Opinion
# 2011-009-035 Claim No. 115651 Motion No. M-78658 Cross-Motion No. CM-79098
12-23-2011
KIN v. THE STATE OF NEW YORK
Synopsis
Claimant's motion seeking summary judgment on her Labor Law § 240(1) cause of action was denied, as a question of fact exists as to whether claimant's actions were the sole proximate cause of the accident. Defendant's cross-motion dismissing the claim was granted with respect to claimant's Labor Law § 200 and Common Law causes of action. Case information
UID: 2011-009-035 Claimant(s): SUMMER KIN Claimant short name: KIN Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 115651 Motion number(s): M-78658 Cross-motion number(s): CM-79098 Judge: NICHOLAS V. MIDEY JR. THE ROTHSCHILD LAW FIRM, P.C. Claimant's attorney: BY: Martin J. Rothschild, Esq., Of Counsel. HON. ERIC T. SCHNEIDERMAN Attorney General Defendant's attorney: BY: Law Offices Of Theresa J. Puleo P. David Twichell, Esq., Of Counsel. Third-party defendant's attorney: Signature date: December 23, 2011 City: Syracuse Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant has brought this claim seeking damages for personal injuries suffered by her when she fell from a ladder while working on a highway bridge structure in the City of Syracuse on October 29, 2007. In her claim, claimant has set forth three causes of action, essentially alleging violations of Labor Law §§ 200, 240(1), and 241(6).
Claimant has now brought a motion (M-78658) seeking an order granting her summary judgment as to liability on her cause of action alleging a violation of Labor Law § 240(1). Defendant has responded with a cross-motion (CM-79098) seeking an order granting it summary judgment dismissing the claim and all causes of action asserted therein.
The following papers were considered by the Court in connection with these motions:
Notice of Motion, Affirmation in Support, with Exhibits (M-78658) 1,2
Memorandum of Law (M-78658) 3
Notice of Cross-Motion, Affidavit, with Exhibit (CM-79098) 4,5
Affidavit of Martin J. Schooley (CM-79098) 6
Memorandum of Law (CM-79098) 7
Claimant's Responsive Memorandum of Law (M-78658, CM-79098) 8
Defendant's Reply Memorandum of Law (M-78658, CM-79098) 9
As set forth in the claim and the papers submitted herein, including transcripts of deposition testimony, certain basic facts have been established, without contradiction. On the day of this accident, claimant was employed as a laborer by Slate Hill Constructors, Inc. Slate Hill Constructors, Inc. had entered into a contract with the State of New York to rehabilitate three bridges, two of which were located on Route 481 near Jamesville, New York, and the third being the Route 690 bridge over Geddes Street in the City of Syracuse.
The accident on October 29, 2007 involving claimant occurred at the Route 690 bridge over Geddes Street. The project at this site involved the replacement of pedestals and bearings at both ends of the bridge, underneath the beams supporting the Route 690 roadway. The work was performed from scaffolding which was hung underneath the bridge beams on the east side of Geddes Street, approximately 10 feet high off the sidewalk. In order to access this scaffolding, laborers were required to climb a ladder, and ladders for this purpose were kept in a "job box" at the Geddes Street site.
On the morning of October 29, 2007, claimant reported to the Jamesville work site, and at some point was directed by her foreman, Aaron Narolis, to go to the Geddes Street bridge site to complete painting work on the new bearings underneath the bridge.
When she arrived at the Geddes Street bridge site, claimant pulled out a separated half of an extension ladder from the "job box", which happened to be the top half of the extension ladder. There were other ladders in the "job box", but claimant stated that she simply took the one that was easiest to get to. She set the ladder up with the bottom of the side-rails on the sidewalk and the top leaning against the scaffold. She proceeded to climb up the ladder to tie it off to the scaffold, but when she was nearly at the top of the ladder (three to four rungs below the level of the scaffold plank) the ladder slipped and "kicked out" from under her, causing her to fall with the ladder to the sidewalk, approximately 10 feet below.
There is no dispute that claimant was using the top half of an extension ladder when she fell, and that this part of the ladder did not have any pivoting rubber feet on the bottom. The lower half of the extension ladder, which was not used by claimant but apparently was in the "job box", was equipped with the pivoting rubber feet. It is also undisputed that the two sections of the extension ladder had previously been taken apart by Slate Hill workers, and were used separately by them to access the scaffold from the sidewalk on Geddes Street. Claimant stated that she had never been instructed, directed, or told to use one part or the other of this ladder, and that both parts were stored in the "job box" on site.
