Opinion
Index No. 2017-2041
02-06-2020
MICHAEL O'NEILL and URSULA O'NEILL, Plaintiffs, v. VILLAGE OF WELLSBURG and ELMIRA STRUCTURES, INC., Defendants.
APPEARANCES: Plaintiffs: Edward Steinberg, Esq. Daniela F. Henriques, Esq Leav & Steinberg, LLP 75 Broad Street, Suite 1601 New York, New York 10004 Defendants: Elsie Cassar, Esq. Law Offices of Destin C. Santacrose 535 Washington Street, Suite 403 Buffalo, New York 14203
At a Motion Term of the Supreme Court of the State of New York held in and for the Sixth Judicial District on the 24th day of January, 2020. PRESENT: DECISION AND ORDER RJI No. 2018-0085 APPEARANCES: Plaintiffs: Edward Steinberg, Esq.
Daniela F. Henriques, Esq
Leav & Steinberg, LLP
75 Broad Street, Suite 1601
New York, New York 10004 Defendants: Elsie Cassar, Esq.
Law Offices of Destin C. Santacrose
535 Washington Street, Suite 403
Buffalo, New York 14203 OLIVER N. BLAISE , III, J.S.C.
This Decision and Order addresses defendants' motion for summary judgment dismissing the complaint in its entirety, as well as plaintiffs' cross-motion for partial summary judgment on liability on their negligence, Labor Law §§ 200, 240(1) and 241(6) causes of action.
The court heard oral argument from counsel on January 24, 2020.
BACKGROUND
This accident occurred on October 13, 2016 at a construction site known as the Wellsburg Volunteer Fire Station located in Wellsburg, New York. Plaintiff Michael O'Neill was employed by Duffek Contracting, Inc. (Duffek) that had entered into a subcontractor agreement with defendant Elmira Structures, Inc. (ESI) to frame the interior building. At the time of this accident, plaintiff was in the process of framing an interior wall, together with the Duffek foreman on this project, William Gamble.
The term "plaintiff" will refer to Michael O'Neill only as the claim of Ursula O'Neill is derivative in nature.
The court will rely upon plaintiff's description of the accident as set forth in the transcripts of his deposition and GML § 50-h hearing (Plaintiff's Exhibits K & L, respectively).
Plaintiff first described the general process that he and Gamble had used to install tracking and studs in the rest of the building in the two to three weeks prior to this accident (Pl Ex L, 48). Once the tracks were installed and the studs were ready to go in the tracks, plaintiff explained that he and Gamble used a two person process that included both of them going up in a scissor lift with the studs, transfer a stud upright against the tracking, then plaintiff would hold the stud in place, Gamble would clamp it, then plaintiff would get the screw gun and screw the stud into the track, with Gamble checking placement with a laser light (Pl Ex L, pp 51-52).
On the day of this accident, plaintiff said he was instructed by Gamble to go up on the scissor lift alone with Gamble remaining below (Pl Ex L, p 53). Plaintiff stated that he raised the lift to approximately 10-15 feet off the ground and Gamble handed a stud to plaintiff. Plaintiff stated that he was holding the bottom of the stud, "[n]ear the bottom of it. I had lifted it, hoisted it way above my head to get it to where it's supposed to be, so, to be clear, it was just not much. I had the lower part" (Pl Ex L, p 60). Plaintiff explained that he had difficulty manipulating the stud between an overhead beam and insulation hanging down from the ceiling (Pl Ex L, pp 53-54). Plaintiff continued his description of the accident in detail as follows:
[a]nd after he had handed it to me and 1 am looking up to get it up in there so I can clamp it - - I had to clamp it and try to hold it there. The clamps didn't work very often. It's a heavy thing, very often a long piece of metal, and I would have to take the screw gun, and I would have to take the screw gun and screw it in there, into the frame of the wall. There was a, no track up there. It didn't require a track. The track was on the bottom.
And, as I was reaching for my clamp, I am uncertain whether [Gamble] let go of it. I thought he might have let go of it. 1 am uncertain. All I know is that it started sliding down off the wall and, before I could even clamp it to the wall, it started sliding down off the wall. The entire stud was up above me. I was trying to get into the ceiling there against the wall, and it started sliding down through my hand, and I attempted to hold it.
I was still -- remember that he was below me, I didn't want him to get hurt, so I tried to hold it until it started continually sliding off the wall and falling down, and it was doing a number on my finger, severing it, cutting it, and I did let it go after it started hurting a great deal and it fell
down and crashed to the floor. It was too heavy to hold up. It started sliding down on its own.(Pl Ex L, p 54-55).
