The purpose of Labor Law § 240 is ". . . to force owners and contractors to provide a safe workplace" and that was not done here. Defendant has failed to raise a question of fact or to establish as a matter of law that Claimant was provided with proper safety devices with the expectation that they be used under these circumstances. Claimant's motion is GRANTED and Defendant's motion is DENIED.
|Claimant(s):||TERRY LAIRD and KIMBERLY LAIRD|
|Claimant short name:||LAIRD|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DIANE L. FITZPATRICK|
|Claimant's attorney:||MICHAELS & SMOLAK, P.C.
By: Michael G. Bersani, Esquire
|Defendant's attorney:||ANDREW M. CUOMO
Attorney General of the State of New York
By: Patricia M. Bordonaro, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 28, 2010|
|See also (multicaptioned case)|
Claimant(1) brings a motion for partial summary judgment based upon Labor Law § 240.
Defendant opposes the motion and cross-moves for summary judgment on the ground that Labor Law §§ 240 and 241 are not applicable to this case.
The claim asserts that on June 26, 2006 around 10:00 a.m., Claimant, a roofing foreman for Diamond Roofing Company, employed on a roofing contract with the State of New York at State University of New York at Cortland (SUNY Cortland) was working at Moffett Center. The building has roofs at two levels with the higher roof separating two areas of the building with lower roofs. Claimant and another worker, Edward Martino, who was employed by a different company, needed to access a lower roof area for "field measuring."(2) Claimant had sought to access this roof through a window in the higher part of the building but was denied. Claimant and Mr. Martino then used an extension ladder which was lowered from the higher roof area to the lower roof. It was raining at the time, and as Claimant began to descend the ladder, the base of it slipped and Claimant fell to the lower roof level below him. He sustained injuries. By the claim, Claimant seeks to hold the State liable for violations of New York Labor Law §§ 240 and 241 and New York Industrial Code § 23-1.21 (4) (i), (ii), (iv) and (v). Defendant filed a verified answer on March 28, 2007. Claimant has also submitted with this motion the deposition testimony of Claimant and Mr. Martino.(3)
Defendant, in support of its cross-motion, also relies on Claimant's and Mr. Martino's deposition testimony, but also submits the deposition testimony of Paul VanValkenburg,(4) a police investigator with SUNY Cortland, who investigated Claimant's accident. Defendant has also attached uncertified copies of the incident report for Claimant's accident.(5)
The facts are not really in dispute based upon the submissions and specifically the depositions of Claimant and Edward Martino.
Claimant is an experienced roofer. He had worked many years at the time of the accident for his employer, Diamond Roofing, and continued to work for the company until July 2007. He started as a roofer, was promoted to a foreman, and thereafter, promoted to a superintendent. As a foreman, Claimant was the primary supervisor on a job. As a superintendent, Claimant directed the foremen on different jobs.
Claimant worked as a foreman on the SUNY Cortland project. The entire job involved removing asbestos, tearing off the old roof, and installing a new roof on five buildings. The Moffett Center consisted of two, one-story, relatively flat roof sections and in between there was an area with a higher roof.
On June 26, Claimant arrived around 5:30 or 6:30 in the morning. It was raining and Claimant sent his crew home because of the weather. Mr. Martino needed to measure the completed roof on the other side of the building from the roof that the crew was currently replacing. To access that portion of the roof, Claimant requested permission to use a window which was level with that roof. This request was denied. Mr. Martino and Claimant accessed the roof that was currently being replaced by using a ladder that was already set up and tied off at the top. Once on that roof, Claimant used a ladder that was being stored there to access the higher roof over which Claimant and Mr. Martino would gain access to the lower roof on the other side of the building. The ladder was an orange, 24 to 28 foot, fiberglass extension ladder with aluminum rungs and metal feet with serrated rubber on the bottom. Claimant and Mr. Martino placed the ladder against the wall of the higher story, and Mr. Martino held the ladder while Claimant ascended. Claimant then held the ladder for Mr. Martino to ascend. Once on the top of the higher roof, Claimant brought the ladder up to that level, carried it across the roof and lowered it to the lower roof on the other side. Claimant, with Mr. Martino's help, placed the ladder with its rubber feet resting flat on the concrete pavers on the lower roof. Concrete pavers extended out from the wall of the building approximately six feet. After making sure the rungs were locked and checking the feet of the ladder, Mr. Martino held the ladder while Claimant got on the ladder and started down to the lower roof. After only starting down, the bottom of the ladder moved out to the side and Mr. Martino lost control of the ladder as it fell to the right. Claimant fell off the ladder as it fell 10-to-12 feet. He landed on his left side and sustained a broken foot. Defendant did not challenge Claimant's version of how the accident occurred.
