Opinion
April 5, 1985
Appeal from the Court of Claims, Moriarty, J.
Present — Hancock, Jr., J.P., Callahan, Denman, Green and O'Donnell, JJ.
Judgment unanimously modified, on the law, and, as modified, affirmed, with costs to claimants, in accordance with the following memorandum: Claimant Ollis Wright was injured when he fell from a scaffold while working on a project to replace a culvert in Allegany State Park. The scaffold was seven feet above the ground. It was designed to accommodate two 12-inch-wide planks for use as the standing platform, but at the time of the accident only one 12-inch plank was in place. Although the scaffold was constructed so that guardrails could be attached, none was being used. At trial, claimant contended that the State, as owner of the project, was liable under Labor Law § 240 (1); § 241 (6). Claimant Norma Wright, Ollis' wife, sought damages in a derivative claim. In its decision after trial the court found Labor Law § 240 (1) inapplicable, holding that liability for lack of guardrails on scaffolds must be predicated exclusively on a violation of Labor Law § 240 (2), which applies only when the scaffold is 20 feet or more above the ground. The court did, however, find that the State failed "to provide reasonable and adequate protection and safety" under Labor Law § 241 (6). It concluded that considering the scaffold's height and narrow width "there was a clear danger of injury if some protective devices were not provided." The court further concluded that claimant Ollis' culpable share of responsibility for the accident is 50%. It found that claimant Ollis had been damaged in the sum of $93,659.62 which it reduced by his pro rata share of culpability to $46,829.81 and dismissed the derivative claim of Norma Wright for failure of proof.
Claimants contend on appeal that the court's construction of Labor Law § 240 is in error. We agree. The fact that Labor Law § 240 (2) provides that scaffolding more than 20 feet from the ground or floor "shall have" suitable guardrails and that a failure to provide guardrails is, without more, a violation of the section, does not mean that a lack of guardrails may not, in appropriate circumstances, constitute a violation of Labor Law § 240 (1) for failure "to give proper protection" to persons working on scaffolding less than 20 feet from the ground or floor ( see, Heath v. Soloff Constr., 107 A.D.2d 507; Kalofonos v. State of New York, 104 A.D.2d 75). The evidence supports the court's finding that "considering the scaffold's height and narrow width," the failure to provide guardrails or other protective devices constituted a violation of Labor Law § 241 (6). We find that under the circumstances the lack of guardrails or other protective devices was also a failure "to give proper protection" under Labor Law § 240 (1) and that such violation was a proximate cause of the accident. When liability is predicated on a violation of Labor Law § 240 (1) (unlike liability under Labor Law § 241), comparative negligence is inapplicable ( see, Sullivan v. Held, 81 A.D.2d 663, 664). The award to claimant Ollis is, therefore, increased to $93,659.62, the amount before reduction for comparative fault.
We reject defendant's arguments pertaining to the award made to claimant Ollis. We find, however, that the court erred in dismissing the derivative claim of claimant Norma. The Judge before whom the case was tried has retired and we find it appropriate to make the award instead of remitting to the Court of Claims ( see, CPLR 5501 [c]; 5522; Guth Realty v. Gingold, 41 A.D.2d 479, 482, affd 34 N.Y.2d 440). There was evidence that claimant Norma suffered a loss of her husband's services and that as a result she was forced to perform more of the household chores including work in the yard. Under the circumstances considering the nature and extent of Ollis' injuries, we find that she should receive an award of $10,000 ( see, Ast v. State of New York, 123 Misc.2d 200, affd 106 A.D.2d 909). The judgment is modified accordingly.