So, in sum, as plaintiff held the stud with his left hand and reached for his clamp with his right hand, the stud began to slide off the wall to the floor below and towards Gamble, so plaintiff grasped the stud to protect his co-worker below. Plaintiff described the stud as 12-16 feet in length with very thin edges, very sharp, awkward, heavy and bulky (Pl Ex K, pp 36-37). As the stud fell off the wall to the floor and through plaintiff's grasp it sliced plaintiff's left thumb causing significant injuries. This litigation ensued and the parties have presented their respective summary judgment motions for determination.
DISCUSSION
It is well-settled that on a motion for summary judgment, the moving party must present evidentiary facts that establish the party's right to judgment as a matter of law, while the opposing party must present evidentiary proof in admissible form that demonstrates the existence of a factual issue (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068 [1979]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Moreover, the court must accept the non-moving party's evidence as true and grant them every favorable inference (Hourigan v McGarry, 106 AD2d 845 [3d Dept 1984], lv dismissed 65 NY2d 637 [1985]).
I. LABOR LAW § 240 (1)
Labor Law § 240 (1) states, in pertinent part, that:
[a]ll contractors and owners and their agents...in the erection, demolition, repairing, altering, painting, cleaning or painting 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.
A plaintiff is entitled to recovery under Labor Law § 240(1) upon a determination of whether the injury sustained is the type of elevation-related hazard to which the statute applies rather than the usual and ordinary dangers of a construction site (Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 7 [2011]; Oakes v Wal-Mart Real Estate Bus. Trust, 99 AD3d 31, 35 [3d Dept 2012]). Moreover, it is well-settled that the mere fact that a plaintiff was struck by a falling object does not, in and of itself, give rise to liability under the statute (Christiansen v Bonacio Constr., Inc., 129 AD3d 1156, 1157 [3d Dept 2015]). Rather, a plaintiff must establish that "[t]he object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute" (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 268 [2001] [emphasis omitted]). Thus, this court must determine whether this accident involved the type of elevation-related hazard covered by the statute and, if it did, whether a safety device was required for these materials (Wiley v Marjam Supply Co., Inc., 166 AD3d 1106 [3d Dept 2018], lv denied 33 NY3d 908 [2019]).
Additionally, although comparative negligence is not a defense (Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]), there can be no liability under Labor Law § 240(1) when a plaintiff's actions are the sole proximate cause of the accident such as when a plaintiff decides not to use a provided safety device (Robinson v East Med. Ctr., LP, 6 NY3d 550 [2006]). Accordingly, the court will also address the issue of sole proximate cause.
A. Elevated Risk
Defendants argue that this accident did not involve an elevation-related risk such that Labor Law § 240 (1) is not triggered. Plaintiff opposes the motion and seeks partial summary judgment on liability.
Defendants argue that the Court of Appeals case of Narducci v Manhasset Bay Assoc., 96 NY2d 259 (2001), is a set of facts almost identical to this case wherein the Court determined Labor Law § 240 (1) did not apply. This court finds Narducci distinguishable or, at the least, that the facts of this case are not yet sufficiently resolved to make that determination. In Narducci, plaintiff was struck by falling glass while renovating a building, but the glass was not a material being hoisted or loaded requiring securing. Stated another way, the glass that fell was part of the pre-existing building and was not part of the construction project. Here, the metal stud that fell was a critical component of this construction project and was being handed from ground level up to plaintiff, who was on the lift and attempted to hold the 12-16 foot stud over his head with one hand while reaching for a clamp with the other hand.
Plaintiff contends that the Court of Appeals decision in Runner v New York Stock Exch., Inc., 13 NY3d 599 (2009), is more applicable here. In Runner, plaintiff and several co-workers were attempting to move an 800 pound reel of wire down a flight of stairs using a makeshift pulley system, with the plaintiff and his fellow workers acting as a counterweight to the reel as it descended the stairs. Plaintiff suffered injuries to his hands when he was pulled into a crossbeam that had been set at the top of the stairs to control the speed of the reel's descent. The Court of Appeals stated that the "[d]ecisive question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk from a physically significant elevation differential" (Id.at 603).