Claimant testified, without contradiction, that additional safety measures to secure the ladder included tying it off at the top of the building. Tying the ladder off at the top was a safety measure to secure the ladder to prevent it from falling during use. Using ropes or bungee cords, the ladder would be tied and the ropes would be nailed to the inside of the parapet wall. These ropes and safety lines would remain in place for the entire project. This was done when the ladder was being set up for a full day of work. If the ladder was only going to be used on a temporary basis at a location, an extra "man" would be used to hold the ladder. This extra person would hold the base of the ladder while the other person ascended. Once at the top, that person would then hold the ladder from the top for the other person to ascend. Claimant testified again without contradiction, that no one advised him that the ladders always needed to be tied off.
At the time of Claimant's accident he recalled that it was raining. Mr. Martino thought that it had stopped raining at that point but everything was still wet. There were marks in the gravel beyond the concrete pavers on the roof where the feet of the ladder had moved away from where it was placed.
Claimant testified that one of his duties as foreman on this job was to know where the safety equipment was located. Safety equipment was kept in a trailer onsite, however, most of it - like the safety lines - stayed on the roof during the project. If additional rope was needed to tie off a ladder, Claimant testified there may have been more in a trailer onsite. Claimant knew how to tie off the ladder.
It is Claimant's position that he is entitled to summary judgment because he was working on an elevated work site, and the ladder on which he was working was not placed and secured so as to give him proper protection as required by Labor Law § 240 (1). Defendant argues that it is entitled to summary judgment because Claimant has failed to show any violation of the statute. There was no defect in the ladder nor did the ladder malfunction. Rather, Claimant failed to secure the ladder at the top, although he knew that securing the ladder would prevent it from falling. Defendant argues that Claimant's injuries were caused solely by his actions, or that Claimant is a recalcitrant worker based upon his decision not to use the available ropes to secure the ladder.
Section 240(1) of the Labor Law provides in part:
1. 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.
Both parties rely upon the 2003 Court of Appeals decision in Blake v Neighborhood Housing Services of New York City, Inc., 1 NY3d 280, to support their respective positions. In Blake, the Court of Appeals reiterated that in order for liability under Labor Law § 240 (1) to be imposed, it must be shown that a statutory violation proximately caused the worker's injuries and if those elements are established, contributory negligence cannot defeat the claim. Claimant points to the Court's statements that there is presumption that when a ladder or scaffolding device collapses or malfunctions for no apparent reason, proper protection under the statute was not provided (Id. at 289 n. 8).
Once a prima facie case has been made out, the burden then shifts to Defendant to show that there is an issue of fact as to whether the statute was violated and whether the worker's own actions or omissions were the sole cause of the accident. Defendant may be granted summary judgment only if the record establishes that, as a matter of law, no statutory violation occurred and the worker's injuries were solely caused by his own conduct.
Defendant points to the facts of Blake to support its position. In that case, plaintiff, the owner of his own contracting business, was working alone on a renovation job. He used his own extension ladder which he used frequently. He noted that the ladder was steady, had rubber feet, was in proper working condition, was securely placed and not broken or defective. He also indicated that there was no need to have anyone hold the ladder. As plaintiff worked, the upper portion of the ladder retracted causing him to fall. At trial, plaintiff revealed that he wasn't sure whether he had locked the extension clips in place before using the ladder. The Court found the jury's findings that the plaintiff was the sole proximate cause of his accident were correctly left undisturbed. The plaintiff's actions alone caused his fall, since the ladder was undisputedly in proper working condition and no further devices were necessary.
In Montgomery v Federal Express, Corp., 4 NY3d 805 , the Court of Appeals found that liability under Labor Law § 240 (1) was not established when a worker was injured when he jumped from an elevator motor room to a roof despite a readily available ladder.
The Court made a similar finding in Robinson v East Med. Ctr. LP, 6 NY3d 550 . There, it found plaintiff was the sole proximate cause of his own injuries because he knew he needed an eight-foot ladder to perform the job, there were eight-foot ladders at the site and he knew where they were - yet he chose to use a smaller ladder.
The most recent case, Gallagher v New York Post, 14 NY3d 83 , involved an ironworker who was assigned to remove metal decking from a second floor building. The
ironworker was using a two-handled power saw when it jammed and propelled him forward causing him to fall through an uncovered opening. Despite the availability of safety devices, such as harnesses with shock-absorbing lanyards and retracting lanyards, there was no indication that they were available in the area where the ironworker was working. Also, despite an order that all ironworkers should use a harness and be tied off, there was no indication that the ironworkers had been so instructed. The foreman on the site provided an affidavit which indicated that the ironworker had not been provided with a safety harness or lifeline, and there were no "stanchions" or safety cables in the area of the accident. (Id., at 87). The Defendant in Gallagher relied on Robinson and Montgomery, but the Court of Appeals said:
Both cases stand for the same proposition. Liability under section 240(1) does not attach when the safety devices that plaintiff alleges were absent were readily available at the work site, albeit not in the immediate vicinity of the accident, and plaintiff knew he was expected to use them but for no good reason chose not to do so, causing an accident. (Gallagher, at 88).
