To be Argued by:
ROBERT D. LEARY, ESQ.
(Time Requested: 15 Minutes)
APL-2013-00280
Appellate Division Docket No.: CA 12-01962
Erie County Clerk’s Index No.: 2008-3306
____________________________________________________________________________
Court of Appeals
of the
State of New York
----------------------------------
MARC A. NICOMETI,
Plaintiff-Appellant-Respondent,
vs.
THE VINEYARDS OF FREDONIA, LLC, WINTER-PFOHL, INC.,
Defendants-Respondents-Appellants,
THOMAS WHITNEY and SCOTT PFOHL,
Defendants,
--------------------
SCOTT PFOHL,
Third-Party Plaintiff,
WINTER-PFOHL, INC.,
Third-Party Plaintiff-Respondent-Appellant,
vs.
WESTERN NEW YORK PLUMBING –
ELLICOTT PLUMBING AND REMODELING CO., INC.,
Third-Party Defendant-Respondent-Appellant.
_____
BRIEF FOR DEFENDANT-RESPONDENT-APPELLANT
WINTER-PFOHL, INC.
KENNEY SHELTON LIPTAK NOWAK LLP
ROBERT D. LEARY, ESQ.
The Calumet Building, 233 Franklin Street
Buffalo, New York 14202
Telephone: (716) 853-3801
Facsimile: (716) 853-0265
Attorneys for Defendant-Respondent-Appellant,
Winter-Pfohl, Inc.
May 20, 2014
____________________________________________________________________________
DISCLOSURE STATEMENT PURSUANT TO §500.1(f) OF THE
RULES OF THE COURT OF APPEALS
Pursuant to §500.1(f) of the Rules of the Court of Appeals, Winter-Pfohl,
Inc. states that no parents, subsidiaries or affiliates exist.
i
TABLE OF CONTENTS
Page
STATEMENT PURSUANT TO RULE 500.1(f) ………………………... i
TABLE OF CONTENTS ……………………………………….………... ii
TABLE OF CASES AND AUTHORITIES ……………...………....…..... v
PRELIMINARY STATEMENT ………………………………….…....... 1
QUESTIONS PRESENTED ……………………………………...…….... 3
JURISDICTIONAL STATEMENT ..…………………………….…...….. 4
STATEMENT OF THE CASE ..………………………………….….…… 5
A. The Facts Surrounding Plaintiff’s Personal Injury Claim ...….… 5
B. The Proceedings Below ……………..…………………………. 11
1. Description of the Action and the Order of the Court
Below …………………………………………………...…....
11
2. The Decision and Order of the Appellate
Division…………………………………………...…….……
11
ARGUMENT …………….………………..……………………….……...
13
I. PLAINTIFF’S ACCIDENT FALLS OUTSIDE
THE SCOPE OF LABOR LAW §240(1) BECAUSE
THE ACCIDENT WAS NOT THE RESULT OF AN
ELEVATION-RELATED RISK BUT, RATHER,
IT WAS THE RESULT OF A SEPARATE AND
UNRELATED HAZARD, NAMELY, ICE ON
THE FLOOR ………………………………..................…..…...
13
ii
A. Plaintiff’s Injury Was Undisputedly Caused by Slipping
on Ice, and Not by Any of the “Special Hazards”
Envisioned by Labor Law § 240(1) that Warrant
the “Exceptional Protection” of the Statute ….………………….
13
B. The Discrepancies Between Plaintiff’s Medical
Paperwork and Testimony Creates a Question of Fact ……..…...
23
C. Plaintiff’s Repeated References to Alleged
Violations of the Industrial Code are Misplaced
Because They Were Neither Raised in Plaintiff’s
Original Motion Papers, Nor Are They
Determinative of the Issue of Liability
Under Labor Law §240(1) …………..………………….…...…..
25
D. Plaintiff’s Argument that the Improper Placement
of the Footings of the Stilts Was a Violation of
Labor Law §240(1) is Illogical Because it Ignores
the Inherent Difference Between a Ladder and Stilts …………...
27
II. IF THE LOWER COURTS PROPERLY
CONCLUDED THAT PLAINTIFF’S FALL
WAS THE RESULT OF AN ELEVATION-
RELATED RISK FOR WHICH LABOR
LAW §240(1) PROVIDES PROTECTION,
THEN THERE IS STILL A TRIABLE ISSUE
OF FACT WHETHER PLAINTIFF WAS A
RECALCITRANT WORKER, OR WHETHER
HIS ACTIONS WERE THE SOLE
PROXIMATE CAUSE OF HIS INJURIES ……………...…..
28
A. Whether There was a Violation of Labor Law §240(1)
is a Triable Issue of Fact Because the Stilts Plaintiff
Was Using Were Not Defective, Nor Did They Fail ……………
28
B. There Is a Triable Issue of Fact Whether Defendants’
Purported Violation of Labor Law §240(1) Was a
Proximate Cause of Plaintiff’s Injuries or Whether
Plaintiff’s Actions Were the Sole Proximate Cause
of Those Injuries ……………………………………………..….
32
iii
C. The Absence of an Instruction to Plaintiff Not to
Insulate the Area Where There Was Ice on the Floor
Wouldn’t Necessarily Preclude the “Sole Proximate
Cause” Defense if Plaintiff Misused the Stilts
Anyhow………………………………….……………………….
35
CONCLUSION ………………...……………………………………….… 36
iv
TABLE OF CASES AND AUTHORITIES
CASES Page(s)
