Notice of Cross-Motion, Affirmation of James C. Grosso, Esq., Affidavit of
Joshua Westervelt, Affidavit of George Goodway, with Exhibits 5,6,7,8
Memorandum of Law (In Support of Cross-Motion No. CM-62026) 9
Attorney's Reply Affirmation of Mark J. Valerio, Esq. 10
There is no dispute as to the facts surrounding this claim. On June 25, 1999,
was employed as a carpenter by The
Pike Co., Inc., which had been hired by the State to perform work in the
construction of the Seneca Correctional Facility in the Town of Romulus, Seneca
On that day, claimant was assisting in the removal of steel forms from a wall.
These steel panels, approximately 12 ½ feet tall and 10 to 12 feet wide,
were used to form concrete walls, and then were removed once the concrete had
cured. They were joined together side-by-side by approximately 15 2-inch steel
bolts placed along a vertical path. In order to remove a panel, the bolts would
first be removed. A chain would then be draped around the bucket end of an
excavator, and each end of the chain would then be attached to posts on the top
side of the steel form that was to be removed. The operator of the excavator
would then pull the bucket away from the wall, causing the panel to break away
from the concrete.
At the time this accident occurred, claimant was standing on the top of the
wall, approximately 12 feet above the ground. His job was to attach the chain
to the top posts of the steel form before each form was removed, and to signal
the operator of the excavator when it was time to move the excavator bucket away
from the wall. Claimant was wearing a safety harness and lanyard, which was
approximately six feet long and which was tied off to the top of the adjacent
steel form next to the one that was to be removed.
Claimant stated (see Item 3) that shortly before the accident occurred, he had
removed 12 of the 15 bolts which connected the form to be removed to the form to
which claimant's lanyard was attached. Claimant stated that he left three bolts
in place (one on the top, one in the middle, and one on the bottom) in order to
hold the form in place until it was ready to be removed.
Claimant, who was tied off with his lanyard to the adjacent form, signaled the
operator of the excavator to start pulling on the form to be removed, assuming
that the three bolts which he had left in place had been removed by a co-worker.
As the operator started pulling on the form, the adjacent form (to which
claimant's lanyard was attached) also started to pull away from the wall, since
it was still connected by the three bolts. Since claimant's lanyard was
attached to this adjacent form, he was pulled off of the wall by the movement of
the forms and fell into the gap between the steel form and the concrete wall.
The safety lanyard did not break and prevented claimant from falling to the
ground. However, almost instantaneously, as claimant was suspended between the
steel form and the wall, the form swung back and pinned him between the wall and
the form, crushing his hip.
Labor Law, § 240(1) provides, in pertinent part that "[a]ll contractors
and owners and their agents, except owners of one and two-family dwellings who
contract for but do not direct or control the work, 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 protection to a person so employed."
Claimant contends that the injuries he suffered were a proximate result of the
failure of the safety devices to prevent him from falling, or to protect him
from injury in the event that he did fall, and therefore Labor Law § 240(1)
should apply. Defendant, on the other hand, contends that the injuries suffered
by claimant did not occur as a result of the fall, but as a result of the steel
form which swung back and struck him. The safety devices utilized by claimant
prevented him from falling to the ground and being injured as a result of the
fall. Furthermore, defendant argues that since claimant was injured by an
object which swung into him while he was at the same level as that object,
claimant cannot contend that he was struck by a falling object. Finally,
defendant also argues that if the Court finds that the provisions of Labor Law
§ 240(1) do apply to the facts herein, that claimant's conduct was the sole
proximate cause of the accident, and therefore liability should not attach.
There can be no dispute that claimant was involved in the type of work intended
to be covered by Labor Law § 240(1). He was required to stand on top of a
wall approximately 10 to 12 feet above the ground, which certainly would
classify as an elevated work site that required the use and proper placement of
protective devices as set forth in § 240(1). In fact, claimant was
utilizing a safety harness and lanyard which, although it did not prevent his
fall, did prevent claimant from falling to the ground.
The fact that claimant did not fall to the ground, however, does not
necessarily deprive claimant from the protection of Labor Law § 240(1).
(See, Brown v Niagara Mohawk Power Corporation, 188 AD2d 1014). The
issue before the Court is whether the injuries suffered by claimant were the
proximate result of the failure of the devices he was using to provide him with
"proper protection" under § 240(1), even though he did not fall to the
ground and even though his injuries did not result from the impact of this fall
(see, Gordon v Eastern Railway Supply Inc, 82 NY2d 555). In other words,
if the protection provided by the defendant did not serve the core objective of
the statute, i.e., preventing the claimant from an elevator-related risk, then
the defendant is absolutely liable for the failure to provide "proper
protection." (See, Gordon v Eastern Railway Supply, Inc., supra).
In Girty v Niagara Mohawk Power Corporation, 262 AD2d 1012, the
Appellate Division, Fourth Department, was faced with similar factual
circumstances. In that case, a lineman was working on a telephone pole and was
secured to the pole by gaffs which he wore around his legs and which were
inserted into the pole. The lineman also had a safety belt which was attached
to a cable line above him. As he was working on the pole, a truck struck a
steel support wire, causing the pole to shake violently, and jarring his gaffs
out of the pole. The lineman then fell approximately one foot when his safety
belt caught on the cable line above him, thereby preventing him from falling to
the ground. However, as he hung suspended from the pole, he was slammed several
times into the pole, suffering his injuries. In that situation, the Appellate
Division found that the lineman was entitled to the protection of § 240(1),
and that his injuries were the proximate result of the failure of his protective
devices to provide him with proper protection, even though he did not fall to
the ground and his injuries did not result solely from the impact of his fall
(see, Girty v Niagara Mohawk Power Corporation, supra).
Applying the same rational to the facts of this case, the Court finds that even
though claimant did not fall to the ground, and even though his injuries did not
result solely from the impact of his fall, the protective devices utilized by
claimant were insufficient to prevent his injuries, and claimant is therefore
entitled to the protections afforded by Labor Law, § 240(1).
Defendant also contends that claimant's failure to remove the three bolts
(which secured the steel form being removed to the form to which claimant's
safety devices were attached), and his subsequent signal to the operator of the
excavator directing him to remove the form, constituted the sole proximate cause
of the accident, thereby negating the protection of § 240(1). It is well
settled, however, that ordinary negligence attributable to the injured worker is
no defense to the absolute liability provided by § 240(1). (See, Zimmer
v Chemung County Performing Arts, Inc., 65 NY2d 513). Although it is quite
possible that claimant's actions may have contributed to his fall, it is equally
clear that the point at which claimant's safety lanyard was attached was not
secure enough to prevent his fall (see, Atwell v Mountain Ltd., 184 AD2d
Accordingly, since it cannot be found that claimant's actions were the sole
proximate cause of his injuries, he is entitled to the protection of Labor Law
§ 240(1), and is entitled to summary judgment as to the issue of liability.
Accordingly, Motion No. M-61755 is hereby GRANTED; and it is further
ORDERED, that Cross-Motion No. CM-62026 is hereby DENIED; and it is
ORDERED, that the Clerk of the Court is directed to enter an interlocutory
judgment on the issue of liability in favor of the claimants in accordance with
this decision and order. The Court will set this matter down for a trial
limited solely to the issue of damages as soon as reasonably practicable.