New York State Court of Claims

New York State Court of Claims

SOVEY v. THE STATE OF NEW YORK, #2008-015-062, Claim No. 114057, Motion No. M-74938


Synopsis


Claimant's motion for partial summary judgment on liability pursuant to Labor Law § 240 (1) was granted. Unsecured planks which fell from a manlift a distance of between eight and ten feet constituted prima facie evidence of Labor Law § 240 (1) violation.

Case Information

UID:
2008-015-062
Claimant(s):
JOHN SOVEY
Claimant short name:
SOVEY
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114057
Motion number(s):
M-74938
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Poissant, Nichols, Grue & Vanier, P.C.By: Thomas A. Grue, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michael C. Rizzo, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 12, 2008
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant moves for partial summary judgment on the issue of liability pursuant to CPLR 3212 on his causes of action alleging violations of Labor Law §§ 240 (1) and 241 (6). The defendant retained Midstate Industries (Midstate) to remove and replace the roof shingles on its Camp Gabriels prison facility in Franklin County, New York. Claimant was employed by Midstate as a roofer. The claim alleges that on November 16, 2006 during the course of his employment with Midstate the claimant suffered personal injuries when he "was struck by planks that fell from a manlift from a height of approximately eight to ten feet" (claimant's Exhibit A, ¶ 8).[1]

Claimant testified at an examination before trial that there was one manlift on the site which was used to transport both men and materials to and from the roof of the buildings (claimant's Exhibit C, p. 17, 19). The manlift was described by the claimant as a blue Grade-All with a boom which extended to the roof and forks which held a wire mesh cage containing a plywood floor (claimant's Exhibit C, p. 18-19). The bottom of the cage measured approximately three feet by six feet and had plywood sides which were approximately two feet high with wire mesh above (claimant's Exhibit C, pp. 18, 27-28).

Three workers were in the manlift transferring materials from the manlift's cage into a storage trailer on the site when the accident occurred (Exhibit C, p. 23). The bottom of the cage was positioned at approximately chest level and three staging planks had been placed on top of the cage (claimant's Exhibit C, p. 24-25, 27). The staging planks rested on two of three metal bars which formed the “roof” of the cage and were between 18 and 22 feet long, twelve inches wide, and 3 ½ inches thick (claimant's Exhibit C, p. 25 - 26). It is undisputed that the staging planks were placed on top of the cage lengthwise and were unsecured at the time the accident occurred (claimant's Exhibit C, 27, 30).

Claimant, who was operating the manlift on the accident date, was standing outside and next to the cage as the lift was unloaded. As the three men in the manlift transferred the tools and materials from the lift into the storage trailer, the claimant observed the planks begin to fall toward a coworker, Travis Minnie, who was standing only three feet from the cage (claimant's Exhibit C, p. 29). Claimant, who at that time was approximately three feet from Mr. Minnie, testified that he instinctively tried to "get him out of the way and deflect the planks" (claimant's Exhibit C, p. 31). A plank struck the claimant on the shoulder knocking him to the ground (claimant's Exhibit C, p. 33) after which he felt "two of the planks collapse [his] hand right into the ground" (Exhibit C, p. 33). Claimant estimated that the planks were between eight and ten feet above ground level at the time they fell from the top of the cage (Exhibit C, p. 32).

Charles Wright testified at an examination before trial on behalf of the defendant. He is employed by the State of New York and held the position of Engineer In Charge of the project at Camp Gabriels on the date the accident occurred. Mr. Wright testified that as the Engineer In Charge he would inspect the progress of the work on this job as well as others which were ongoing at the time (Exhibit D, p. 6, 9). He testified that although he was not on the jobsite when the accident occurred, he was informed of the incident by Thomas Glover, the foreman for Midstate, and reported it to the Office of General Services in Albany (claimant's Exhibit D, p. 18, 19). He described the project at Camp Gabriels as involving the removal and replacement of roof shingles on several buildings (claimant's Exhibit D, p. 12). Mr. Wright testified that there were two manlifts on the site (claimant's Exhibit D, pp. 30-31). According to Mr. Wright, both lifts were composed of a platform (floor) and a steel cage approximately 4 ½ feet high with no open sides, although one of the sides is detachable (claimant's Exhibit D, p. 31-32). He testified that he was unaware materials were being transported on top of the manlift and he would consider such a procedure to be dangerous (claimant's Exhibit D, p. 32). In this regard Mr. Wright testified (claimant's Exhibit D, pp. 32-33):
"A. I feel that – my own personal opinion, I feel that it would be unsafe; that it might fall off because the bucket can tilt in any certain way. So if somebody wasn't paying attention, something could fall off."
Claimant also submitted the affidavits of Thomas Glover, the foreman of Midstate, and Michael McMahon, an expert, in support of the motion for summary judgment. As pertinent here, Mr. Glover states the following with regard to the manner in which the accident occurred:
"Mr. Sovey was injured when three planks fell from the top of the wire cage of a man lift [sic] to ground level in the direction of another employee. Mr. Sovey reached out to push the employee out of the way of the falling planks and he was knocked down to the ground where a plank struck his hand causing injury to his middle finger."
The affidavit of Mr. McMahon indicates that he has thirty years of contracting and construction experience and has been employed by Boyea Construction Company for approximately twenty years. He states in his affidavit that a manlift "is not designed to be used and should not be used to move material" (McMahon Affidavit, ¶ 5). He explains that the rails on top of the manlift are not designed with a wide material handling surface like a forklift, which does not permit as much movement. As a result, materials can easily slide on the manlift rails, according to Mr. McMahon. He also renders the opinion that a manlift is more susceptible to motion than a material lift because, unlike a material lift, it does not have heavy metal rail guides. "Therefore, if a man lift [sic] has to be used to move boards or other materials, those items should be firmly attached to the rails of the man lift [sic] by either tying those items with a rope, strap or ratchet tie down" (McMahon affidavit, ¶ 11). Mr. McMahon renders the opinion that because of the potential dangers associated with such activities, the applicable regulations provide that all personnel should be cleared from the area below the lifting device. Mr. McMahon opined further that "[i]n this case, it is evident that the material was not properly secured and the area was not cleared of personnel" (McMahon Affidavit, ¶ 13). Labor Law § 240(1) imposes a nondelegable duty on owners and contractors to "furnish or erect, or cause to be furnished or erected...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 proper protection to [construction workers employed on the premises]" (Labor Law § 240 [1]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]). In order to establish a violation of Labor Law § 240 (1) the claimant must "show that the statute was violated and that the violation proximately caused his injury" (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39 [2004]; see also Cody v State of New York, 52 AD3d 930 [2008]; Pearl v Sam Greco Constr., Inc., 31 AD3d 996, 997 [2006]). In Narducci v Manhasset Bay Assoc. (96 NY2d 259, 268 [2001]) the Court of Appeals made clear that not every object that falls on a worker at a construction site gives rise to the extraordinary protections of Labor Law § 240 (1). "Rather, liability is contingent upon the existence of a hazard contemplated in § 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" (Id. at 267; citing Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 501 [1993]).

Where the falling object is related to "a significant risk inherent in . . . the relative elevation . . . at which materials or loads must be positioned or secured" Labor Law § 240 (1) applies (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]). The Narducci Court made clear that "for section 240 (1) to apply, a plaintiff must show more than simply that an object fell causing injury to a worker. A plaintiff must show that the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute" (Narducci v Manhasset Bay Assoc. (96 NY2d at 268 [citations omitted]).

Here, it is undisputed that the planks were unsecured at the time they fell from the bar surrounding the top of the manlift cage. Both the claimant and Mr. Wright, the defendant's Engineer In Charge of the jobsite, testified that with men moving about in the manlift, as was the case here, the manlift was prone to movement. For this reason, Mr. Wright opined that the placement of unsecured planks on the bar of the cage would be "unsafe" (claimant's Exhibit D, p. 32). These facts alone sufficiently establish that the failure to provide devices of the sort enumerated in Labor Law § 240 (1) was the proximate cause of the claimant's injuries thereby entitling him to judgment as a matter of law.

Defendant's contention that a question of fact exists as to whether or not the manlift was the appropriate device for hoisting not only men but materials misses the point. Where, as here, it is undisputed that the planks were unsecured on top of the bars above the manlift cage, a violation of Labor Law § 240 (1) is established as a matter of law (Metus v Ladies Mile Inc., 51 AD3d 537 [2008] [question of fact regarding whether or not beam on scaffold should have been secured was immaterial where it was undisputed that the beam was not properly clamped to scaffold when it fell]; Hamilton v Kushnir Realty Co., 51 AD3d 864 [2008] [the failure to provide any safety devices established as a matter of law an owner's or contractor's liability]; Cody v State of New York, 52 AD3d 930 [2008] [claimant was not required to prove what additional safety devices would have prevented his injury]).

