This Claim arose on December 20, 1999, at approximately 7:15 a.m., at a State
project for the construction of a building located at the State University
College of Technology in Delhi, New York (hereinafter sometimes "Project"). At
the time of this incident, Claimant,
Zorda, was a laborer employed by Sarkisian Brothers, Inc. (hereinafter
"Sarkisian"), the general contractor on said Project. Claimant and a co-worker,
Bruce McIntyre, reported to work at 7:00 a.m., and were instructed by their
supervisor, Peter Fitzgerald, "[t]o go up on the roof and clean blocking and
other materials from the roof that had been left there by other workers."
(Affidavit of Anita M. Zorda, ¶ 3). Claimant had started her work on the
roof when she slipped on ice or frost on a rubber membrane covering a portion of
the roof, fell on her stomach and slid off the roof to the ground approximately
10 feet below landing on a concrete slab. The portion of the roof from which
Claimant fell was a sloped roof estimated as a "four on
(Fitzgerald Deposition, p 16). It
is undisputed that Claimant was not wearing any safety device at the time of her
fall. The factual allegations relative to the presence of safety devices on the
job site will be discussed at length hereinbelow. Claimant suffered various
injuries including compound comminuted fractures of her right leg. A Notice of
Intention was served on March 13, 2000. The Claim was personally served on the
Attorney General's office on February 1, 2001 and filed with the Clerk of the
Court on February 13, 2001.
This Claim alleges violations of Labor Law 200, 240 (1) and 241 (6). By way of
this motion, Claimant seeks partial summary judgment on the Labor Law 240 (1)
cause of action. In support of the motion, Claimant submits, inter alia
her own affidavits; her deposition transcript; as well as the deposition
transcripts from Peter Fitzgerald, Sarkisian's Project superintendent, and
Russell Doolittle, the site representative from the Project's
In opposition, the State relies
on these same submissions.
Based upon this record, the following facts are undisputed: Claimant was an
experienced laborer in the construction field having worked on and off in the
field since approximately 1985. Claimant recalled weekly safety meetings, also
known as tool box meetings, held during her first period of work on this
Project, but could not specifically recall any safety meetings during her second
phase of work on this Project, although she indicated that they could have been
Claimant also recalled that during her
first phase of work at the Project she had a safety harness customized to fit
her due to her small size, that she put her name on it, and stored it in a gang
Claimant stated that her customized
safety harness was not located in the gang box when she returned for her second
phase of work. However, Claimant did recall seeing at least one harness during
this second time period. Claimant also indicated that she knew she was likely
supposed to be wearing a safety harness while working on a roof.
Mr. Fitzgerald, Sarkisian's Project superintendent, conceded that, on the
morning of this accident, he did not give any safety device to Claimant; did not
direct Claimant nor suggest to her that she should use any type of safety device
on the roof; and that there were no safety devices available up on the roof.
Mr. Fitzgerald did state, however, that "[t]here were safety harnesses with
lanyards with a safety rope, three quarter, one inch safety rope, either in the
gang box which was on the first floor of the building, and...in the construction
trailer." (Fitzgerald Deposition, p 23). Mr. Fitzgerald explained that safety
devices are typically locked up each night in order to avoid theft. Russell
Doolittle, the site representative for Dembling and Dembling Architects, also
indicated in his deposition that fall protection devices were hanging on the
inside of a shanty wall in a small storage shed about 300 feet from the
building, in addition to the contractor's gang box. However, Mr. Doolittle
concurred that there was no fall protection in place up on the roof at the time
of Claimant's fall. Also, Mr. Fitzgerald and Mr. Doolittle both stated that
weekly safety toolbox meetings were held.
It is well-settled that Labor Law 240 (1) was enacted "[i]n recognition of the
exceptionally dangerous conditions posed by elevation differentials at work
sites...for workers laboring under unique gravity-related hazards [citation
omitted]." (Misseritti v. Mark IV Constr. Co.
, 86 NY2d 487, 491, rearg
87 NY2d 969). On a motion for summary judgment seeking a
determination of liability on the part of an owner, a claimant need only show
that Labor Law 240 (1) was violated and that the violation was a proximate cause
of the resulting injuries.
Eastern Ry. Supply,
82 NY2d 555). A violation of the statute may be
demonstrated by the failure of the owner to provide a necessary safety device
required to give the worker proper protection. (Bland v Manocherian
NY2d 452). Once the moving party has established its burden, "[t]he burden
shifts to the party opposing the motion for summary judgment to produce
evidentiary proof in admissible form sufficient to establish the existence of
material issues of fact which require a trial of the action [citation omitted]."
