the evidence presented shall be viewed in the light most favorable to the opposing party.
Labor Law § 240 (1), commonly known as the "scaffold" law, imposes non-delegable, strict liability upon property owners and general contractors for certain types of elevation-related injuries that occur during construction (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500 [1993]; Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]). Specifically, the statute provides in pertinent 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."
Violation of Labor Law § 240 (1) mandates the imposition of liability regardless of negligence and is deemed to create a statutory cause of action unrelated to questions of negligence. "Labor Law § 240 (1) imposes absolute liability on owners, contractors and agents for their failure to provide workers with safety devices that properly protect against elevation-related special hazards" (Striegel v Hillcrest Hgts. Dev. Corp., 100 NY2d 974 [2003]). "The statute is to be interpreted liberally to accomplish its purpose" (id., citing Rocovich v Consolidated Edison Co., supra). However, "[n]ot every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240 (1). Rather, liability is contingent upon the existence of a hazard contemplated in section 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" (Narducci v Manhasset Bay Assoc., 96 NY2d 259 [2001]; see Nieves v Five Boro A.C. & Refrig. Corp., 93 NY2d 914, 916 [1999]).
To establish liability under Labor Law § 240 (1), the injured worker must demonstrate (1) a violation of the statute, and (2) that such violation was the proximate cause of his or her injuries (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 287-289 [2003]). The statute can be violated either when no protective device is provided, or when the device fails to furnish proper protection. Once the two elements are proven, the defendants are subject to absolute liability even if they did not supervise or exercise control over the construction site (see Ross v Curtis-Palmer Hydro-Elec. Co., supra at 500), and comparative negligence may not be asserted as a defense.
Claimant, a Union Steward carpenter, was hired by UCC out of the union hall. According to Claimant, the aluminum pick or plank or man bridge was a "walk pick" used to gain access and to carry materials from the roadbed to wooden frames or forms from which the top slab of the new bridge was being built. The pick was 24 inches wide. It traversed the creek bed below. While the wooden frames were surrounded by railings, there were no railings on the pick. On the day of the incident, Claimant was carrying sheets of plywood over the pick to the top of the slab. Each sheet of plywood measured 4 x 8 feet. To carry the sheet of plywood, Claimant rested the sheet on his shoulder against his head and neck. His left arm was over his head holding the sheet, while his right hand was behind him holding the bottom of the sheet. Claimant had taken one or two steps, when his foot stepped into a blind spot caused by the way he was carrying the sheet of plywood. Because he couldn't see where he was stepping, he stepped off the aluminum pick. He fell approximately 5 feet onto the diversion drainage plate or pipe, rolled, and fell another 3 feet. After the incident, the UCC carpenter foreman directed that wooden railings be constructed on the pick.
Both parties agree that liability under Labor Law § 240 (1) depends on how the pick was being used and that a fall from a pick or plank falls within or without the protection of Labor Law § 240 (1) depending on whether the pick was being used as a passageway or as the functional equivalent of a scaffold, ladder or other safety device enumerated in the statute (Paul v Ryan Homes, 5 AD3d 58, 60 [2004]). In Paul, Plaintiff was a painter working at a residential job owned by Defendant Ryan Homes. He was carrying a bucket of paint while attempting to enter the house being constructed by using a plank that served as a ramp between the concrete garage floor and the threshold to the house. Plaintiff was injured when the plank tipped, causing him to fall to the cement garage floor. The Fourth Department in Paul held that the plank was not being used as the functional equivalent of a scaffold, ladder or other device enumerated in the statute, but rather was merely being used as a passageway from one place of work to another and thus Labor Law § 240 (1) was not applicable (Paul v Ryan Homes, 5 AD3d at 61; see also Missico v Tops Mkts., 305 AD2d 1052 [2003]).
In his motion papers, Claimant relies heavily on Reisch v Amadori Constr. Co., 273 AD2d 855 [2000]) and attaches a copy of an affidavit of Mr. Reisch which was part of the Appellate Record (see Exhibiit A annexed to Attorney Capizzi's July 7, 2011 affidavit). In Reisch, Plaintiff was a civil engineer who fell from a plank leading from a bridge abutment to ground level over an excavation. Here, the Fourth Department concluded that the plank served the function of a ladder and concluded that the incident fell within the protective purview of Labor Law § 240 (1).
More recently, the Fourth Department in Wild v Marrano /Marc Equity Corp., 75 AD3d 1099 (2010) held that a plaintiff who fell into an excavation when he stepped onto a plank partially covering the excavation was entitled to the protection of Labor Law § 240 (1) as the plank from which plaintiff fell was not used as a passageway but as the equivalent of a scaffold. Similarly, the Fourth Department in Pitts v Bell Constructors, Inc., 81 AD3d 1475 (2011) held that a plaintiff who was working or walking across a plank suspended over a trench was protected by Labor Law § 240 (1). Here, Claimant fell from a pick or plank traversing the creek bed which he had used throughout the day to carry plywood sheets to the top slab of the new bridge. It is undisputed that the pick was not equipped with handrails. Labor Law § 240 (1) 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 flowing from the application of the force of gravity (Runner v New York Stock Exch., Inc., 13 NY3d 599, 604 [2009]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 501). Here, the record establishes that the Claimant was engaged in the type of elevation-related risk for which Labor Law § 240 (1) provides protection and that the pick was being used as the functional equivalent of a scaffold and not merely as a passageway. Accordingly, Labor Law § 240 (1) is applicable and the failure to provide a pick with handrails to gain access and to carry materials to the work site is the proximate cause of Claimant's injuries (Ewing v ADF Constr. Corp., 16 AD3d 1085 [2005]).
Defendant further contends, however, that there is at least a question of fact as to whether Claimant was the sole proximate cause of his injuries and whether, as a recalcitrant worker, he is entitled to recovery under Labor Law § 240 (1). Defendant argues that UCC furnished all of the materials needed to construct railings on the pick and that Claimant, as Union Steward, had a duty to report safety issues, like the lack of handrails, to the carpenters' foreman, the superintendent and to OSHA, if necessary. But even assuming Claimant knew that the pick should have been erected with railings, that materials to build the railings were available and that he failed to report the lack of railings to the foreman, the superintendent and OSHA, all of these failures, at most, suggest comparative negligence, which is not a defense available under Labor Law § 240 (1) (see Dean v City of Utica, 75 AD3d 1130 [2010]; Gizowski v State of New York, 66 AD3d 1348 [2009], lv denied 74 AD3d 1878 [2010]). Accordingly, it is hereby
ORDERED, that Claimant's motion no. M-80042 for partial summary judgment under Labor Law § 240 (1) is granted, and it is further
ORDERED, that Defendant's cross-motion no. CM-80043 for partial summary judgment dismissing the Labor Law § 240 (1) cause of action is denied.
The Clerk of the Court is directed to enter interlocutory judgment in accordance herewith.
September 29, 2011
Buffalo, New York
JEREMIAH J. MORIARTY III
Judge of the Court of Claims