Andrews v. Ryan Homes, Inc.,
27 AD3d 1197, 1198 (4th Dept. 2006) ………………………
33, 34
Arigo v. Spencer,
39 AD3d 1143, 1144-45 (4th Dept. 2007) …………………..
30
Blake v. Neighborhood Housing Services of New York City, Inc.,
1 NY3d 280, 289 (2003) …………………………………….
29, 32, 35, 36
Briggs v. Halterman,
267 AD2d 753, 754 (3d Dept. 1999) ………………………...
23
Buckley v. J.A. Jones/GMO,
38 AD3d 461 (1st Dept. 2007) ……………………………...
24
Cohen v. Memorial Sloan-Kettering Cancer Center,
11 NY3d 823, 825 (2008) …………………………………...
2, 20
Duda v. John W. Rouse Construction Corp.,
32 NY2d 405, 410 (1973) …………………………………...
32
Hajderlli v. Wiljohn 59 LLC,
71 AD3d 416 (1st Dept. 2010) ……………………………...
32
Jiminez v. Nidus Corp.,
288 AD2d 123 (1st Dept. 2001)……………………...……....
34
Klein v. City of New York,
89 NY2d 833 (1996) ………………………………………..
16
Matos v. Garden State Brick Face of Middle Vil., Inc.,
272 AD2d 70 (1st Dept. 2000)……………………………….
16, 23, 25
McNabb v. Oot Bros., Inc.,
64 AD3d 1237 (4th Dept. 2009) ………………..……………
17, 18, 23
v
Melber v. 6333 Main St., Inc.,
91 NY2d 759 (1998) …...………….……….….………….…
12, 14, 15,
16, 17, 18,
23, 25, 37
Miller v. C.O. Falter Construction Corp.,
226 AD2d 1110 (4th Dept. 1996) …………………………...
30, 34
Narducci v. Manhasset Bay Assocs.,
96 NY2d 259, 267 (2001) …………………………………..
13, 20, 21, 23
Nieves v. Five Boro Air Conditioning & Refrigeration Corp.,
93 NY2d 914, 915 (1999) …………………………………...
22
Primavera v. Benderson Family 1968 Trust,
294 AD2d 923 (4th Dept. 2002) …………………………….
22
Quattrochi v. F.J. Sciame Const. Co.,
11 NY3d 757, 759 (2008)
33, 34
Rocovich v. Consolidated Edison Co.,
78 NY2d 509, 513 (1991) …………………………………..
13, 14, 15, 23
Ross v. Curtis-Palmer Hydro-Elec. Co.,
81 NY2d 494 (1993) …………………………………...……
13, 14, 15,
17, 19, 23
Runner v. New York Stock Exch., Inc.,
13 NY3d 599, 603 (2009) …………………………………...
18
Russell v. Widewaters South Bay Rd. Assocs., LLP,
289 AD2d 1025 (4th Dept. 2001)…………………..…….…..
17, 18, 23
Taglioni v. Harbor Cove Assocs.,
308 AD2d 441, 442 (2d Dept. 2003) ………………………..
30
Thome v. Benchmark Main Transit Assocs., LLC,
86 AD3d 938, 939-940 (4th Dept. 2011) ……………………
33, 34
vi
Weinberg v. Alpine Improvements LLC,
48 AD3d 915, 917 (3d Dept. 2008) …………………………
29, 30
Weininger v. Hagedorn & Co.,
91 NY2d 958, 960 (1998) …………………………………...
32, 34
Wilinski v. 334 East 92nd Housing Devel. Fund Corp.,
18 NY3d 1 (2011)………..…………..……………………....
27
vii
PRELIMINARY STATEMENT
Plaintiff-Appellant-Respondent Marc A. Nicometi (“plaintiff” or
“Nicometi”) commenced this Labor Law and common-law negligence action
seeking damages for injuries he allegedly sustained while working on stilts.
Plaintiff claims that he was installing insulation between the ceiling joists of
an apartment building under construction when he slipped on a patch of ice on the
floor. The seminal and decisive question on this appeal is whether an accident
occurring at ground level while one is walking, albeit elevated on stilts, and slips
on ice, gives rise to absolute liability under Labor Law §240(1).
This Court has determined that the extraordinary protections of this statute
apply only to a narrow class of dangers -- a determination critical to the resolution
of this appeal. It is difficult to imagine how plaintiff’s slip on ice at ground level
could have entailed an elevation-related risk which called for any of the protective
devices of the types listed in §240(1). Ice at ground level is not a peril targeted by
Labor Law §240(1) and, as a practical matter, one does not erect scaffolding over
it, or use any of the other devices of the sort listed in that statute, to avoid such a
hazard.
Ice on a floor is not a risk that can be avoided by proper placement or
utilization of any of the devices listed in Labor Law §240(1). The protective
equipment described in that statute is not designed to avert the hazard plaintiff
1
encountered here. No Labor Law §240(1) liability exists where an injury results
from a separate hazard unrelated to the risks which brought about the need for a
safety device like those listed in the statute. Cohen v. Memorial Sloan-Kettering
Cancer Center, 11 NY3d 823, 825 (2008). Here, the presence of ice on the floor of
the apartment building was not the risk which brought about the need for the stilts,
in the first place, and the accident was not the result of the type of hazard that the
use or placement of the safety devices listed in Labor Law §240(1) was designed to
protect against, but was the result of the usual and ordinary dangers at a
construction site to which the extraordinary protections of Labor Law §240(1) do
not extend.
Certainly, there are other statutes, as well as rules and regulations, to protect
a worker from the hazard of ice on a floor, but Labor Law §240(1) and its
extraordinary protections is not one of them. In the circumstances presented,
plaintiff did not encounter a hazard contemplated by the statute, and his accident
falls outside the scope of Labor Law §240(1).
2
QUESTIONS PRESENTED
1. Did the defendants fail to provide proper protection to plaintiff within the
meaning of Labor Law §240(1) where, as here, plaintiff slipped on ice and
fell while wearing stilts?
2. If, and only if, Labor Law §240(1) is applicable to the facts of this case, did
defendants raise material questions of fact as to whether defendants violated
Labor Law §240(1) and whether such violation was a proximate cause of
plaintiff’s injury, or whether plaintiff’s actions were the sole proximate
cause of his injury?
3
JURISDICTIONAL STATEMENT
This Court has jurisdiction over this appeal pursuant to CPLR 5602(b)(1).
The Appellate Division issued a non-final order, with two judges dissenting, on a
prior appeal in the action, and being of the opinion that a question of law has arisen
that ought to be reviewed by this Court, granted leave to appeal to this Court.
4
STATEMENT OF THE CASE
Defendant, Thomas Whitney, is President and co-owner of defendant, The
Vineyards of Fredonia, LLC (“The Vineyards”), a new development comprised of
sixty apartments in ten buildings (R.337-338). The Vineyards hired Winter-Pfohl,
Inc. (“Winter-Pfohl”), as its general contractor to construct the buildings (R.340)
and Winter-Pfohl hired 84 Lumber to, inter alia, install insulation (R.405).
Nicometi, Collin Grzeskowiak (“Grezeskowiak”), and Russell Ellsworth
(“Ellsworth”) were employees of 84 Lumber and working as insulation installers
on the project (R.100, 115-116, 131). These three workers were supervised by Ray
Hilliker (“Hilliker”), a manager at 84 Lumber (R.114).
A. Plaintiff’s Sworn Testimony
Plaintiff testified that, on the day of the accident, Ellsworth drove to the
construction site in a company vehicle with plaintiff and Grzeskowiak as
passengers (R.129). It was a cold day, and there was ice on the floor inside the
building where plaintiff was working (R.151-152). According to plaintiff, no one
else was working in the same room as he, except for a “sprinkler guy” who was
running leak tests on the sprinkler system (R.152-153).
Plaintiff was using stilts to install insulation in the ceilings (R.165-166) and
said that he was using a hammer-tacker to affix the insulation in place (R.191,
200). Plaintiff had only used a scaffold once to install insulation, and that was
5
inside a very large church (R.287-288). He said that stilts were the proper device
for The Vineyards’ job, and he felt that he had all of the tools and devices
necessary for that job (R.182-183).
