FOWX v. THE STATE OF NEW YORK, #2008-029-037, Claim No. 112603
State liable for worker’s injury resulting from wobbling ladder on State
LEGRAND FOWX, II
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
STEPHEN J. MIGNANO
FELDMAN, KLEIDMAN & COFFEY, LLPBy: Marsha Solomon Weiss, Esq.
ANDREW M. CUOMO, ATTORNEY
GENERALBy: Jyotsna Gorti, Assistant Attorney General
September 22, 2008
See also (multicaptioned
Claimant alleges he was injured in a fall from a ladder while working at a
facility owned and operated by the State Office of Mental Retardation and
Developmental Disabilities (OMRDD). At the commencement of trial, the parties
stipulated as follows: (1) claimant was an employee of a firm known as
Commercial Instruments and Alarm Systems (CIA); (2) claimant was working at the
OMRDD building pursuant to a contract between his employer and the State, and
(3) the ladder in question was in good working order and not defective.
Claimant, who was 28 years old on the July 29, 2004 accident
, was first employed by CIA in 2002
installing and maintaining commercial and residential alarm and sprinkler
systems. He was working at the State facility at 21 Belden Road in Carmel
pursuant to a contract to upgrade the fire and burglar alarm systems on the
premises, a two-day job that had started July 28, 2004.
Claimant drove a van owned by CIA carrying all the tools and equipment needed
for the job, including a ladder that claimant used on the 28th. That day he
worked throughout the house installing smoke detectors, using the CIA ladder.
On July 29 most of his work involved ground level electrical panels. Toward the
end of the day he needed to access a smoke detector at the top of the stairs
leading to the basement. Rather than get his ladder from the van, he used an
aluminum folding ladder he found in a hallway closet. He opened the ladder, set
the braces and placed it on the floor, which was composed of “natural blue
stone” tiles (see Exhibit C).
described the floor tiles as not at a “consistent level.” He
ascended to the ladder’s second rung, about 20 inches off the ground and
was on it less than a minute when “the ladder lost its footing and went
off to the side . . . I braced myself on the wall and dislocated my left
shoulder.” He stated he smacked the wall with his hand and then fell to
No witnesses were present when these events occurred. Claimant called for the
other installer to assist him and they packed up their equipment and left since
the job was essentially completed.
The next day, he reported the incident to Armand Braun who was in charge of
scheduling for CIA. According to a Workers’ Compensation accident report
completed on August 3, 2004, the accident occurred at 2 p.m.
John Lombardi, President of CIA, testified that he was informed of
claimant’s accident the following morning. He stated claimant told him
that he was stepping off the ladder, with one foot on the ground, when the
ladder moved and claimant reached against the wall to brace himself. Mr.
Lombardi inferred from some gestures claimant allegedly made, that the ladder
was unopened at the time and was leaning against the wall. However, he
acknowledged that claimant never said any such thing. It was also noted by
claimant’s counsel that the Workers’ Compensation accident report,
which was signed by a different employee of CIA five days after the accident,
made no mention of the ladder being unopened or leaning against the wall. The
accident description contained therein was “ladder leaned to side, I went
to brace myself on the wall [and] dislocated my shoulder” (Exhibit 7). It
states neither that claimant was alighting from the ladder with one foot on the
floor nor that the ladder was not properly opened at the time. The court finds
no basis for accepting Mr. Lombardi’s version of the events over that of
Claimant withdrew the portion of his claim based on Labor Law §200,
leaving only the claim based on §240(1). That statute provides:
“All 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 proper protection to a
person so employed.”
Defendant argues that there are a number of reasons why the facts of this case
cannot support liability under §240(1). However, none of defendant’s
arguments withstands analysis given the state of the law in this
Initially, the court rejects defendant’s contention that claimant is not
entitled to the protection of the statute because the work he was performing did
not constitute an alteration of the structure but rather should be considered
routine maintenance, depriving claimant of the protection of §240(1). The
work included the installation of three new pull stations on the
building’s walls, installation of additional wiring inside the walls and
replacement and upgrading of the fire and burglar alarms. This is demonstrably
not mere maintenance and repair (Joblon v Solow, 91 NY2d 457 ;
Becker v ADN Design Corp., 51 AD3d 834 [2d Dept 2008]; Fitzpatrick v
State of New York, 25 AD3d 755 [2d Dept 2006]; compare Holler v City of
New York, 38 AD3d 606 [2d Dept 2007]; Acosta v Banco Popular, 308
AD2d 48 [1st Dept 2003]). See Exhibits 5 and K.
