"Cross Notice of Motion", Affidavit of Robert Tennant 4,5
Memorandum of Law 6
Affirmation in Opposition to Cross-Motion 7
On the basis of deposition testimony from claimant, his coworkers, his
employer, and other non-party witnesses (see transcripts of deposition testimony
attached to Defendant's moving papers as Exhibits C-G), the parties have
separately stated that there are no material issues of fact, and each party
therefore seeks a determination of summary judgment as to liability in their
At the time of this incident, claimant was an employee of Murphy Contracting.
In 2002, Murphy Contracting had entered into a contract with the State to
perform roofing work on property owned by the State at 2-4 Academy Street in the
Town of McGraw. This work involved the installation of a metal roof on a house
located at these premises.
On November 4, 2002, claimant was working at the job site with two coworkers,
Mark Cox and Chad Tennant (claimant's brother). The lower part of the roof was
approximately five or six feet above the ground, and claimant was approximately
four feet up on the roof at the time of the incident. Claimant was installing
metal panels to the roof, and Mark Cox was working above claimant near the peak
of the roof. It was raining at the time, and claimant admitted that he was
At some point, Mark Cox lost his footing and began to slide down the roof.
Claimant reached out to stop him from falling, and lost his own footing. Both
claimant and Mark Cox fell off the roof. When claimant fell, he first struck a
railing and then a heating or air conditioner unit adjacent to the house,
suffering his injuries.
Claimant acknowledges that neither he nor any of his coworkers were wearing
safety equipment of any nature (such as harnesses or belts) at the time that he
and Mr. Cox fell from the roof.
In his deposition testimony (see Exhibit G), Kevin M. Murphy, the owner of
Murphy Contracting, testified that safety equipment, in the nature of harnesses
and ropes, was available for use by the workers on this project. He also stated
that such safety equipment was required to be used by all employees who worked
on roofs or other elevated sites "when it's necessary", and not that his policy
required use on "anything over six feet" (p. 22). He further stated that
employees had received instructions as to this requirement.
Claimant not only admits that he was not using any safety devices at the time
of his fall, but also that he made a conscious decision not to use them, since
he did not believe that the roof was either steep or high enough to justify
their use. Claimant was also considered to be the foreman, or the person in
charge, of this three-man work crew, due to his prior work experience. Claimant
acknowledges that use of the safety equipment (harness and rope) in all
likelihood would have prevented his fall.
The parties separately acknowledge, in their respective submissions, that the
sole issue to be determined herein is the applicability of the recalcitrant
worker defense to the undisputed facts and circumstances of this
Labor Law § 240(1) imposes a nondelegable duty upon an owner and general
contractor to provide adequate safety devices to protect workers from the danger
of falling from an elevated work site. The purpose of the law is to protect
workers and place ultimate responsibility for work site safety on the owner and
general contractor instead of the worker (see Ross v Curtis-Palmer
Hydro-Elec.Co. 81 NY2d 494, 500; Rocovich v Consolidated Edison Co.,
78 NY2d 509, 513). The statute is to be construed liberally in order to
accomplish its purpose of protecting the worker (Gordon v Eastern Railway
Supply, Inc., 82 NY2d 555, 559).
Under this statute, owners and contractors are liable whether or not they
supervise or control the work, and a claimant's comparative negligence is not a
defense in any action based upon a violation of the statute (see Blake v
Neighborhood Hous. Servs. of N.Y. City, Inc., 1 NY3d 280).
Liability under § 240(1) can be avoided, however, if an owner provides
adequate safety devices and a worker refuses to use them (Smith v Hooker
Chems. & Plastics Corp., 89 AD2d 361). In other words, if an owner or
contractor can prove that adequate safety devices were available, that the
injured worker knew they were available and that he or she was instructed to use
them, that the worker deliberately refused to use the equipment, and, had the
worker not made that decision, he or she would not have been injured, liability
may be avoided (see Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d
In this particular matter, claimant contends that he did not receive any
specific instructions to use the safety equipment, and further contends that
this safety equipment was not readily available at the work site.
In his deposition (see Exhibit G) Kevin M. Murphy, testified that his workers
were required to use safety equipment, when necessary, but he was "not positive
of the exact conversations" that he had had with claimant and his coworkers
(page 23). The Court of Appeals has clarified that with regard to specific
instructions to use safety equipment, a worker is "not the less recalcitrant
because there was a lapse of weeks between the instructions and his disobedience
of them." (Cahill v Triborough Bridge & Tunnel Auth., supra
at 39). Such instructions, however, must be specific, and general safety
instructions given in the past are not sufficient to invoke the defense
(Gordon v Eastern Railway Supply, Inc., supra).
Mr. Murphy also testified that safety equipment was available for his employees
at the time of this incident, and that such equipment would have been either
stored in his garage or in one of his vehicles, but he did not know exactly
where such safety equipment (harness and belts) was located (page 47).
Chad Tennant, a coworker who was on the ground when this accident occurred,
testified that the safety belts and harnesses were generally with them in the
van, but that he did not recall if they were in the van on the day of the
accident (see Exhibit E, page 39). Mark Cox, claimant's other coworker,
testified that the safety belts and harnesses were located in a garage at the
job site on the day of the accident (see Exhibit F, page 23).
"The presence of safety devices somewhere on the work site does not discharge
the owner's duty to provide proper protection to workers" (Szuba v Marc
Equity Props., Inc., 19 AD3d 1176). In this case, there is no credible
evidence to establish exactly where the safety equipment was located on the day
of the accident. The equipment was either in the garage at Murphy Contracting,
in one of the vehicles owned by Murphy Contracting, in the van which was used by
claimant and his coworkers on the day of the accident, or in a garage situated
on the work site property. At best, this Court can only conclude that safety
devices were generally available to the workers, but that they were not
available for immediate use by claimant and his coworkers in the immediate area
of the work site. The presence of appropriate safety equipment "somewhere on
the work site is insufficient to satisfy the [recalcitrant worker] doctrine"
(Kaffke v New York State Electric & Gas Corp., 257 AD2d 840, at 841;
see also Szuba v Marc Equity Props., Inc., supra; Howe v
Syracuse Univ., 306 AD2d 891).
Based on the foregoing, the Court does not find sufficient evidence to
establish that claimant refused to follow a specific safety instruction from his
contractor to use available and appropriate safety equipment, or that such
safety equipment was available for immediate use by him in the immediate area of
the work site.
Therefore, the Court finds that defendant has failed to establish that claimant
was a recalcitrant worker, and that defense cannot be applied in this instance
to avoid liability under Labor Law § 240(1). Since comparative negligence
is not a defense under § 240(1), summary judgment on the issue of liability
must be granted to claimant on his § 240(1) cause of action. Based on this
determination, it is not necessary to consider the cause of action asserted
under Labor Law § 241(6).
Accordingly, it is
ORDERED, that Motion No. M-70824 is hereby DENIED; and it is further
ORDERED, that Cross-Motion No. CM-70857 is hereby GRANTED; and it is
ORDERED, that the Chief 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