Opinion
No. 6969/2004.
2009-02-28
Brian LUONGO, Plaintiff(s), v. The CITY OF NEW YORK, Defendant(s).
Richard Mandel, Law office Of Lawrence Biondi, White Plains, for Plaintiff. Wallace D. Gossett, Brooklyn, for Defendant.
Richard Mandel, Law office Of Lawrence Biondi, White Plains, for Plaintiff. Wallace D. Gossett, Brooklyn, for Defendant.
PAUL A. VICTOR, J.
RELIEF SOUGHT
Plaintiff Brian Luongo seeks summary judgment pursuant to CPLR § 3212 as to that portion of his claim brought under Labor Law § 240(1).
FACTUAL BACKGROUND
The accident underlying this claim took place on August 14, 2003 at approximately 11:40 a.m., on the Dyre Avenue line, a portion of the subway system owned by the defendant City of New York. At the time of the accident, plaintiff was an employee of the New York City Transit Authority. He was part of a work crew whose job it was to hoist girders supporting overhead subway lines, for the insertion of “shim plates”.
In the area where the accident happened, the overhead subway tracks were supported by girders which were mounted not at street level, but rather on concrete abutments which were approximately 12 to 13 feet over the street level. In the area where the accident happened, these abutments were approximately 5 feet wide and 15 feet long. The workers accessed the abutments to work on the girders by means of 11 foot high trucks from which they would step on to the concrete area.
“Shim plates” were pieces of metal 12? 2a 12? and 3/8? thick. They were to be inserted under the girders to account for vibration for trains passing overhead. After they were inserted they were customarily tack welded to the girder.
Before insertion under the girder the shim plates were placed on top of the hydraulic jacks which were used to lift the girder. In order to raise the girder a “C-channel” is bolted to the girder and the C-channel and girder are then lifted by the hydraulic jack. The plaintiff's foreman, Eton Williamson had instructed plaintiff to place the jack underneath the C–Channel. However, as the process began the C–Channel became bent, and one jack alone was insufficient to raise the girder. Thus, it became necessary for the plaintiff and other workers to set up a second jack alongside of the first. The plaintiff set up the second jack on gravel which was on the surface of the concrete abutments. Prior to the incident, the second jack slipped on three or four occasions.
At some point, as the plaintiff was attempting to raise the girder by the use of the second jack, he heard a “big bang” as the jack fell over, causing the shim plates to fall and hit plaintiff's left hand, lacerating it, despite the fact that he was wearing protective gloves. Some additional metal fell as well, which may have been a piece of the C–Channel.
CONTENTIONS OF THE PARTIES
Plaintiff alleges that the accident occurred because the hydraulic jack was placed on an uneven, gravel-strewn surface; and that the girder itself, the hydraulic jack, and the shim plates were not properly secured; and argues therefore that Section 240(1) of the Labor Law was violated
Plaintiff has also asserted causes of action pursuant to § 200 and § 241(6) of the Labor Law.
The defendant claims that § 240(1) of the Labor Law is inapplicable to the facts of this case, and that this episode is not the elevation-type hazard encompassed by the statute; and that this type of work is more properly classified as routine maintenance, which is also not within the protections provided by that section of the Labor Law. The defendant also claims that there was a lack of height differential between the plaintiff and the items which came in contact with him; and that the items which fell would not normally have been expected to be secured as they were hoisted, and that plaintiff has not said how they should have been secured in any event; therefore the protections of § 240(1) are inapplicable.
In reply, plaintiff claims that Section 240(1) is applicable because the plaintiff was struck by the very materials that were involved in the jacking/lifting operation that the plaintiff was engaged in; that these materials were not adequately secured; and that the activity plaintiff was involved in was not “routine maintenance” since the job was designed to replace shim plates to alter the “pumping action” of the girders.
APPLICABLE LAW
Summary Judgment
The proponent of a motion for summary judgment carries the initial burden of production of evidence as well as the burden of persuasion. (Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 320 [1986].) Thus, the moving party must tender sufficient evidence to demonstrate as a matter of law the absence of a material issue of fact. Once that initial burden has been satisfied, the burden of production (not the burden of persuasion) shifts to the opponent, who must now go forward and produce sufficient evidence in admissible form to establish the existence of a triable issue of fact. The burden of persuasion, however, always remains where it began, i.e., with the proponent of the issue. Thus if the evidence on the issue is evenly balanced, the party that bears the burden must lose.' (Director, Office of Workers Compensation Programs v. Greenwich Collieries, supra, 512 U.S. at 272;300 East 34th Street Co. v. Habeeb, 248 A.D.2d 50, 683 N.Y.S.2d 175 [1st Dept.1997].)