Plaintiff testified that, on the day of his accident, he was concerned about his
safety where there was water and ice on the floor, and expressed his concern to
Hilliker (R.151, 281, 290) who, according to plaintiff, had arrived at the site within
an hour before the accident (R.318) and told someone, whom plaintiff believed to
be a contractor, to take care of the ice (R.160-161).
Plaintiff claimed that as he swung his hammer-tacker, he stepped forward
onto the ice and slipped, falling onto a bag of insulation on the floor (R.194). He
said that his stilts were not defective in any way (R.196) and that they elevated the
user of those stilts from a low of two feet to a high of five feet (R.173).
According to plaintiff, all three of his co-workers were within sight of him
(R.198), and came over to assist him after he fell. He said that they unstrapped
him from his stilts, and that Hilliker and Grzeskowiak then helped him up (R.201-
202). He thought that Grzeskowiak had been using a ladder to pack window
insulation, although he wasn’t sure what Grzeskowiak was doing just before the
accident, nor where he was (R.199, 288), and he thought that Ellsworth was
installing insulation the same way as plaintiff just before the accident (R.198-199).
6
Plaintiff testified that, after the accident, he rode back to the 84 Lumber store
with a salesman, Mike Nowak, and called his aunt to pick him up and that she took
him to the hospital later that day (R.205-206).
B. Hilliker’s Sworn Testimony
Hilliker testified that he arrived at the work site less than fifteen minutes
before plaintiff’s accident (R.585-586). He did not recall anyone from the other
trades inside the building that morning, and said that he did not speak to anyone
except for his three workers (R.589). He saw that there was a very small area of
ice off to the side of the room, near the wall (R.587), and warned the workers about
it, telling them not to insulate that area (R.589).
According to Hilliker, plaintiff was using his hands, not a hammer-tacker, to
install friction-fit insulation in the ceiling (R.577). The ceilings were not very
high, and plaintiff was only elevated on stilts about eighteen inches (R.574, 628).
Scaffolding was only used for higher ceilings and a ladder or scaffolding was not
needed for this insulation installation project (R.547-548).
The workers had agreed not to insulate the area where there was ice, and
when Hilliker noticed that plaintiff was in that area, he entered the room to tell
plaintiff to leave that area, just as plaintiff slipped and fell onto a bag of insulation
(R.572-574, 591-592).
7
He said that plaintiff took off his own stilts before standing up and walking
around (R.583) and that, thereafter, Hilliker used his own car to drive plaintiff back
to the 84 Lumber store (R.586, 620).
C. Grzeskowiak’s Sworn Testimony
Grzeskowiak, as did plaintiff, testified that the three of them, including
Ellsworth, rode to the job site, together, in the company van (R.449). He
remembers that there were plumbers on site, because he saw their vans parked
outside (R.450-451, 470), and that it was a cold day, claiming that there was ice on
the floor inside the building where they were working (R.480). He acknowledged
that Hilliker had warned them about ice on other occasions, but claims that Hilliker
did not warn him about ice that morning (R.461-462, 525). In fact, he doesn’t
believe that Hilliker was even there that day (R.459, 469, 495).
Contrary to plaintiff’s testimony, but consistent with the testimony of
Hilliker, Grzeskowiak recalls that plaintiff was using his hands, not a hammer-
tacker, to install friction-fit insulation in the ceiling (R.503). He testified that he,
himself, was working on stilts elevated about three feet, and that he was only four
feet away away from, and facing, plaintiff, who was doing the exact same work as
Grzeskowiak (R.457, 473, 477-479). He claims that he saw plaintiff’s feet
encounter the icy floor and go out from underneath him (R.476-478) but, contrary
8
to the testimony of plaintiff and Hilliker, he said that plaintiff fell onto the bare
concrete, landing on his butt and not onto a bag of insulation (R.479).
Grzeskowiak claims that only he and plaintiff were in the room at the time
of the accident (R.479), and that after the accident he undid his own stilts before
picking up plaintiff and removing plaintiff’s stilts (R.478-479). He says that
plaintiff’s uncle picked up Nicometi from the job site, because he recognized the
vehicle (R.484-485).
Grzeskowiak mostly used stilts or a scaffold for insulation installation and
rarely used a ladder (R.444-445). He would use a scaffold instead of stilts for a
twenty foot ceiling, and would not have used a ladder or a scaffold for this
insulation installation project (R.504).
D. Ellsworth’s Sworn Testimony
Contrary to the testimony of his two co-workers, Ellsworth testified that he
drove alone to the job site in his own vehicle and that his co-workers drove to the
site in a company truck (R.664). He recalls Hilliker arriving maybe a couple of
hours after Ellsworth got there (R.673). Ellsworth did not see any ice on the floor
inside the building that morning (R.690-691), and he doesn’t know why plaintiff
fell (R.727).
Ellsworth said that he rarely used a ladder for insulation installation (R.658).
The height of the ceilings was normal height, and he was using stilts at their lowest
9
setting, which enabled him to reach eight feet comfortably (R.679). He was
working in the garage and could see plaintiff through the wall joists, but did not
see him fall, although he heard him fall, and when Ellsworth turned his head to see
what had happened, he saw plaintiff lying on top of a bag of insulation (R.679-680,
683-684).
E. Plaintiff’s Medical Records
1. A HealthWorks form signed by plaintiff and dated a day after the
accident states, in his handwriting:
I was walking around on stilts elevated 10 ft in the air
walked onto a sheet of ice covered by plastic bags I
sliped [sic] fell I herd [sic] two to three pops and realized
I was in severe pain and injured (R.867).
2. Dr. Capicotto’s records dated March 16, 2006, state:
On stilts about 4 feet above the ground carrying a 15
pound bag of insulation when he slipped on a patch of ice
and fell to the ground. (R.868).
10
The Proceedings Below
A. Description of Action and the Order of the Lower Court
Plaintiff commenced this Labor Law and common-law negligence action
seeking damages for injuries he sustained while working on stilts. Plaintiff
thereafter moved for partial summary judgment on liability under Labor Law
§240(1), and defendants, Pfohl and Winter-Pfohl, Inc., cross-moved for summary
judgment dismissing the Labor Law §240(1) claim and for summary judgment
dismissing all claims against Pfohl, individually. The Supreme Court, Erie
County, per Justice Thomas J. Drury, by order entered June 12, 2012, inter alia,
granted plaintiff’s motion and denied that part of the cross-motion of Pfohl and
Winter-Pfohl for summary judgment dismissing the Labor Law §240(1) claim.
The Court also granted that part of the cross-motion of Pfohl and Winter-Pfohl for
summary judgment dismissing all claims against Pfohl, individually, from which
plaintiff took no appeal.