The defendant also argues that the planks fell from an insufficient height to warrant the application of Labor Law § 240 (1). It is well settled that where the injury-producing object does not fall from an elevated worksite, the extraordinary protections afforded by Law Law § 240 (1) are not implicated (Toefer v Long Is. R.R., 4 NY3d 399 [2005]; Melo v Consolidated Edison Co. of N.Y., 92 NY2d 909 [1998]; Misseritti v Mark IV Constr. Co., 86 NY2d 487 [1995]; Rodriguez v Margaret Tietz Ctr. for Nursing Care, 84 NY2d 841 [1994]). As stated by the Court of Appeals in Misseritti v Mark IV Constr. Co., 86 NY2d at 490-491:
"Section 240, known as the 'Scaffold Law,' has historically been construed in the context of workers injured as a result of inadequate or missing safety equipment at elevated work sites [citations omitted]. It is in recognition of the exceptionally dangerous conditions posed by elevation differentials at work sites that section 240 (1) prescribes safety precautions for workers laboring under unique gravity-related hazards (see, Ross v Curtis-Palmer Hydro- Elec. Co., 81 NY2d, at 501, supra). Indeed, the type of protective devices enumerated by section 240 (1) predominantly concern those used on elevated work sites 'either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured' (Rocovich v Consolidated Edison Co., 78 NY2d, at 514, supra; see also, Labor Law § 240 [1]."
Here, the types of protective devices enumerated in the statute were required precisely because of the difference between the elevation level where the claimant was positioned and the higher level of the materials or load being hoisted or secured. The fact that the planks fell only a total of between eight and ten feet is not so minimal as to render Labor Law § 240 (1) inapplicable. There is no definitive height differential at which the scaffold law begins to apply (Thompson v St. Charles Condominiums, 303 AD2d 152 [2003], lv dismissed 100 NY2d 556 [2003]) and review of Appellate authority reveals that the height differential involved here was sufficient to require the protections afforded by the statute. For example, in Outar v City of New York, 5 NY3d 731 [2005], affg 286 AD2d 671 [2001] the plaintiff was in the course of his employment lifting pieces of subway track and replacing them when an unsecured dolly, which was used for the work and stored on top of a 5 ½ foot wall fell and hit him. The Court of Appeals held that "[t]he elevation differential between the dolly and plaintiff was sufficient to trigger Labor Law § 240 (1)'s protection, and the dolly was an object that required securing for the purposes of the undertaking" (Id. at 732; see also Heidelmark v State of New York, 1 AD3d 748 [2003] [ten-foot fall of PVC pipe established prima facie violation of Labor Law § 240 (1)]; Ortlieb v Town of Malone, 307 AD2d 679 [2003] [unsecured pipe fell six feet into trench and where the plaintiff was struck exposing him to elevation-related hazard]; Malloy v Madison Forty-Five Co., 13 AD3d 55 [2004] [allegations that the failure to provide adequate hoisting devices forced plaintiff to drop beams into a dumpster, rather than placing them there stated a valid Labor Law § 240 (1) claim]).

In this matter, the planks which fell on the claimant required securing for the purposes of the undertaking at the time they fell. Unlike these facts, in Narducci v Manhasset Bay Assoc., supra, the Court of Appeals made clear that the glass "that fell on plaintiff was not a material being hoisted or a load that required securing for the purposes of the undertaking at the time it fell, and thus Labor Law § 240 (1) does not apply . . . This was not a situation where a hoisting or securing device of the kind enumerated in the statute would have been necessary or even expected" (Id. at 268). Here, in contrast to the facts in Narducci, claimant could reasonably expect that the planks that fell from the manlift would be secured (cf, Buckley v Columbia Grammar & Preparatory, 44 AD3d 263 [2007], lv denied 10 NY3d 710 [2007]; Zirkel v Frontier Communications of Am., Inc., 29 AD3d 1188 [2006]; Atkinson v State of New York, 20 AD3d 739 [2005]; Bradley v San-Gra Corp., Santaro Cos., 301 AD2d 709 [2003]). More importantly, the proof establishes as a matter of law that securing of the planks was necessary as the cage of the manlift was insufficient to permit hoisting of the planks in a manner providing proper protection to workers as required by the statute. Accordingly, claimant's motion for partial summary judgment on the issue of liability on his cause of action alleging a violation of Labor Law § 240 (1) is granted.

Inasmuch as this determination leaves only damages to be tried, the Court need not consider the claimant's alternate theory of liability under Labor Law § 241 (6) (see Pearl v Sam Greco Constr., Inc., supra, 31 AD3d 996 [2006].

Based on the foregoing, claimant's motion for partial summary judgment on the issue of liability on his cause of action alleging a violation of Labor Law § 240 (1) is granted. The Court will notify the parties of the date of trial on the issue of damages.



August 12, 2008
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims

  1. Notice of motion dated May 7, 2008;
  2. Affirmation of Thomas A. Grue dated May 7, 2008 with exhibits;
  3. Affidavit of Michael McMahon sworn to May 6, 2008;
  4. Affidavit of Tommy Glover sworn to March 30, 2007;
  5. Affidavit of Michael C. Rizzo sworn to May 28, 2008.

[1]. Claimant was granted permission to file a late claim alleging causes of action asserting violations of Labor Law 240 (1) and 241 (6) pursuant to this Court's order filed August 1, 2007 (see Sovey v State of New York, UID # 2007-015-207, [Ct Cl, June 26, 2007] Collins, J.). Late claim relief was denied with respect to the proposed causes of action for negligence and violations of Labor Law § 200.