(Alvarez v Prospect Hosp.
, 68 NY2d 320, 324). Of course, the Court must
accept the non-moving party's evidence as true and grant him every favorable
inference. (Hartford Ins. Co. v General Acc. Group Ins. Co.
, 177 AD2d
1046, 1047). Moreover, the injured worker's negligence, if any, does not
relieve an owner from liability who has failed to provide an adequate safety
device in the first instance. (Stolt v General Foods Corp
., 81 NY2d
In viewing this record in the light most favorable to the non-moving party,
this Court accepts the deposition testimony of Mr. Fitzgerald and Mr. Doolittle
that safety harnesses were located in several spots throughout the site and that
safety meetings were held on a weekly basis. That having been said, however,
the proof is uncontroverted that no safety devices were up on the roof on the
morning of Claimant's accident, although said devices were available elsewhere
on the job site.
There is no doubt that Claimant's fall from this roof and the type of work she
was undertaking are covered by Labor Law 240 (1). (Johnson v Packaging Corp.
of Am., 274 AD2d 627, 628; Striegel v Hillcrest Hgts. Dev. Corp., 175
Misc 2d 698, affd 266 AD2d 809). In fact, the State's sole argument in
defense is that there are questions of fact on whether Claimant's conduct was
the sole proximate cause of the accident which would negate any liability under
Labor Law 240 (1). More specifically, the State argues that "[s]ummary judgment
on § 240 should be denied to [claimant] even if [claimant] is found not to
be a recalcitrant worker, if there is a question whether [claimant] was the sole
proximate case [sic] of the accident [citation omitted]." (State's Memorandum
of Law, p 2). In support of this contention, the State points to Claimant's
general construction experience; specific knowledge of safety devices elsewhere
on the job site, as well as the previously stored custom fitted safety harness
in the tool box; and her knowledge that safety harnesses were required when
working on an elevated surface such as a roof. The State also raises the
argument that Claimant needlessly stepped onto the portion of the roof with the
rubber membrane and that if she had kept to the metal portion that a steel
device would have broken her fall. (Mertell Affidavit, ¶ 7).
It is well-settled "[t]hat the 'sole proximate cause' defense should be limited
to the situation where a worker has been provided with 'proper protection,' and
the worker thereafter, through intentional misuse of the safety device, or via
other egregious misconduct, neutralizes the protections afforded by the safety
device." (McMahon v 42nd St. Dev. Project, 188 Misc 2d 25, 30). Here,
there is no dispute that there were no safety devices provided on this roof,
even though they were elsewhere on the job site. The State's argument,
supported only by counsel's affirmation, that a steel device would have
prevented Claimant's fall had she stayed on the metal portion of the roof is
without any evidentiary value. (Hood v Murray, 25 AD2d 163, lv
dismissed 17 NY2d 911). So, even if the Court were to accept the State's
alleged litany of mistakes made by Claimant, such does not remove the fact that
once a defendant fails to provide a safety device, as here, then any act on the
injured worker's part can be nothing more than a contributing factor or
comparative negligence. (Evans v Anheuser-Busch, Inc., 277 AD2d
874; Ortiz v SFDS Dev., 274 AD2d 341). Stated another way, only under
the limited circumstances where the injured worker's actions are the "sole
cause" of the accident, can the claimant's acts and/or omissions be converted
from comparative negligence to the sole cause of the accident. As such then,
once it is shown that the statute has been violated, which is the case here
because no safety device was provided, then under no scenario can it be said
that Claimant's conduct was the sole proximate cause of this accident.
(Podbielski v KMO-361 Realty Assoc., 2002 NY Slip Op. 04450;
DiVincenzo v Tripart Dev., 272 AD2d 904, 905). Finally, the Third
Department has stated that "[t]he fact that safety harnesses and belts and
lanyards were stored in a tool box on the back of the crane does not provide a
defense [citations omitted]." (Lantry v Parkway Plaza, 284 AD2d 697,
698). In this Court's view, the State has failed to demonstrate that questions
of fact exist regarding whether Claimant's own conduct was the sole proximate
cause of this accident.
Consequently, for the reasons stated above, it is ORDERED that Claimants'
motion for partial summary judgment on the Labor Law 240 (1) cause of action,
Motion No. M-65105, is GRANTED.
The Clerk is directed to enter summary judgment on the issue of liability in
favor of the Claimants. The parties will be contacted to schedule a conference
prior to the trial on the issue of damages.