B. The Decision and Order of the Appellate Division
By Memorandum and Order entered June 14, 2013, the Appellate Division,
on the law, modified the order of the Supreme Court by denying plaintiff’s motion.
In modifying the order below, the Fourth Department held, contrary to the
contention of Winter-Pfohl, and in disregard of its own prior decisions, that the
Supreme Court properly concluded that plaintiff’s fall was the result of an
11
elevation-related risk for which Labor Law §240(1) provides protection. Citing
Melber v. 6333 Main St. Inc., 91 NY2d 759, 763-764 (1998), the court held that
the Supreme Court properly concluded that the statute applies to plaintiff’s §240(1)
claim “[i]nasmuch as the stilts ‘failed while plaintiff was installing the [insulation
on the ceiling] – work requiring the statute’s special protections’”. The Fourth
Department agreed, however, with Winter-Pfohl’s further contention that the
Supreme Court erred in granting plaintiff’s motion because there is a triable issue
of fact whether plaintiff’s actions were the sole proximate cause of his injuries.
12
ARGUMENT
POINT I
PLAINTIFF’S ACCIDENT FALLS OUTSIDE THE SCOPE OF
LABOR LAW §240(1) BECAUSE THE ACCIDENT WAS NOT
THE RESULT OF AN ELEVATION-RELATED RISK BUT,
RATHER, IT WAS THE RESULT OF A SEPARATE AND
UNRELATED HAZARD, NAMELY, ICE ON THE FLOOR.
Generally, the statute applies only to elevated hazards, and not the ordinary
risks of a construction site. Hence, not every fall by a worker at a construction site
invokes the extraordinary protections of Labor Law §240(1). Rather, such liability
depends on “the existence of a hazard contemplated in section 240(1)” and on “the
failure to use, or the inadequacy of, a safety device of the kind enumerated
therein.” Narducci v. Manhasset Bay Assocs., 96 NY2d 259, 267 (2001), citing
Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 (1993). Here, neither
requirement for the application of Labor Law §240(1) is satisfied.
A. Plaintiff’s Injury Was Undisputedly Caused by Slipping on Ice, and
Not by Any of the “Special Hazards” Envisioned by Labor Law
§ 240(1) that Warrant the “Exceptional Protection” of the Statute
There is no liability under Labor Law §240(1) if the worker’s injury is
caused by a hazard that was not contemplated by the Legislature in enacting the
statute. Narducci, 96 NY2d at 267, citing Rocovich v. Consolidated Edison Co.,
78 NY2d 509, 513 (1991).
13
The Rocovich Court described a section 240(1) hazard as one “related to the
effects of gravity where protective devices are called for . . . because of a
difference between the elevation level of the required work and a lower level . . . .”
Id. at 514. These are the “elevation-related risks” the Legislature considered as
deserving the special protections of Labor Law § 240(1); injuries from different
types of hazards are not protected under the statute even if they are caused by the
absence of an adequate scaffold or other required safety device. Ross, 81 NY2d at
500.
In Melber, this Court held that a carpenter who was injured when he walked
down a corridor wearing 42-inch stilts that he was using to install metal studs in
drywall and who tripped over an electrical conduit protruding from an unfinished
floor had no cause of action based on Labor Law §240. This Court reasoned that
the carpenter’s injury resulted from the conduit on the floor, not from a failure of
the stilts, and that therefore the injury did not result from an elevation-related risk.
Agreeing with the dissenting Justices below, who “concluded ‘the Legislature did
not contemplate that an accident occurring at ground level while one is walking,
albeit elevated on stilts, should give rise to absolute liability under Labor Law §
240(1)’”, this Court held that the “plaintiff’s accident fell outside the scope of
Labor Law §240(1).” Id. at 761-762.
14
The Melber Court did not impose liability for a fall from stilts, but instead
dismissed the cause of action under section 240(1), reasoning that:
[c]onsistent with Rocovich and Ross, we have confined
liability under the statute to failure to protect against
elevation-related risks. [Citations omitted] … To be
sure, conduit protruding from an unfinished floor – like a
trough filled with hot oil – is a hazard in the workplace
against which employees should be protected. However,
neither the trough nor the conduit is a risk that can be
avoided by proper placement or utilization of one of the
devices listed in Labor Law § 240(1). The protective
equipment envisioned by the statute is simply not
designed to avert the hazard plaintiff encountered here.
Melber, 91 NY2d at 763. Likewise, the risk of slipping on ice at ground
level, while working on stilts, is not a risk that can be avoided by proper placement
or utilization of one of the devices listed in Labor Law § 240(1). The protective
equipment envisioned by the statute is simply not designed to avert the hazard
plaintiff encountered here – slipping and falling on ice.
The Melber Court succinctly stated that:
[e]ven if the stilts failed to avoid that pitfall [electrical
conduit protruding from the floor], “plaintiff’s injuries
allegedly flowed from a deficiency in the device that was
‘wholly unrelated to the hazard which brought about its
need in the first instance’” and did not interfere with or
increase the danger of injury in the performance of his
elevation-related task (Ross v. Curtis-Palmer Hydro-
Elec. Co., 81 NY2d, at 501, supra, quoting Ross v.
Curtis-Palmer Hydro-Elec. Co., 180 AD2d 385, 394
[Mercure, J., dissenting in part]). Thus, plaintiff must
look elsewhere for his remedy. [emphasis added].
15
Melber, 91 NY2d at 763-764. The ice on the unfinished floor in the instant case is
not unlike the electrical conduit protruding from the unfinished floor in Melber. It
did not interfere with or increase the danger of injury in the performance of
plaintiff’s elevation-related task any more, or less, than the electrical conduit did in
Melber.
Plaintiff’s reliance on Matos v. Garden State Brick Face of Middle Vil., Inc.,
272 AD2d 70 (1st Dept. 2000) to distinguish Melber from the instant case is
misplaced. The First Department misconstrued Melber as turning on the fact that
the plaintiff was injured while walking down a hallway to retrieve a tool, rather
than actually performing work at a height:
Here, in distinction to Melber, where the plaintiff was
injured in a fall from stilts as he walked down a hallway
to retrieve a tool, plaintiff was injured in the course of
actually performing construction at an elevation. Indeed,
the Melber Court noted that “[h]ad [the stilts] failed
while plaintiff was installing the metal studs in the top of
the drywall - work requiring the statute’s special
protections – a different case would be presented” (supra,
at 763-764; see also, Klein v. City of New York, 89 NY2d
833).