The Court of Appeals found no evidence in the record that Gallagher knew that the safety
devices were available or that he was expected to use them.
Thus, it is well-established that where a claimant shows that a defendant failed to furnish an adequate safety device causing the accident, a prima facie case has been established and the burden shifts to the defendant to raise a question of fact as to whether a violation of the statute has been shown. Where claimant "for no good reason" fails to use readily available safety devices at the work site, despite the expectation or direction to use them, the sole proximate cause of the accident is claimant's actions. This must be distinguished from the case where a claimant's negligence contributes to the accident, since comparative fault is not a viable defense to a Labor Law § 240 (1) violation (see Calderon v Walgreen Co., 72 AD3d 1532; Smith v Picone Constr. Corp., 63 AD3d 1716; Evans v Syracuse Model Neighborhood Corp., 53 AD3d 1135; Vega v Rotner Mgt. Corp., 40 AD3d 473).
Here, Claimant had access to a ladder to allow him to reach the elevated work area. Yet, "[w]here a ladder is offered as a work-site safety device, it must be sufficient to provide proper protection. It is well settled that [the] failure to properly secure a ladder, to ensure that it remain steady and erect while being used, constitutes a violation of Labor Law § 240 (1)." (Hernandez v Bethel United Methodist Church of N.Y., 49 AD3d 251, 253; see also Evans, 53 AD3d at 1135; Woods v Design Ctr., LLC, 42 AD3d 876). Clearly, the ladder alone was not a sufficient safety device to access the area where Claimant needed to work, the ladder also needed to be secured. The failure to secure the ladder at the top with ropes caused Claimant's injuries. Accordingly, Claimant has made out a prima facie case.
The Defendant argues that Claimant was provided with safety ropes and bungee cords to secure the ladder but Claimant chose not to use them. Claimant indicated, without contradiction, that it was common practice that when the ladder was not going to be used for a long period of time, two workers would work together to ascend and descend the ladder while the other worker held it. It is undisputed that there was no expectation or direction from the owner or contractor requiring the ladder to always be secured with ropes at the top. Thus, Claimant did not purposefully fail to use the ropes and bungee cords to secure the ladder in derogation of his employer's direction and is thus not a recalcitrant worker. Rather there was no expectation or direction that the ladder must also be secured even for a temporary placement, thus, it was not Claimant's "normal and logical response" to secure the ladder with ropes (Blake, 1 NY3d 280, 286). Although it may have been more prudent for Claimant to have used the ropes and bungee cords anyway, even without his employer's direction, contributory negligence will not relieve a Defendant from liability for a violation of the statute (Id.) Moreover, arguments that the ladder did not malfunction and was structurally sound are not relevant to the issue of whether it was properly placed (Evans, 53 AD3d at 1135).
The purpose of Labor Law § 240 (1) is ". . . to force owners and contractors to provide a safe workplace" and that was not done here. Defendant has failed to raise a question of fact or to establish as a matter of law that Claimant was provided with proper safety devices with the expectation that they be used under these circumstances.
Accordingly, Claimant's motion is GRANTED and Defendant's cross-motion is DENIED in its entirety(6) . This claim will be scheduled for trial on damages in due course.
June 28, 2010
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court considered the following documents in deciding these motions:
1) Notice of Motion.
2) Affidavit of Michael G. Bersani, Esquire, in support, sworn to December 3, 2009, with exhibits attached thereto.
3) Memorandum of Law.
4) Reply Affirmation of Patricia M. Bordonaro, Esquire, Assistant Attorney General, in opposition.
5) Notice of Cross-Motion.
6) Affirmation of Patricia M. Bordonaro, Esquire, Assistant Attorney General, in support, dated January 27, 2010, with exhibits attached thereto.
7) Defendant's Memorandum of Law in Support of Summary Judgment.
8) Claimant's Reply Memorandum of Law filed February 16, 2010.
1. All references to Claimant will refer to Terry Laird unless otherwise indicated since Kimberly Laird's claim is solely derivative in nature.
2. Exhibit D, page 11, they field measure a completed roof for sheet metal.
3. Claimant's Exhibits C and D, respectively.
4. Defendant's Exhibit A.
5. Defendant's Exhibit B. The Court has not considered these exhibits for purposes of Defendant's cross-motion, as they are not in admissible form.
6. In that the Court found liability on Claimant's Labor Law § 240 (1) cause of action, the Court did not address Defendant's cross-motion to dismiss Claimant's Labor Law § 241 (6) cause of action.