Opinion
March 8, 1996
Appeal from the Supreme Court, Erie County, Gorski, J.
Present — Lawton, J.P., Fallon, Doerr, Balio and Davis, JJ.
Order modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in denying plaintiff's motion for partial summary judgment on liability on the Labor Law § 240 (1) cause of action and in granting defendants' cross motion for summary judgment dismissing that cause of action. Donald Smith (plaintiff) was injured when a payloader's hydraulically operated bucket malfunctioned while it was positioning a mobile home unit over the worksite, causing the unit to fall on plaintiff's thumb and index finger.
Defendants "had a nondelegable duty to provide proper safety devices to protect workers from injury `in circumstances where there are risks related to elevation differentials' ( Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 514; see also, Gordon v Eastern Ry. Supply, 82 N.Y.2d 555; Salzer v New York Tel. Co. [ 192 A.D.2d 1104]), including the risk of being struck by falling objects ( see, Fitzgibbons v Olympia York Battery Park Co., 182 A.D.2d 1069, 1070)" ( McCloud v Rochester Gas Elec. Corp., 203 A.D.2d 923). "In other words, 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. The right of recovery afforded by the statute does not extend to other types of harm, even if the harm in question was caused by an inadequate, malfunctioning or defectively designed scaffold, stay or hoist" ( Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501). The bucket in these circumstances was the functional equivalent of a hoist. The malfunctioning of the bucket resulted in a failure to protect plaintiff from injury, making defendants absolutely liable under Labor Law § 240 (1) for failure to provide safety devices or safeguards "so constructed, placed and operated as to give proper protection to a person so employed" (Labor Law § 240). Here, plaintiff was faced with the special risks contemplated by that statute ( see, Ross v Curtis-Palmer Hydro-Elec. Co., supra, at 501).
All concur except Lawton, J.P., and Doerr, J., who dissent in part and vote to affirm in the following Memorandum.
We respectfully dissent for reasons stated in the decision at Supreme Court and upon the authority of Misseritti v Mark IV Constr. Co. ( 86 N.Y.2d 487) and Rodriguez v Tietz Ctr. for Nursing Care ( 84 N.Y.2d 841; see also, Abreu v Manhattan Plaza Assocs., 214 A.D.2d 526, lv denied 86 N.Y.2d 707; Genco v City of New York, 211 A.D.2d 615, lv denied 85 N.Y.2d 806; Schreiner v Cremosa Cheese Corp., 202 A.D.2d 657). Consequently, we would affirm.