Matos, 272 AD2d at 70-71. This abbreviated quote from Melber is
taken out of context from a passage which reads in full:
The stilts, moreover, performed the function Labor Law
§240(1) required of them: allowing plaintiff to safely
complete his work at a height. Had they failed while
plaintiff was installing the metal studs in the top of the
drywall – work requiring the statute’s special protections
– a different case would be presented. But here, as was
16
the case in Ross, injury resulted from a separate hazard –
electrical conduit protruding from the floor. Even if the
stilts failed to avoid that pitfall, “plaintiff’s injuries
allegedly flowed from a deficiency in the device that was
‘wholly unrelated to the hazard which brought about its
need in the first instance’” and did not interfere with or
increase the danger of injury in the performance of his
elevation-related task (Ross v. Curtis-Palmer Hydro-
Elec. Co., 81 NY2d, at 501, supra, quoting Ross v.
Curtis-Palmer Hydro-Elec. Co., 180 AD2d 385, 394
[Mercure, J., dissenting in part]). Thus, plaintiff must
look elsewhere for his remedy. [emphasis added].
Melber, 91 NY2d at 763-764. The distinction to be made is not whether plaintiff
was injured in the course of actually performing construction at an elevation, but
whether the injury resulted from a hazard that is contemplated by the statute.
Of critical importance is that here, as in Melber, plaintiff doesn’t claim that
his stilts failed (e.g., that they buckled, bent, broke, came apart, collapsed, etc.)
which might have, otherwise, invoked the protection of Labor Law §240(1).
Instead, plaintiff claims that he slipped on ice, a condition “wholly unrelated to the
hazard [i.e., installing insulation at ceiling level] which brought about [the] need
[for stilts] in the first instance” Id.
Melber was properly understood and correctly applied by the Fourth
Department in both Russell v. Widewaters S. Bay Rd. Assoc., LLP, 289 AD2d
1025 (4th Dept. 2001), and McNabb v. Oot Bros., Inc., 64 AD3d 1237 (4th Dept.
2009), which are indistinguishable from the instant case, although in those cases
17
the plaintiffs, while working on stilts, tripped over obstacles on the floor, rather
than slipped on ice on the floor. The Russell decision reads in full:
Supreme Court properly granted that part of third-party
defendant’s cross motion seeking summary judgment
dismissing the Labor Law §240(1) claim. Plaintiff Dean
Russell, a subcontractor, tripped over an electrical cord
while working on stilts and, in doing so, “did not
encounter a hazard contemplated by the statute” (Melber
v. 6333 Main St., 91 NY2d 759, 761).
Similarly, McNabb, in which “[p]laintiff was working on stilts when he
tripped over an electrical cord, causing him to fall and sustain injuries” (Id.), held:
Contrary to the contention of plaintiff on his cross
appeal, the court properly dismissed the Labor Law
§240(1) claim against all defendants because the accident
does not fall within the purview of that statute (see
Melber v. 6333 Main St., 91 NY2d 759, 763-764 [1998];
Russell v. Widewaters S. Bay Rd. Assoc., 289 AD2d
1025 [2001]).
Id. at 1239. Thus, the distinction to be made is whether the stilts failed while
avoiding a hazard which brought about their need in the first instance, and not
whether plaintiff was actually working at an elevated height at the precise moment
that he tripped or slipped.
More recently, in Runner v. New York Stock Exch., Inc. (13 NY3d 599, 603
[2009]), this Court stated that “the single decisive question is whether plaintiff’s
injuries were the direct consequence of a failure to provide adequate protection
against a risk arising from a physically significant elevation differential”. This
18
Court further stated that “the governing rule is to be found in the language from
Ross … where we elaborated more generally that ‘Labor Law §240(1) was
designed to prevent those types of accidents in which the scaffold, hoist, stay,
ladder or other protective device proved inadequate to shield the injured worker
from harm directly flowing from the application of the force of gravity to an object
or person’”. Id. at 604, quoting Ross v. Curtis-Palmer Hydro-Elec., Co., 81 NY2d
at 501 (emphasis in original).
Here, it cannot be said that the stilts “proved inadequate to shield the
[plaintiff] from harm directly flowing from the application of the force of gravity
to an object or person” (Id. at 603 [emphasis omitted]), and the “right of recovery
afforded by the statute does not extend to other types of harm, even if the harm in
question was caused by an inadequate, malfunctioning or defectively designed
[safety device]”. Ross, 81 NY2d at 501. Plaintiff did not fall off the stilts.
Moreover, plaintiff’s injury did not flow directly from the force of gravity to the
stilts. Plaintiff testified that there was nothing wrong with his stilts and that they
were the right equipment for the job. He slipped and fell on ice, a risk from which
none of the safety devices enumerated in Labor Law §240(1) would have protected
him.
Obviously, gravity plays a role every time a person on earth falls, but the
Court, in discussing the risks covered by the statute, stated in Ross (81 NY2d at
19
501) that the “special hazards” for which the statute provides “exceptional
protection” “do not encompass any and all perils that may be connected in some
tangential way with the effects of gravity”. In this case, had plaintiff walked
across the ice wearing boots rather than stilts, the same accident might have
occurred. His injury did not flow directly from the application of the force of
gravity on him or his stilts, but from slipping on ice - an ordinary risk of a
construction site.
This situation described in this case does not present an elevation-related
risk that occurred “because of the absence or inadequacy of a safety device of the
kind enumerated in the statute.” Narducci, 96 NY2d at 268. None of those safety
devices were intended to protect plaintiff from the risk of slipping on ice. The risk
of slipping on ice (which is not an elevation-related risk) occurred regardless of the
presence or adequacy of any safety device of the kind enumerated in section 240,
and “the hazard from one type of activity cannot be ‘transferred’ to create liability
for a different type of accident.” Id. Plaintiff’s injuries from slipping on ice are
not a result of the failure to provide adequate protection against a risk arising from
a physically significant elevation differential.
There can be no liability under Labor Law §240 (1) where the “injury results
from a separate hazard wholly unrelated to the risk which brought about the need
for the safety device in the first place.” Cohen, 11 NY3d at 825. In Cohen,
20
plaintiff fell from a ladder not because the ladder malfunctioned but because he
tripped over two unconnected pipes protruding from the wall. Id. This Court held
that this “was not the risk which brought about the need for the [ladder] in the first
instance, but was one of the usual and ordinary dangers at a construction site to
which the extraordinary protections of Labor Law § 240(1) [do not] extend.” Id.
(internal quotations and citations omitted).
A safety device involved in an elevated-risk construction accident must have
been intended to address the elevated risk that caused plaintiff’s injury. Narducci,
96 NY2d at 267. The Narducci plaintiff was working at an elevation when a light
fixture he was attempting to install into a metal grid in the ceiling fell out of the
grid and struck him, injuring him; plaintiff did not fall from the ladder, and he
admitted that it did not malfunction. Id. at 268. Plaintiff claimed that a scissor
jack would have prevented the accident, but the Court noted that a scissor jack is
designed to protect the worker from falling, which was “an entirely different risk”
from the risk that actually injured him – being struck by a light fixture. Id. at 269.