The court's function on this motion for summary judgment is issue finding rather than issue determination. (Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395, 144 N.E.2d 387, 165 N.Y.S.2d 49 [1957] ). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue. (Rotuba Extruders v. Ceppos, 46 N.Y.2d 223, 385 N.E.2d 1068, 413 N.Y.S.2d 141 [1978].) Thus, when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied. (Stone v. Goodson, 8 N.Y.2d 8, 167 N.E.2d 328, 200 N.Y.S.2d 627 [1960];Sillman v. Twentieth Century Fox Film Corp., supra ).
Labor Law § 240(1)Labor Law § 240(1) states: “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”.
The core objective of Section 240 is proper protection. Therefore, a non-delegable duty is imposed upon all responsible entities to protect construction workers, not just with scaffolds, but with such “other devices ... as to give proper protection to [such workers].” (Labor Law § 240(1); Torres v. Monroe College, 12 AD3d 261 [1st Dept.2004] ). When a construction worker is not provided with proper protection and is injured as a result of one of the hazards, which Section 240 was enacted to eradicate, the general common law defenses are not available, and absolute liability is imposed on all responsible entities. (Angeles v. Goldhirsch, 268 A.D.2d 217 [1st Dept.2000] ). However, it has been made abundantly clear that “section 240 does not give absolution to the plaintiff when his injury has been caused, exclusively by his intentional acts” (Emphasis supplied.) (Tate v. Clancy–Cullen Storage Co. Inc., 171 A.D.2d 292, 296, 575 N.Y.S.2d 832 [1st Dept.1991].) This kind of egregious conduct has evolved into the legal axiom that liability will not be imposed upon owners and contractors when the Workers conduct is the sole proximate cause of the occurrence. (Weininger v. Hagedorn & Co., 91 N.Y.2d 958, 672N.Y.S.2d 840 [1998], reargument denied,92 N.Y.2d 875, 677 N.Y.S.2d 777 [1998].)
Alterations
As used in the statute, the term “alter” means making a significant physical change to the configuration or composition of the building or structure, and does not encompass simple, routine activities.(Joblon v. Solow, 91 N.Y.2d 457 [1998][extending electrical wiring in an adjacent room, and then chiseling a hole in concrete wall to bring the service in to room in which worker was to hang wall clock, held to constitute “altering”]. In determining whether the injured plaintiff had been engaged in “altering” work, the Court must look at the nature of the entire project:
“Altering' for purposes of section 240(1) requires making a significant physical change to the configuration or composition of the building or structure' “ (Prats v. Port Auth. of N.Y. & N.J., 100 N.Y.2d 878[2003] ), quoting Joblon v. Solow, 91 N.Y.2d 457 [1998], emphasis in original). In determining whether a project falls within the definition of altering,' the court must examine the totality of the work done on the project to determine whether it resulted in a significant physical change' to the building or structure” (Aguilar v. Henry Mar. Serv., 12 AD3d 542 [2d Dept.2004]; Maes v. 408 W. 39 LLC, 24 AD3d 298 [1st Dep't 2005].)
Repairs
It has been held that not every “repair” in the commonly accepted meaning of the word is a “repair” within the statutory sense of the word. See, Lee v. Astoria Generating Corp., 55 AD3d 124 [1st Dept.2008][“repair” involves significant physical change, as opposed to “maintenance” which is “simple, routine activity” that falls outside scope of statute] If the work involved changing component parts that require replacement in the course of normal wear and tear, it has been held to be “routine maintenance” and not repair work as envisioned in the statute. (Smith v. Shell Oil Co., 85 N.Y.2d 1000 [1995];Esposito v. N.Y. City Indus. Dev. Agency, 1 NY3d 526 [2003].) Some of the factors that have been used to differentiate between “routine maintenance” and a statutorily-protected “repair” are: (1) whether the device or component that has been fixed or replaced was one that was intended to have a limited lifespan, and for which periodic replacement would be expected (Jani v.City of New York, 284 A.D.2d 304 [2d Dept.2001] ); (2) whether the device which was the subject of the work had actually been previously inoperable (Jones v. Village of Dannemora, 27 AD3d 844 [3d Dept.2006] ); (3) whether the work was done by a single person in a short period of time, or was a larger job that required several workers( DiBenedetto v. Port Authority of New York and New Jersey, 239 A.D.2d 399 [1st Dept.2002] ); (4) whether the work was performed pursuant to a service contract, or was done in such a way that special payment was required (Arevalo v. NASDAQ Stock Market., 28 AD3d 242 [1st Dept.2006] ); (5) whether the job was part of an on-going construction project, or was a distinct activity (Anderson v. Olympia & York Tower B Company, 14 AD3d 520 [2d Dept.2005].