This court finds that Runner is more instructive under the circumstances of the present case. The Court of Appeals has stated that "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 directly flowing from the application of the force of gravity to an object or person" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993] [emphasis in original]). In Runner, the Court of Appeals further elaborated that "[t]he applicability of the statute in a falling object case...does not under this essential formulation depend upon whether the object has hit the worker. The relevant inquiry...is rather whether the harm flows directly from the application of the force of gravity to the object" (Runner, 13 NY3d at 604). In Runner, the Court determined that plaintiff was protected by § 240(1) as a direct consequence of gravity as much as a worker who would have been struck by the reel as it descended the stairs as there would be "no sensible basis to deny plaintiff the same legal recourse" (Id.). The Court further stated that the elevation differential involved "[c]annot be viewed as de minimis, particularly given the weight of the object and the amount of force it was capable of generating, even over the course of a relatively short descent" (Id. at 605).
Here, the court accepts plaintiff's version of events that the stud he was handling was approximately 12 to 16 feet in length, weighed upwards of 7 pounds, had very thin edges, was very sharp, and was awkward to hold and was extended in one hand well above the level of his head. In addition, plaintiff was approximately 10-15 feet above ground level, meaning that the top of the stud was nearly 30 feet above the ground, and his co-worker was stationed below him. When he lost control of the stud and it slipped through his grasp, it fell to the floor many feet below, owing directly to the application of gravity. As in Runner, the application of gravity on the stud, in light of its shape, size and distance from the ground, could be deemed consequential because of its potential to cause injury. The court is also mindful of plaintiff's testimony that he held onto the metal stud because he knew Gamble was below him and he "didn't want him to get hurt" - clearly a decision that would not have been made if plaintiff and the stud were indeed on the same level (Pl Ex L, p 55). Pursuant to Runner, this court finds a reasonable finder of fact could determine that plaintiff is entitled to protection from the consequences of the falling stud, just as Gamble would be if he (Gamble) had been struck by the falling stud. Thus, the court is unable to conclude that this accident did not involve an elevation-related risk as a matter of law.
Plaintiff has cross-moved for summary judgment on his § 240(1) claim and contends that his position on the lift, approximately 10-15 feet above the ground, with the metal stud further elevated in his hand, triggered the statute's protections. Defendants counter that there was not a meaningful elevation differential between plaintiff and the stud that injured him (i.e., plaintiff was holding the item that injured him at the same level he was standing, so gravity had no significant impact on the stud). Applying the analysis in Runner of assessing the role of gravity on the falling object, as set forth hereinabove, this court concludes that a finder of fact could determine that plaintiff would have sustained basically the same injury regardless of whether he was in the lift or on the ground. In other words, the accident occurred when the base of the stud slipped through plaintiff's grasp, and the resultant injury would have been the same regardless of plaintiff's elevation. Thus, the court is unable to conclude that this accident did involve an elevation-related risk as a matter of law.
B. Safety Device
In Narducci, the Court of Appeals stated "[a] plaintiff must show that the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute [citations omitted]" (Narducci, 96 NY2d at 268). Defendants argue that the materials being lifted - the metal stud - did not require the use of an enumerated safety device under Labor Law § 240(1), while plaintiff argues to the contrary.
Defendants' expert Douglas D. Miller opines that the metal stud that plaintiff was installing at the time weighed approximately 1-1½ pounds and was 12-16 feet long and, as such, was not the type of material requiring a hoist or other securing device (Def Ex N). In reaching this conclusion, Miller offers only the following statement in support of that conclusion, namely that "[h]oists are not standard equipment used for this kind of work...it would not be appropriate for a hoist to be available on the job site for use with this purpose" (Def Ex N, ¶ 10). Defendants simply argue that the danger, if any, in handling this metal stud was a normal type of risk posed on a construction site.
Plaintiff's expert, Leo J. DeBobes, opines that the use of specific safety equipment, such as a material lift or protective gloves, could have prevented the happening of the accident at issue. For instance, DeBobes avers that "[t]he materials should have been positioned and secured by two people, rather than [plaintiff] being required to lift, position, stabilize, and secure the materials overhead singlehandedly" (DeBobes Aff, ¶ 40). Moreover, despite plaintiff's testimony that he could not have used gloves due to the fine work necessary to manipulate the studs, DeBobes opines that plaintiff was not properly educated on "[t]he existence of suitable hand protection that would have also provided him with the dexterity needed to accomplish his tasks" (DeBobes Aff, ¶ 42), Finally, plaintiff's expert estimates each stud weighed between 5.4 pounds to 7.2 pounds and cites to actual contract specifications and manufacturer's literature in support of that estimate (DeBobes Aff, ¶ 37).
The court notes that Gamble was in the lift with plaintiff for the placement of studs in other areas of the building, which could raise a question to the finder of fact about the propriety of plaintiff working in the lift unassisted.