Defendant’s contention that claimant’s use of the ladder found in
the premises’ closet, rather than his own ladder, shields defendant from
liability is similarly misplaced. The parties stipulated that the ladder used
by claimant was not defective in any way. Thus, his choice to use that ladder
was totally irrelevant to the causation of this accident and cannot serve as the
predicate for a finding that claimant’s actions were the sole proximate
cause of the incident as urged by defendant (compare Destefano v City of New
York, 39 AD3d 581 [2d Dept 2007] [possibility that worker leaned unopened
ladder against wall prevented summary judgment in worker’s favor];
Plass v Solotoff, 5 AD3d 365 [2d Dept 2004][worker’s unilateral
decision to utilize only one of three available planks of scaffold led to
conclusion that his actions were the sole proximate cause of the
Defendant argues that claimant was not injured as the result of an
elevation-related risk of the type intended to be covered by the statute because
he did not fall from the ladder but rather was injured when he braced himself
against the wall. However, “[t]he fact that the [claimant] did not
actually fall from the ladder is irrelevant as long as the ‘harm directly
flow[ed] from the application of the force of gravity to an object or
person’ ” (Lacey v Turner Constr. Co.
, 275 AD2d 734, 735 [2d
Dept 2000] 
, quoting Ross v Curtis-Palmer
, 81 NY2d 494, 501; see also Ortiz v Turner Constr.
, 28 AD3d 627 [2d Dept 2006]; Robertti v Powers Chang
, 227 AD2d
542 [2d Dept 1996]). According to claimant’s testimony, which the court
accepts, he was injured while successfully preventing himself from falling from
the ladder. Such a scenario is sufficient for liability to attach under the
strict liability imposed by the statute.
It is settled that the duty imposed on a property owner by Labor Law
§240(1) is non-delegable and unaffected by whether the owner exercises any
degree of supervision over the work. The purpose of the statute “is to
protect workers and to impose the responsibility for safety practices on those
best situated to bear that responsibility” (Ross v Curtis-Palmer
, 81 NY2d 494, supra
at 500 ), not necessarily
to assess liability based on fault. Thus, a factual finding that an injury
occurred when an unsecured ladder tipped, slid or became unsteady requires a
finding in favor of the claimant in the absence of proof that the
claimant’s own culpable conduct was the sole proximate cause of the event.
The court has already noted that qualifying culpable conduct is not present in
the case at bar (Ricciardi v Bernard Janowitz Constr. Corp.
, 49 AD3d 624
[2d Dept 2008]; Argueta v Pomona Panorama Estates, Ltd.
, 39 AD3d 785 [2d
Dept 2007]; Rivera v Dafna Constr. Co., Ltd.
, 27 AD3d 545 [2d Dept 2006];
Chlap v 43rd St.–Second Ave. Corp.
, 18 AD3d 598 [2d Dept 2005];
Guzman v Gumley-Haft, Inc.
, 274 AD2d 555 [2d Dept 2000]). Here, the only
plausible explanation for the incident in which claimant was injured was that
the ladder shifted as the result of the uneven nature of the floor, composed of
stone tiles separated by grout lines. The shifting of the ladder caused
claimant to reflexively reach and brace himself against the wall, apparently
causing injury to his shoulder. 
it may seem, such factual findings mandate the conclusion that defendant is
liable pursuant to §240(1) and this court must defer to the judgment of the
Legislature on this issue.
Accordingly, the Clerk of the Court is directed to enter an interlocutory
judgment in favor of claimant, after which a damages trial will be
September 22, 2008
Plains, New York
HON. STEPHEN J. MIGNANO
Judge of the Court of
.At trial, the court granted claimant’s
motion, without opposition from defendant, to conform the pleadings to the
proof; i.e., to amend the erroneous reference in the claim to July 24, 2004 to
the actual accident date, July 29, 2004.
.Unless otherwise indicated, all quotations
are from the audio recordings of the trial proceedings.
.The plaintiff in Lacey
when “the ladder moved and lost contact with the wall, and . . . in
saving himself from falling from the ground, the plaintiff injured his
back” (275 AD2d 734, 735).
.Only the issue of liability was tried at this