Charles Reidman, an Assistant Traffic Engineer with the New York State Department of Transportation (DOT), was the Engineer-in-Charge on this project. His duties were to insure that the project was built according to the plans and specifications set forth in the contract. Mr. Reidman was responsible for safety on job site.
Kelly Brigham was one of the two State inspectors for this project, and she worked under the supervision of Mr. Reidman. On the day of the accident, October 29, 2007, she was working at the job site in Jamesville, and after claimant had left for the Geddes Street site, Ms. Brigham was directed by Mr. Reidman to go to that site to cover the painting operation. When she arrived, claimant had already fallen from the ladder and she was sitting by the "job box". Ms. Brigham examined the scene, and observed that the ladder was lying on the sidewalk, and that it was the top half of an extension ladder.
As stated at the outset herein, claimant now moves for summary judgment as to the issue of liability on her cause of action asserted under Labor Law § 240(1). Defendant has responded with a cross-motion, seeking dismissal of the entire claim, including not only the Section 240(1) cause of action, but also the causes of action asserted under common law, § 200, and § 241(6).
Labor Law § 240(1), commonly known as the "scaffold law", 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 protection afforded by this statute is absolute and non-delegable, and applies when there is a "significant risk inherent in the particular task because of the relative elevation at which the task must be performed" and where "[t]he contemplated hazards are those related to the effects of gravity where protective devices are called for ... because of a difference between the elevation level of the required work and a lower level" (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514).
To establish liability under Labor Law § 240(1), a claimant must demonstrate that the defendant violated the statute and that the violation proximately caused the accident (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280).
Based on the submissions with claimant's motion, there is no question that she was injured in a fall from an elevated work site, thereby establishing a prima facie case for liability under Section 240(1). Defendant, however, contends that claimant's actions were the sole proximate cause of her injuries, and therefore liability under Section 240(1) does not apply.
In Gallagher v New York Post (14 NY3d 83), the Court of Appeals articulated the sole proximate cause defense as follows: "[l]iability under Section 240(1) does not attach when [1] 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 [2] plaintiff knew he was expected to use them [3] but for no good reason chose not to do so, [4] causing an accident. In such cases, plaintiff's own negligence is the sole proximate cause of his injury" (14 NY3d 83, 88; see also Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39-40).
In Robinson v East Med. Ctr., LP (6 NY3d 550), a worker fell from a ladder that was too short for the job he was performing. The Court of Appeals determined that since the worker knew that proper ladders were available and where they were stored, his use of the inadequate, shorter ladder constituted negligence that was the sole proximate cause of his fall.
Additionally, in a Third Department case, Albert v Williams Lubricants, Inc. (35 AD3d 1115), a worker was using the top half of an extension ladder with no safety feet and was injured when the bottom of the ladder slid out from under him, causing him to fall. The Appellate Division determined, based on the fact that ladders with rubber safety feet were available on the job site, that the worker's use of the top half of the extension ladder, without safety feet, constituted the sole proximate cause of the accident and dismissed his Section 240(1) claim.
In this particular matter, based on facts very similar to the Albert case, defendant has submitted the Affidavit of Martin J. Schooley, Project Superintendent for Slate, who states that there were ladders available, with rubber safety feet, at the Geddes Street job site.
However, claimant, in her submissions, has stated that the separate halves of the extension ladder were used interchangeably at the Geddes Street job site, and had been so used over the course of the project. Accordingly, the Court finds that questions of fact exist as to whether claimant was aware that an appropriate ladder was readily available at the site, whether she was expected to only use the bottom half of the extension ladder, whether any orders had been given to claimant that she was only to use the bottom half of the ladder, and whether she unreasonably chose not to use it.
Since the Court's role on a summary judgment motion is issue-finding rather than issue-determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395), and since this Court has found that material issues of fact exist, the respective motions made by both parties for summary judgment on the Section 240(1) cause of action must be denied.
COMMON LAW/LABOR LAW § 200:
In its cross-motion, defendant seeks dismissal of any cause of action asserted under the common law or Labor Law § 200. Section 200 of the Labor Law is a codification of the common law duty imposed on owners and general contractors to provide a safe place to work (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343; Allen v Cloutier Constr. Corp., 44 NY2d 290). However, in cases where the alleged defect or dangerous condition arises from the contractor's methods of performing the work, and the owner exercised no supervisory control over the activity, no liability attaches to the owner under either the common law or Labor Law § 200 (Comes v New York State Electric & Gas Corp., 82 NY2d 876). Furthermore, general supervisory authority at the work site for purposes of overseeing the progress of the work is insufficient to impose liability (Fisher v WNY Bus Parts, Inc., 12 AD3d 1138).