Simply stated, this court is faced with competing expert opinions. The court cannot conclude on this record as a matter of law whether work gloves, a hoist or other securing device, including the use of two people, were required to perform this task. In view of the foregoing, the court concludes that on the issue of whether a safety device was required for these materials, it is faced with classic battle of the experts that may not be resolved on a motion for summary judgment (Corbett v County of Onondaga, 291 AD2d 886, 887 [4th Dept 2002]).
C. Sole Proximate Cause
Next, the court turns to the issue of sole proximate cause. It is well-settled that "[n]egligence, if any, of the injured worker is of no consequence [citation omitted]" (Rocovich, 78 NY2d at 513), but that a plaintiff who is the sole proximate cause of the accident will be barred from recovery.
Here, defendants argue plaintiff was the sole proximate cause of this accident because he was provided with appropriate safety devices, namely the clamps to hold the studs in place and failed to properly use the same (Def Memorandum of Law, p 5; Miller Aff, ¶ 12). Defendants' expert Miller further states that plaintiff was the sole proximate cause of this accident due to his "improper positioning of the metal stud seconds prior to his accident" (Miller Aff, ¶ 14).
Plaintiff opposes the sole proximate cause argument with their own expert, DeBobes. In response to Miller's opinion that plaintiff improperly positioned the stud, plaintiff argues that Miller failed to take into account plaintiff's need to manipulate this stud around the beam and insulation. With respect to the clamps, Miller avers the clamps were sufficient for the task because the studs weighed only 1.5 pounds whereas plaintiff's expert estimates the studs weighed 5-7 pounds each (DeBobes Aff, ¶ 37). Further, plaintiff's expert notes that plaintiff never had the chance to use the clamps because the stud fell before he could reach the clamp. Thus, again, the court is faced with a battle of the experts on the issue of sole proximate cause warranting denial to either party on this issue (Corbett, 291 AD2d 886).
In view of the foregoing, the court finds that there are genuine issues of material fact as to whether this accident involved an elevation-related risk, whether any of the enumerated safety devices were necessary, and whether plaintiff's conduct was the sole proximate cause of his injury. Accordingly, defendants' motion for summary judgment and plaintiff's cross-motion for summary judgment on the Labor Law § 240(1) claim are both denied.
II. LABOR LAW § 241 (6)
Labor Law § 241(6) mandates owners and contractors provide reasonable and adequate protection and safety for workers by requiring them to comply with specific safety rules and regulations promulgated by the Commissioner of the Department of Labor, as opposed to general safety standards regulations (Ross, 81 NY2d at 501-502). The Commissioner's rules, known as the State Industrial Code, are contained in Title 12 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("NYCRR"). This duty is nondelegable, and the injured party need not show that a landowner exercised supervision and control over the work site (Long v Forest-Fehlhaber, 55 NY2d 154, 159 [1982]). Stated another way, "[t]he general contractor (or owner, as the case may be) is vicariously liable without regard to his or her fault [citations omitted]" (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 350 [1998]). In sum, in order to establish a claim under Labor Law § 241(6), "[a] plaintiff must show the applicability of a specific provision of the Industrial Code to the relevant work, a violation of the regulation, and that such violation constituted causally related negligence [citations omitted]" (Copp v City of Elmira, 31 AD3d 899, 899 [3d Dept 2006]).
Plaintiff's affirmation in opposition relies upon State Industrial Code sections including 12 NYCRR §§ 23-1.5(c), (c)(3), 23-9.2(a), 23-9.2(b)(2) and 23-6.1 to support his Labor Law § 241(6) cause of action. The court will consider these provisions notwithstanding any delay on plaintiff's part in confirming which provisions he was relying upon (Mills v Niagara Mohawk Power Corp., 262 AD2d 901, 902 [3d Dept 1999]).
The court must determine whether the cited provisions are general or specific enough to support a Labor Law § 241(6) cause of action; and if sufficiently specific, whether the provision applies to the facts of this case and was a cause of the accident. However, for purposes of argument, the court will assume that all the sections relied upon are sufficiently specific to support a Labor Law § 241(6) cause of action and address the issue of applicability to the facts in this case.