Here, plaintiff has also argued that a scaffold or ladder would have
prevented this injury. A scaffold or ladder, even if properly placed, would not
have protected plaintiff from slipping on the ice as he stepped off the ladder or
scaffold, because those devices are not designed to protect a worker from slipping
on ice. A scaffold or ladder is designed to protect the worker from falling off an
21
elevated position, which is an entirely different risk than the risk that actually
injured him – slipping on an icy surface.
Similarly, this Court reversed the grant of summary judgment to plaintiff
and granted defendant’s motion for summary judgment in a case where the
plaintiff tripped as he stepped off a ladder; one foot remained on the ladder, as he
allegedly tripped over a portable light concealed by a dropcloth, twisted his ankle,
fell and incurred injuries. Nieves v. Five Boro Air Conditioning & Refrigeration
Corp., 93 NY2d 914, 915 (1999). This Court held that
plaintiff’s injury resulted from a separate hazard wholly
unrelated to the danger that brought about the need for
the ladder in the first instance – an unnoticed or
concealed object on the floor. There was no evidence of
any defective condition of the ladder or instability in its
placement. Hence, the risk to plaintiff was not the type
of extraordinary peril section 240(1) was designed to
prevent. Rather, his injuries were the result of the usual
and ordinary dangers at a construction site. Therefore,
plaintiff is not entitled to Labor Law § 240 (1) protection
because no true elevation-related risk was involved here.
Id. at 916. See also Primavera v. Benderson Family 1968 Trust, 294 AD2d 923
(4th Dept. 2002) (plaintiff’s injuries resulting from his fall from a scissor lift where
the lift rolled into an empty unguarded swimming pool were held by the Fourth
Department as “not the result of the hazards of installing duct work at an elevation,
but rather was the result of a separate and unrelated hazard, i.e., an empty
unguarded swimming pool.” Id. at 924 (citations omitted).
22
Here, plaintiff’s injury resulted from an ordinary hazard – ice – that was
unrelated to the danger that brought about the need for the stilts in the first place
(R.851). Plaintiff needed to use stilts in order to reach his work located in the
ceiling (R.851). The stilts enabled him to safely perform his elevated work – until
he stepped onto the ice (R.851). Plaintiff’s testimony, confirmed by the testimony
of those who witnessed the accident, makes clear that he fell NOT because of any
problem with the stilts, but because of the ice (R.852). He had no problem using
the stilts until he reached the ice and has never alleged that the stilts were defective
or malfunctioned in any way (R.852). It was the ice on the floor that caused his
accident, not the stilts. Under Rocovich, Ross, Narducci, Melber, Russell and
McNabb, plaintiff’s fall on the ice while he was using stilts does not trigger the
extraordinary protections of Labor Law § 240(1).
B. The Discrepancies Between Plaintiff’s Medical Paperwork and
Testimony Creates a Question of Fact
Should all but the Matos court have misconstrued this Court’s decision in
Melber, and the distinction truly to be made is whether or not plaintiff was actually
engaged in elevated work at the precise moment of the accident, then there still is
an issue of fact as to whether such was the case in this instance. In Briggs v.
Halterman, 267 AD2d 753, 754 (3d Dept. 1999), the plaintiff completed medical
paperwork soon after his accident that gave a different account of the accident than
his sworn testimony. The court found that this discrepancy, among others, created
23
“questions of fact concerning the circumstances surrounding plaintiff’s accident,”
such that the grant of summary judgment was not proper. Id. at 755. See also
Buckley v. J.A. Jones/GMO, 38 AD3d 461 (1st Dept. 2007) (the incident report,
prepared by the safety supervisor, reported that the ladder was being used properly,
which was inconsistent with plaintiff’s testimony, and thereby created an issue of
fact, defeating plaintiff’s motion for summary judgment).
Here, one day after the accident, Nicometi wrote an account of the accident,
in his own handwriting, which he also signed, that states he was “walking around”
when he fell:
I was walking around on stilts elevated 10 ft in the air
walked onto [sic] a sheet of ice covered by plastic bags I
sliped [sic] fell I herd two to three pops and realized I
was in severe pain and injured.
See HealthWorks-WNY-LLP: Consent for Treatment for an On-the-Job Injury
(R.867). This medical report differs from plaintiff’s deposition testimony of
January 25, 2011 – almost exactly five years later – that he was installing
insulation at the time of his fall (R.857). Likewise, a report of plaintiff’s surgeon
dated only two months after the accident, also raises a question of fact as to
whether plaintiff was actually installing insulation at the time of his accident, or
just walking around:
On stilts about 4 feet above the ground carrying a 15
pound bag of insulation when he slipped on a patch of ice
and fell to the ground.
24
See Dr. Capicotto’s report dated March 18, 2006 (R.868). If the account given in
either of these medical records, both created a short time after the accident, is
accurate, then plaintiff may not have been engaged in actual work at a height at the
time of his slip and fall but, instead, walking around like the plaintiff in Melber or
just carrying a bag of insulation on which he fell. So, under these circumstances,
there would be no liability under section 240(1), even if credence is given to the
distinction made by the First Department in Matos. See Matos, 272 AD2d at 70-
71. At a minimum, these two records show that there is an issue of fact regarding
whether plaintiff was installing insulation at the time of the accident – or walking
around or, perhaps, fetching a bag of insulation. This issue of fact should preclude
summary judgment for plaintiff, even if section 240(1) is found to apply to this
accident. Noteworthy, however, neither medical record creates an issue of fact as
to whether plaintiff slipped on the ice. This fact is one of the very few facts
consistent throughout the medical records and deposition testimony.
C. Plaintiff’s Repeated References to Alleged Violations of the
Industrial Code are Misplaced Because They Were Neither
Raised in Plaintiff’s Original Motion Papers, Nor Are They
Determinative of the Issue of Liability Under Labor Law
§240(1).
There are rules regulating the use of stilts relevant to the issue of liability
under Labor Law §241(6), which is not an issue before this Court, nor was it an
issue properly raised in either of the courts below. Plaintiff commented on the
25
propriety of using stilts on a slippery floor and without readily available
scaffolding for the first time in a reply affirmation (R.874-875) in an effort to
bootstrap his argument for liability under Labor Law §240(1) by citing rules
germane only to the issue of liability under Labor Law §241(6).
Had the relevancy of those rules been timely raised in the first instance,
Winter-Pfohl would have argued that the prohibitive use of stilts on a floor that
was not free of a slippery substance is further evidence of plaintiff’s misuse of the
stilts in an area that he was told by his supervisor not to insulate, less than fifteen
minutes before plaintiff entered that area and fell, because it would be unsafe to
walk with stilts on ice (R. 585-586, 589-590).
Winter-Pfohl would have also argued that the absence of readily available
scaffolds for any person who may elect to use such scaffold in lieu of stilts was not
a proximate cause of plaintiff’s accident because plaintiff, himself, testified that
stilts were the proper device for this job, and that he had all the tools and devices
that he needed for his job (R.182-183). He also testified that he had never used a
ladder for installing insulation, and had rarely used a scaffold (R.125). He had
only used a scaffold once, in a very large church and, even then, he also used stilts
(R.287-288). Thus, he would not likely have used a scaffold even if one had been
readily available.
26
Furthermore, even if the relevancy of the Industrial Code rules had been
timely raised, Labor Law §240(1) does not require that a worker be furnished with
redundant devices. Stilts are just another variation of a scaffold and both serve the
same purpose, only stilts provide for greater mobility and more efficiency in
certain circumstances such as those in this case.
D. Plaintiff’s Argument that the Improper Placement of the
Footings of the Stilts Was a Violation of Labor Law §240(1)
is Illogical Because it Ignores the Inherent Difference
Between a Ladder and Stilts.
The cases cited by plaintiff in support of his argument that the improper
placement of the stilts was a violation of Labor Law §240(1) all involve ladders
that slipped out from under the injured worker because of their improper placement
on an uneven or slippery surface and ignore the inherent difference between a
ladder and stilts. A ladder is meant to be immobile once it is positioned for
elevated work, whereas the very reason for using stilts is to provide greater
efficiency by allowing a worker to move along with the work, and it would make
no sense for another person to walk along side a worker on stilts, telling him where
to place each step he takes.
This Court has recognized that common sense and logic must be considered
in certain circumstances. See Wilinski v. 334 East 92nd Housing Devel. Fund
Corp., 18 NY3d 1, 11 (2011) (the Court would not impose liability “for failure to
27
provide protective devices to prevent the walls or objects from falling, when their
fall was the goal of the work” because that “would be illogical”).
28
POINT II
IF THE LOWER COURTS PROPERLY CONCLUDED THAT
PLAINTIFF’S FALL WAS THE RESULT OF AN ELEVATION-
RELATED RISK FOR WHICH LABOR LAW §240(1)
PROVIDES PROTECTION, THEN THERE IS STILL A
TRIABLE ISSUE OF FACT WHETHER PLAINTIFF WAS A
RECALCITRANT WORKER, OR WHETHER HIS ACTIONS
WERE THE SOLE PROXIMATE CAUSE OF HIS INJURIES.
A finding that plaintiff’s fall was the result of an elevation-related risk for
which Labor Law §240(1) provides protection does not, by itself, impose liability
on the defendants.
A. Whether There was a Violation of Labor Law §240(1) is a
Triable Issue of Fact Because the Stilts Plaintiff Was Using
Were Not Defective, Nor Did They Fail.
There is no liability under Labor Law § 240(1) unless the injured plaintiff
shows that defendant violated section 240(1) and that the violation was the
proximate cause of plaintiff’s injury. Blake v. Neighborhood Housing Services of
New York City, Inc., 1 NY3d 280, 289 (2003). The statute is violated where a
contractor, owner or agent thereof does not provide “proper protection” to a worker
and that failure proximately causes the worker’s injury. Id.
A defendant makes a prima facie showing that there was no violation of this
statutory protection where there is no evidence that the safety device
malfunctioned or was not adequate for the task at hand. Weinberg v. Alpine
Improvements LLC, 48 AD3d 915, 917 (3d Dept. 2008) (plaintiff had a cheese-like
29
substance on his boots when he slipped and fell off a ladder, and conceded that the
ladder itself did not fail, and the court ruled that he could not maintain a 240[1]
claim).
Where the safety device provided to the worker was not defective, there is
an issue of fact whether it failed to provide him with proper protection. Arigo v.
Spencer, 39 AD3d 1143, 1144-45 (4th Dept. 2007) (grant of summary judgment to
plaintiff reversed where it was undisputed that the ladder was not defective,
however there was an issue of fact whether the ladder “kicked out” and thus failed
to provide plaintiff with proper protection); see also Taglioni v. Harbor Cove
Assocs., 308 AD2d 441, 442 (2d Dept. 2003). ( “[w]here an employee is injured in
a fall from a ladder, which is not otherwise shown to be defective, the issue of
whether the ladder provided the employee with the proper protection required
under [Labor Law §240(1)] is a question of fact for the jury”).
Stilts are considered the equivalent of a “safety device” under the statute.
Miller v. C.O. Falter Construction Corp., 226 AD2d 1110 (4th Dept. 1996). The
fact that a plaintiff is injured while using one safety device provided by defendant
does not mean, as a matter of law, that defendant should have provided another,
different safety device. Weinberg, 48 AD2d at 917 (plaintiff’s claim that he would
not have fallen and become injured if defendant had provided another, different
30
safety device was rejected by the court as “speculative [citation omitted] and
unsupported, and insufficient to defeat summary judgment” for defendant).
Here, plaintiff was allegedly injured after slipping on a patch of ice on a
ground level floor (R.854). There has been no allegation that the stilts were
defective in any way (R.854). Any allegation that a different safety device would
have prevented plaintiff from slipping on the ice is pure speculation and serves
only to demonstrate that plaintiff was injured as a result of a risk that was entirely
different from the risk that the safety devices contemplated in Labor Law §240(1)
are supposed to protect against.
Moreover, plaintiff has testified that he would not have used any other
devices, such as a scaffold or a ladder for this job, and that he had “everything
necessary for the job” (R.855). This is corroborated by the other two workers
present that day as well as the supervisor, Hilliker (R.855). Accordingly, since the
stilts were not defective, whether defendants should have provided any additional
safety devices is, at the very least, an issue of fact that precludes summary
judgment for plaintiff.
31
B. There Is a Triable Issue of Fact Whether Defendants’
Purported Violation of Labor Law §240(1) Was a
Proximate Cause of Plaintiff’s Injuries or Whether
Plaintiff’s Actions Were the Sole Proximate Cause of Those
Injuries.
Assuming, arguendo, that there was a violation of section 240(1), plaintiff
must still show that the violation was “a contributing cause of his fall.” Blake, 1
NY3d at 289; Duda v. John W. Rouse Construction Corp., 32 NY2d 405, 410
(1973) (“[v]iolation of the statute, alone, is not enough; plaintiff was obligated to
show that the violation was a contributing cause of his fall”); Hajderlli v. Wiljohn
59 LLC, 71 AD3d 416 (1st Dept. 2010) (proximate cause was not established
where plaintiff’s use of the ladder was not what caused him to fall when his
supervisor, not knowing that plaintiff was on the ladder, pulled it away). Where
plaintiff’s own conduct was the sole proximate cause of the accident, no liability
under section 240(1) can attach. Blake, 1 NY3d at 290.