Sole Proximate Cause v. A Proximate Cause
In order to impose absolute liability upon a responsible entity, the injured plaintiff need only prove that a violation of Labor Law 240 occurred, and that the violation was a proximate cause (not the only cause) of the plaintiff's injuries. (Smith v. Hooker Chemicals, 89 A.D.2d 361, 455 N.Y.S.2d 446,app. dismissed,58 N.Y.2d 824.) Obviously, if the failure of the defendants to provide a statutorily required safety device was a contributing factor to the happening of the occurrence, then under no scenario can it be said that plaintiff's conduct was the sole proximate cause.
In Weininger (supra), the plaintiff fell from a ladder which he needed in order to pull wiring through a series of holes in a ceiling. The Court of Appeals held that it was error for the trial court to have directed a verdict because “ in the circumstances presented, a reasonable jury could have concluded that plaintiff's actions were the sole proximate cause of his injuries and consequently that liability under Labor Law section 240(1) did not attach [citation omitted]”. (emphasis supplied) ( 91 N.Y.2d, supra at 960 ).
Subsequent to Weininger, however, the Court of Appeals continued its review and discussion of the “sole proximate cause” issue in Blake v. Neighborhood Houses, 1 NY3d 280 [2003]. Although again acknowledging that the purpose of Section 240(1) was to provide proper protection to workers, the Court nevertheless held that not every fall by a worker from a ladder or scaffold in and of itself must result in a damage award. ( Blake at 288). In affirming a jury verdict in favor of the defendant in a case where a plaintiff fell from an extension ladder due to his own failure to lock extension clips in place, the Court stated:
“Given the varying meanings of strict (or absolute) liability in these different settings, it is not surprising that the concept has generated a good deal of litigation under Labor Law § 240(1). The terms may have given rise to the mistaken belief that a fall from a scaffold or ladder, in and of itself, results in an award of damages to the injured party. That is not the law, and we have never held or suggested otherwise. As we stated in Narducci v. Manhasset Bay Assoc. (96 N.Y.2d 259, 267 [2001] ), “[n]ot every worker who falls at a construction site, and not any object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240(1).” ... Put differently, an accident alone does not establish a Labor Law § 240(1) violation or causation. This Court has repeatedly explained that “strict” or “absolute” liability is necessarily contingent on a violation of section 240(1) .” Blake, at 289.
The court explained that the plaintiff's actions in Blake did not constitute mere comparative negligence, which would in a common-law negligence action allow a culpable defendant to obtain a reduction of its responsibility upon a finding that the plaintiff was also partially at fault; this, said the court, would be impermissible under § 240. Comparative fault is not a defense in § 240 actions. In Blake the jury found, (and the Court of Appeals specifically noted) that the plaintiff was provided with “proper protection” and that plaintiff's conduct was the sole proximate cause of the accident.
“Plaintiff argues that he is entitled to recover in the face of a record that shows no violation and reveals that he was entirely responsible for his own injuries. There is no basis for this argument. Even when a worker is not “recalcitrant,” we have held that there can be no liability under section 240(1) when there is no violation and the worker's actions (here, his negligence) are the “sole proximate cause” of the accident. Extending the statute to impose liability in such a case would be inconsistent with statutory goals since the accident was not caused by the absence of (or defect in) any safety device, or in the way the safety device was placed”. Blake at 290.