In this particular matter, the deposition testimony of Charles Reidman, the Engineer-in-Charge for the State on this project, established, without contradiction, that although he had responsibility for safety on the job site, neither he nor the State inspectors on site exercised any direction or control over the claimant's work activities, nor is there any indication that they had the authority to do so. Accordingly, claimant has no viable cause of action under either the common law or Labor Law § 200, and defendant is entitled to summary judgment in regard to these claims.
In its cross-motion, defendant also seeks summary judgment dismissing the cause of action asserting a claim under Labor Law § 241(6). This section imposes a non-delegable duty of reasonable care upon owners and contractors to provide reasonable and adequate protection to those persons engaged in construction, excavation or demolition work (Rizzuto v L.A. Wenger Contr. Co., supra; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494). In order to impose liability under Section 241(6), a claimant must establish that there was a violation of a regulation setting forth a specific standard of conduct (Ross v Curtis-Palmer Hydro-Elec. Co., supra). Therefore, in order to establish a prima facie case under Section 241(6), a claimant must establish that the defendant violated an Industrial Code regulation; that such regulation was sufficiently specific; and that the violation was the proximate cause of claimant's injuries.
In his Responsive Memorandum of Law (Item 8), claimant's attorney makes reference to certain specific sections of Industrial Code Part 23 which were allegedly violated by the defendant in this matter.
12 NYCRR 23-1.21(a) requires the use of "approved" ladders. It is acknowledged that in this particular case, claimant used one-half of a broken-apart extension ladder, without rubber feet. Claimant has therefore raised a question of fact as to whether such use is considered use of an "approved" ladder.
Claimant also alleges a violation of 12 NYCRR 23-1.21(b)(4)(ii), which requires that ladder footings be firm and that slippery surfaces not be used as ladder footings. Claimant has acknowledged that the ladder was not placed on a slippery or unstable object, and therefore this section is not applicable to the case herein (Arigo v Spencer, 39 AD3d 1143).
Claimant has also alleged a violation of 12 NYCRR 23-1.21(b)(4)(iv), which requires that when work is being performed from a ladder between six and ten feet above the ladder footing, the leaning ladder shall be held in place by a person stationed at the foot of such ladder, unless the upper end is secured against side slip. In this particular matter, it is acknowledged that claimant was attempting to tie-off the ladder when it kicked out, causing claimant to fall. It is further undisputed that at this time, there was no one stationed at the foot of the ladder. Claimant has therefore raised an issue of fact as to whether she was performing work at the time that she fell, and therefore whether this section is applicable to the case herein.
Finally, claimant has also alleged a violation of 12 NYCRR 23-1.7(b)(2)(i), which requires the use of approved safety belts for persons performing structural or construction work over highways or railroads open to public traffic. On the day in question, claimant was directed to perform painting work on the bearings underneath the bridge, which were located between the pedestals and beams of the bridge at the top of the bridge abutment. The photographic exhibits included with claimant's motion papers (Items 1,2) establish that the top of the abutment where the pedestals and bearings were located was not over the road or highway, and that the scaffolding was set up over the sidewalk area, not over the road or highway. Since claimant was not instructed to do any painting work in any area under the bridge which was over the highway, this section is not applicable to the case herein.
Accordingly, based on the foregoing, claimant has raised questions of fact regarding the applicability of certain provisions of Industrial Code sections, and therefore her Labor Law § 241(6) is not subject to dismissal at this stage of the proceedings.
In sum, neither party has established their right to summary judgment on claimant's Labor Law § 240(1) cause of action; no issues of fact have been raised a to requisite control or supervision necessary to invoke common law or Labor Law § 200 protections; and questions of fact remain as to the applicability of certain Industrial Code sections cited under claimant's Labor Law § 241(6) cause of action.
Based upon the foregoing, it is therefore
ORDERED, that claimant's motion for summary judgment (M-78658) is hereby DENIED; and it is further
ORDERED, that defendant's cross-motion seeking summary judgment (CM-79098) is denied with respect to the Labor Law § 240(1) cause of action; granted with respect to claimant's Labor Law § 200 and common law causes of action; and denied with respect to claimant's Labor Law § 241(6) cause of action.
December 23, 2011
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims