New York State Court of Claims

New York State Court of Claims

CHICK v. THE STATE OF NEW YORK, #2001-005-520, Claim No. 98357, Motion Nos. M-61386, CM-61579


Claimant's motion for summary judgment and Defendant's cross-motion for dismissal of the claim are both denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
Nicholas, Perot & Strauss, P.C.
By: Lawrence J. Strauss, Esq.
Defendant's attorney:
Law Offices of Roger G. Preston, Jr.
By: F. Robert Michel, Esq.
Third-party defendant's attorney:

Signature date:
July 9, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 6, were read on motion by Claimant for partial summary judgment in his favor and on cross-motion by Defendant for dismissal of two causes of action:

1, 2 Notice of Motion, Affidavit and Exhibits Annexed

3, 4 Opposing Affidavit and Exhibits Annexed

5, 6 Filed Papers: Claim, Answer

Upon the foregoing papers, the motions are denied.

This claim arose on February 21, 1998, when Claimant Joseph Chick fell and injured his back while working for Quality Structures, a firm hired by the State to build a new addition to the Albion Correctional Facility. At the time of the incident, Claimant was working on the top of a second story cell block and, while walking toward the edge to retrieve a torch from a co-worker who was coming up the ladder, his right foot fell into a "pipe chase," an opening in the corner of the cell block into which plumbing pipes are run. He did not fall through to the floor below because his other leg remained outside the opening. Claimant contends that because the injury he sustained resulted from a gravity-related danger and there were no safety devices to protect workers from a fall, the State is liable pursuant to §240(1) of the Labor Law, while Defendant maintains that that statute is inapplicable because Claimant did not fall from his work surface to a lower level. In addition, the State seeks dismissal of the cause of action based on Labor Law §200 on the ground that it did not supervise or otherwise control Claimant's work activities.[1]

The protection provided by Labor Law §240(1) is aimed only at elevation-related hazards and only at those injuries that result from the absence or defective condition of the types of safety devices referred to in the statute: "scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices." When devices such as these would not have prevented the injury, liability does not arise. In Rocovich v Consolidated Edison Co. (78 NY2d 509, 514-515), for example, a worker fell into a 12-inch deep trough filled with hot oil, but the Court of Appeals held that this injury did not fall within the ambit of the statute because the presence of the trough did not reasonably call for any of the protective devices of the types listed in the statute. Subsequently, the Court of Appeals reaffirmed that liability under the statute does not result from "any and all perils that may be connected in some tangential way with the effects of gravity," but, rather, only from those that are limited to "such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured" and where the injury resulted from the absence of a safety device or a defect in the device that prevented it from serving its essential purpose (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [a makeshift scaffold may have caused the worker's injury by forcing him to adopt an unusual, contorted position but it served its essential purpose of preventing him from falling from a height]).

Despite Defendant's contentions to the contrary, the fact that, in the instant claim, Claimant did not fall completely through the pipe chase to the floor below does not, in and of itself, preclude liability under §240(1). Where circumstances would otherwise support liability if the worker fell all the way through an opening, the legal effect is no different if the worker was fortunate enough to fall only part-way through (see, O'Connor v Lincoln Metrocenter Partners, L.P., 266 AD2d 60; Becerra v City of New York, 261 AD2d 188; Robertti v Powers Chang, 227 AD2d 542, 543, appeal dismissed 88 NY2d 1064; Carnicelli v Miller Brewing Co., 191 AD2d 980). Although counsel for Defendant references a number of cases in which it was held that the statute did not apply, in none of those cases did the court's ruling depend on whether the fall was partial or complete. Therefore, Defendant's cross-motion to dismiss must be denied.

As an aside, at the trial of this matter, I would expect the parties to address an issue not raised before me in the instant motions, to wit, whether liability can be imposed under Labor Law §240(1) when a worker falls into an opening that is a permanent, normal part of the structure which is adjacent to the work area but not directly involved in the work being performed, as contrasted with a temporary opening that is created as part of the work process itself or a permanent opening on which work is being performed. Query whether in the Fourth Department the risk of injury posed by the "pipe chases" is one of the extraordinary, elevation-related risks that can give rise to liability under Labor Law §240(1)? Indeed it would appear that while liability may be imposed if, in a question of fact, it is determined that a worker's activity near an opening created in the course of construction is such an elevation-related risk (Carnicelli v Miller Brewing Co., supra, 191 AD2d 980, 981), but where the hole or opening is a normal, permanent part of the structure and the employee's work assignment does not require him to be directly over or in the opening, the result may be different (see, e.g., Panepinto v L.T.V. Steel Co., 207 AD2d 1006, [no liability when the worker and the work he was performing were on the same level, but he stepped into a hole of unknown origin]; Mazzu v Benderson Dev. Co., 224 AD2d 1009, 1010, [when a worker fell into a swimming pool as he walked past it carrying supplies needed in connection with his work on a separate building, the court found no basis for concluding that he was performing a task at an elevated work site or that he was exposed to the type of hazard that could be prevented by use of the safety devices listed in Labor Law §240{1}]; Johnson v City of Corning, 269 AD2d 865, [no liability under §240{1} where a worker fell into an opening from ground level while walking across the work site]; Tillman v Triou's Custom Homes, 253 AD2d 254, 257 [falling from a flatbed truck while unloading cement blocks was not a "significant risk inherent in the particular task that the worker is performing because of the relative elevation"]).

The Third Department has made similar, perhaps more explicit rulings in Riccio v Shaker Pine (262 AD2d 746, 747, appeal dismissed, 93 NY2d 1042 [falling through an opening to a permanent stairway does not give rise to liability under Labor Law §240{1}]), and in D'Egidio v Frontier Ins. Co. (270 AD2d 763, lv denied, 95 NY2d 765, [stepping into a hole while working on the permanent floor surface does not involve the type of elevation-related risk contemplated by the statute]), a case cited with approval, albeit on other grounds, by the Fourth Department in Luckern v Lyonsdale Energy Ltd. Partnership (722 NYS2d 632, 2001 NY App Div LEXIS 2761)(see also, Storno v Restoration Roofing Co., 268 AD2d 786).

It is not so evident that the First Department adopts this view, however, because in Carpio v Tishman Constr. Corp. of N.Y. (240 AD2d 234), that court held that there could be liability under §240(1) where a worker, who was painting a ceiling, stepped into a hole in the floor that was intended to permit the extension of piping to the floor below. If that hole was a temporary, construction-related hazard, the ruling is consistent with those cited above, but the court did not make this distinction. It stated merely that "the risk of injury existed because of the ‘difference between the elevation level of the required work' (the third floor), and ‘a lower level' (the bottom of the piping shaft), and common sense alone tells us that this accident was gravity-related" (but see, dissenting opn of Tom, J, 240 AD2d at 236-243),(see also, Paolangeli v Cornell University, 187 Misc 2d 559). The Fourth Department has not commented upon these decisions.

Because defendant has presented no probative evidence relating to the State's supervision or control of the work site or the manner in which claimant performed his work, that branch of the cross-motion seeking dismissal of the cause of action based on Labor Law §200 is denied. Accordingly, on the issues presented before me, the motion and cross-motion are both denied.

July 9, 2001
Rochester, New York

Judge of the Court of Claims

[1] A landowner's duty under section 240(1) of the Labor Law, which is often called the "scaffold law," is nondelegable and an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 499-500). In contrast, Labor Law § 200 (1) codifies landowners' and general contractors' common-law duty to maintain a safe workplace, and an owner or contractor cannot be held liable unless there is actual supervision or control of the work (id, at 506).