It is clear to this court that when the circumstances demonstrate that a statutory violation was a contributing factor to a worker's fall from a ladder or scaffold, the worker's comparative negligence (as distinguished from intentional wrongdoing) is factually and legally irrelevant, and should not be used to defeat summary judgment on the pretext or speculation that the accident may have been caused solely because of the culpable conduct of the worker. (See, Kyle v. City of New York, 268 A, D, 2d 192, 196 [1st Dept.2000]; see McMahon v. 42nd St. Development Project, Inc., 188 Misc.2d 25, 726 N.Y.S.2d 203, [1/9/05], in which this Court concluded that 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).
Falling Objects
A fall by a worker from a height is not the only hazard or type of risk which Labor Law § 240(1) was intended to address. Although limited, § 240 covers other “specific gravity-related accidents” such as “being struck by a falling object that was improperly hoisted or inadequately secured” ( Ross v. Curtis–Palmer Hydro–Elec. Co., supra, at 501; see, Melo v. Consolidated Edison Co., 92 N.Y.2d 909, 911, 912, 680 N.Y.S.2d 47, 702 N.E.2d 832;Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487, 491, 634 N.Y.S.2d 35, 657 N.E.2d 1318;Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514, 577 N.Y.S.2d 219, 583 N.E.2d 932)
However, just as not every fall from a ladder or scaffold presents a § 240 claim, not every object which falls and injures a worker gives rise to such a claim. As explained in Narducci v. Manhasset Bay Associates, 96 N.Y.2d 259 [2001]:
“Not every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240(1). Rather, liability is contingent upon the existence of a hazard contemplated in section 240(1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein (see, Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 501) ...
Labor Law § 240(1) applies to both “falling worker” and “falling object” cases. With respect to falling objects, Labor Law § 240(1) applies where the falling of an object is related to “a significant risk inherent in ... the relative elevation ... at which materials or loads must be positioned or secured” (Rocovich v. Consolidated Edison Co., supra, 78 N.Y.2d, at 514). Thus, 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 (see, e.g., Pope v. Supreme–K.R.W. Constr. Corp., 261 A.D.2d 523;Baker v. Barron's Educ. Serv. Corp ., 248 A.D.2d 655).Narducci at 268.
While the Court of Appeals decision in Narducci appeared to limit a plaintiff's ability to bring a “falling object” claim solely to situations where the object was in the process of being hoisted or secured, and that court later explained that other falling objects could also trigger § 240 protections (See, Outar v.. City of New York, 5 NY3d 731 [2005] ). For example, in Outar a Transit Authority worker was injured when a previously stored, but unsecured, dolly fell off a bench wall that was approximately 5 1/2 feet high.In unanimously affirming the judgment in the plaintiff's favor, the Court held:
“The 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 (cf. Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 268[2001] )”. Outar at 732.
However, for any “falling object” to come within the protections afforded by § 240, the work place circumstances must present a foreseeable risk. Thus, in Boyle v. 42nd St Development Project, Inc. 38 AD3d 404 [1st Dept.2007], where the plaintiff was injured when a structural steel rod fell down an elevator shaft, the majority held (following Outar ), that since the risk was foreseeable the plaintiff did not have to prove that the object fell while it was being secured. (Compare, Buckley v. Columbia Grammar and Preparatory, 2007 WL 2324611 [1st Dept. 8/16/2007] ). In Buckley, where the plaintiff was injured when riding in an elevator, which was struck by five counterweights which fell after striking a rail-like spike, the court rejected the plaintiff's contention that § 240(1) applied. The Court explained that “what is essential to a conclusion that an object required securing is that it presents a foreseeable elevation risk in light of the work being undertaken”; and since it concluded that the fall of the counterweights was not foreseeable, and did not pose an elevation related hazard inherent in testing the functioning of the elevator, it dismissed plaintiff's action.
DISCUSSION
The court finds that the work being undertaken in this matter was of the type for which Labor Law § 240(1) was designed to provide protection. Contrary to the arguments by the defendant, the work being undertaken by the plaintiff was the type of significant work encompassed by the statute. This was not routine maintenance work, nor the minor replacement of a frequently worn-out item. The work was significant enough to require the use of heavy equipment to lift large supporting structures of an overhead subway line; as such it was repair work as encompassed in the statute.
It appears obvious that the falling objects which caused plaintiff's injuries were caused by, among other things, insufficient equipment as well as the absence, or inadequacy, of statutorily required safety devices such as adequate scaffolding, to allow for more secure insertion of the shim plates.
CONCLUSION
The plaintiff's motion for summary judgment is granted.
This constitutes the decision and order of the court.