Where “a reasonable jury could [conclude] that plaintiff’s actions were the
sole proximate cause of his injuries,” the issue of liability cannot be decided as a
matter of law, but must go to the jury. Weininger v. Hagedorn & Co., 91 NY2d
958, 960 (1998). A defendant’s presentation of evidence that the worker was
injured while engaged in an activity that she had been expressly warned against
created an issue of fact whether she was a recalcitrant worker and, if so, whether
her actions were the sole proximate cause of her injuries, precluding summary
32
judgment. Andrews v. Ryan Homes, Inc., 27 AD3d 1197, 1198 (4th Dept. 2006);
see also Thome v. Benchmark Main Transit Assocs., LLC, 86 AD3d 938, 939-940
(4th Dept. 2011) (defendants raised a triable issue of fact as to proximate cause
where they “submitted evidence that plaintiff was aware that holes had been cut
into the concrete floor of the building in which he was working and that, on the
morning of his accident, plaintiff had been specifically directed not to operate the
scissor lift in the area where the holes had been cut”).
Here, in his deposition testimony, supervisor Hilliker states that he
specifically told plaintiff to “not insulate the area” where there was ice, and that he
issued this instruction not more than fifteen minutes before plaintiff fell (R.856).
Plaintiff testified that he saw the ice on the floor, was concerned for his own safety
and discussed this concern with Hilliker (R.856). Nevertheless, plaintiff went to
work in the icy area that, approximately fifteen minutes earlier, he was told not to
insulate, slipped on the ice and fell (R.856).
This Court held in Quattrochi v. F.J. Sciame Const. Co., 11 NY3d 757, 758
(2008), that triable issues of fact precluded summary judgment on plaintiff’s Labor
Law §240(1) claim, including whether falling planks were adequately secured over
an open door and whether plaintiff caused the accident by jostling the doors “after
disregarding a warning not to enter the doorway area.”
33
Here, plaintiff’s knowledge of the separate hazard and his failure to obey
instructions create the possibility that a reasonable jury could conclude that
plaintiff was a recalcitrant worker and that his actions were the sole proximate
cause of his injury; if plaintiff had obeyed his supervisor’s instruction to not
insulate the area where there was ice, he would not have slipped on the ice.
Accordingly, under Weininger, Quattrochi, Thome and Andrews, this issue cannot
be decided as a matter of law but must go to the jury.
Plaintiff cites several cases as authority for the proposition that the non-
delegable duty of section 240(1) “is not met merely by providing safety
instructions” (R.877-880). This point was never in dispute. Plaintiff was provided
with stilts, a safety device under the statute. See Miller, 226 AD2d 1110. The
stilts protected plaintiff from the risk that arose from the elevation differential –
they were never intended to protect him from the risk of ice at ground level.
Plaintiff cites Jiminez v. Nidus Corp., 288 AD2d 123 (1st Dept. 2001), but this
case in not applicable to the situation at bar because in that case it was undisputed
that no safety device was provided. In this instance, the safety directive by Hilliker
was in addition to, and not a substitute for, the appropriate equipment provided to
plaintiff for his work at an elevated height.
Plaintiff argues that Hilliker’s “self-serving statement” and the denial of
same by plaintiff and his co-workers is insufficient to raise a question of fact. It
34
bears noting, however, that neither Hilliker nor his employer is a party to this
action who can be held accountable for what happened. It also bears noting that
Grzeskowiak, who plaintiff argues specifically denied receiving any warning from
Hilliker, also denied that Hilliker was even there that day (R.459), contrary to the
sworn testimony of plaintiff and his other co-worker, Ellsworth; and Ellsworth
doesn’t even recall there being any ice on the floor (R.690).
Issues of credibility of all four witnesses, including plaintiff, abound in this
case, even about matters for which there should be no dispute (R.858-859) and,
hence, plaintiff’s dismissiveness of Hilliker’s sworn testimony is unwarranted.
C. The Absence of an Instruction to Plaintiff Not to Insulate
the Area Where There Was Ice on the Floor Wouldn’t
Necessarily Preclude the “Sole Proximate Cause” Defense if
Plaintiff Misused the Stilts Anyhow.
Hilliker’s instruction to plaintiff not to insulate the area where there is ice on
the floor simply underscores plaintiff’s negligent misuse of stilts by entering an
area already known to him to be slippery because of ice on the floor.
It was a common and accepted practice to use stilts for the work that he was
doing, and the stilts were a safe and appropriate device for that work, as long as
plaintiff didn’t misuse them by entering an area that he knew might be slippery
from ice on the floor.
This case is factually indistinguishable from Blake, in which the plaintiff
was provided a proper safety device – an extension ladder – which like the
35
plaintiff’s stilts, did not have any defect, but failed to protect him due solely to
plaintiff’s own negligence in using it:
At trial, plaintiff again conceded that he could not
identify a defect in the ladder, that it was stable and there
was no reason to have it steadied during use. He also
revealed that he was not sure if he had locked the
extension clips in place before ascending the rungs. At
the close of the case, the court asked the jury to indicate
on the verdict sheet whether NHS had “the authority to
direct, supervise and control Mr. Blake’s work” at the
residence. The jury answered yes. In response to the
second inquiry (“Was the ladder being used by plaintiff
Rupert Blake so constructed, operated as to give proper
protection to plaintiff?”), the jury again said yes, leading
to the inescapable conclusion that the accident happened
not because the ladder malfunctioned or was defective or
improperly placed, but solely because of plaintiff’s own
negligence in the way he used it.
Blake, 1 NY3d at 284.
Similarly, in this case, there is a factual issue as to whether plaintiff’s injury
was caused not by some inadequacy of the stilts, but whether it was solely
attributable to the manner in which plaintiff used them in an area that he could and
should have avoided, had he been using due care for his own safety.
CONCLUSION
Plaintiff’s accident falls outside the scope of Labor Law §240(1) because the
accident was not the result of an elevation-related risk but, rather, it was the result
of a separate and unrelated hazard, namely, ice on the floor.
36
Even if Supreme Court properly concluded that plaintiff’s fall was the result
of an elevation-related risk for which Labor Law §240(1) provides protection, then
there is still a triable issue of fact whether plaintiff’s actions were the sole
proximate cause of his injuries.
The Respondent-Appellant, Winter-Pfohl, Inc., therefore requests that this
Court reaffirm its reasoning in Melber and dismiss plaintiff’s cause of action under
Labor Law §240(1) or, in the alternative, that it affirm the holding of the
intermediate appellate court that there is a triable issue of fact whether plaintiff’s
actions were the sole proximate cause of his injuries.
DATED: Buffalo, New York
May 20, 2014
Respectfully submitted,
KENNEY SHELTON LIPTAK NOWAK LLP
Robert D. Leary, Esq.
37