Plaintiff argues that all the cited sections are applicable to this case. However, the court notes that all of sections relate to the maintenance, care and/or use of the scissor lift. Plaintiff argues that the scissor lift was involved in this accident including that it was insufficient to handle the job, wobbly, not large enough for the studs and that plaintiff was not trained or qualified to operate the same. The court finds that case law dictates that a scissor lift is designed to protect the worker from falling (Narducci, 96 NY2d at 269). Here, plaintiff did not fall and cannot rely upon the cited code provisions relating to scissor lifts. Moreover, plaintiff testified that he could not blame the scissor lift for this accident (Pl Ex K, p 57). Thus, the court finds that the cited provisions are inapplicable to the case at bar. Accordingly, defendants' motion for summary judgment dismissing this cause of action must be granted and plaintiff's cross-motion is denied.
III. Labor Law § 200/Negligence
Labor Law § 200 is "[a] codification of the common-law duty of an owner or contractor to exercise reasonable care to provide workers with a safe place to work [citations omitted]" (Miller v Wilmorite, Inc., 231 AD2d 843, 843 [4th Dept 1996]). Plaintiff must establish defendants had the authority to control his work and neither created nor had actual or constructive notice of any dangerous condition (Maloney v J.W. Pfeil & Co., Inc., 84 AD3d 1632 [3d Dept 2011]). Moreover, it is well-settled that "[g]eneral supervisory authority at the work site for the purpose of overseeing the progress of the work and inspecting the work product has been found insufficient to establish a cause of action under Labor Law § 200 [citations omitted]" (Riccio v Shaker Pine, 262 AD2d 746, 748 [3d Dept 1999], lv denied 93 NY2d 1042 [1999]).
Upon a review of this record, the court finds no proof that plaintiff ever received instructions from either defendant regarding how or where to conduct his work in any manner. Plaintiff states that he reported only to Duffek employees including Gamble (and another person identified only as Frank) and received safety training from his employer and union. Nancy Craig, the Village Clerk Treasurer, stated in her deposition that the Village did not direct the work done by plaintiff's employer, Duffek, or provide any materials or equipment (Def Ex K, pp 25-26). Likewise, ESI vice president Jared Vieselmeyer testified in his deposition that ESI neither directed Duffek's work or provided any materials or equipment (Def Ex I, p 27). The court finds defendants have satisfied their burden of proof thereby shifting the burden of proof to plaintiffs. In opposition, plaintiff's opposing papers are silent on this issue and plaintiff's counsel conceded as much during oral argument. Thus, plaintiff has failed to come forward with any evidentiary proof raising a question of fact on these issues. Accordingly, defendants' motion for summary judgment with respect to Labor Law § 200 and common law negligence is granted and plaintiff's motion for summary judgment thereon is denied.
CONCLUSION
For the reasons stated, the court finds as follows:
1. With respect to the Labor Law §240(1) cause of action, both defendants' motion for summary judgment and plaintiff's cross-motion for summary judgment are DENIED;
2. With respect to the Labor Law § 241(6) cause of action, defendants' motion for summary judgment is GRANTED and plaintiff's cross-motion for summary judgment is DENIED; and
3. With respect to the negligence and Labor Law § 200 causes of action, defendants' motion for summary judgment is GRANTED and plaintiff's cross-motion for summary judgment is DENIED.
The foregoing constitutes an order of the court.
A note of issue was filed on June 13, 2019 but has been held in abeyance pending a resolution of these motions. The court will schedule a pre-trial conference with counsel as soon as practicable.
It is so ordered. Dated: February 6, 2020
Binghamton, New York
/s/_________
HON. OLIVER N. BLAISE, III
Justice, Supreme Court
The court considered the following papers which are on file in the Chemung County Clerk's Office, together with all prior papers and pleadings: 1. Defendants' Notice of Motion for Summary Judgment dated September 23, 2019; 2. Attorney Affidavit of Elise L. Cassar, Esq. sworn to September 23, 2019 with Exhibits A-N; 3. Affidavit of Timothy Duffek sworn to September 18, 2019 (annexed as Exhibit M); 4. Affidavit of Douglas D. Miller sworn to September 20, 2019 with exhibit (annexed as Exhibit N); 5. Defendants' Memorandum of Law dated September 23, 2019; 6. Attorney Affidavit of Elise L. Cassar, Esq. dated November 11, 2019; 7. Plaintiff's Notice of Motion dated October 8, 2019; 8. Affirmation of Daniela F. Henriques, Esq. dated October 8, 2019 with Exhibits A-P; 9. Plaintiff's Expert Witness Affidavit of Leo J. DeBobes sworn to October 8, 2019 with Exhibits (and annexed as Exhibit A); and 10. Plaintiff's Affirmation in Opposition of Daniela F. Henriques, Esq. dated November 15, 2019.