STATE OF NEW YORK
To be Argued by:
ROBERT D. LEARY, ESQ.
Estimated Time for Argument:
(15 Minutes)
~upremt Q.Tnurt
APPELLATE DIVISION-FOURTH JUDICIAL DEPARTMENT
MARC A. NICOMETI,
Plaintiff-Respondent,
vs.
THE VINEYARDS OF FREDONIA, LLC, WINTER-PFOHL, INC.,
Defendants-Appellants,
THOMAS WHITNEY AND SCOTT PFOHL,
Erie County Index No. 2008-3306.
-()--
SCOTT PFOHL,
WINTER-PFOHL, INC.,
Defendants.
Third-Party Plaintiff,
Third-Party Plaintiff-Appellant,
vs.
WESTERN NEW YORK PLUMBING-ELLICOTT PLUMBING AND
REMODELING CO., INC.,
Third-Party Defendant-Appellant.
Erie County Index No.: 2008-3306-TP3.
BRIEF FOR DEFENDANT-APPELLANT/
THIRD-PARTY PLAINTIFF-APPELLANT
ROBERT D. LEARY, ESQ.
Of Counsel.
KENNEY SHELTON LIPTAK
NOWAKLLP
Attorneys for Defendant-Appellant/
Third-Party Plaintiff-Appellant
Winter-Pfohl, Inc. and Defendant/
Third Party Plaintiff Scott Pfohl
The Calumet Building
233 Franklin Street
Buffalo, New York 14202
Telephone: (716) 853-3801
BATAVIA LEGAL PRINTING, INC.- Telephone (866) 768-2100
TABLE OF CONTENTS
PAGE
TABLE OF CITATIONS .............................................................................................. ii
QUESTIONS PRESENTED WITH ANSWERS OF COURT BELOW .................................... 1
PRELIMINARY STATEMENT ..................................................................................... 2
STATEMENT OF FACTS ...................................................................................................... 3
ARGUMENT ............................................................................................................ 7
POINT 1- LABOR LAW§ 240(1) DOES NOT EXTEND TO PROTECTING
WORKERS AGAINST THE HAZARD OF SLIPPING ON ICE ............... 7
A. PLAINTIFF'S INJURY WAS UNDISPUTEDL Y CAUSED
BY ICE, A HAZARD NOT CONTEMPLATED BY
LABOR LAW§ 240(1) ........................................................ 7
B. STILTS ARE A SAFETY DEVICE THAT ARE NOT
DESIGNED TO PROTECT PLAINTIFF FROM SLIPPING
ON ICE .......................................................................... 12
POINT II- IF LABOR LAW 240(1) DOES APPLY, THEN MATERIAL
ISSUES OF FACT PRECLUDE SUMMARY JUDGMENT FOR
PLAINTIFF ................................................................................ 13
A. WHETHER THERE WAS A VIOLATION OF SECTION
240(1) IS A QUESTION OF FACT ............................................ 13
B. WHETHER DEFENDANTS' PURPORTED VIOLATION
OF THE STATUTE WAS THE PROXIMATE CAUSE OF
PLAINTIFF'S INJURIES IS A QUESTION OF FACT ..................... 15
C. THE DIFFERENCE BETWEEN PLAINTIFF'S MEDICAL
PAPERWORK AND TESTIMONY CREATES A QUESTION
OF FACT ............................................................................ 17
D. THERE ARE TOO MANY DISCREPANCIES IN THE
WITNESSES' TESTIMONY TO DECIDE LIABILITY
AS A MATTER OF LAW ......................................................... 18
E. CASES CITED BY PLAINTIFF DO NOT SUPPORT
THE GRANT OF SUMMARY JUDGMENT TO PLAINTIFF
PURSUANT TO LABOR LAW§ 240(1) ..................................... 19
CONCLUSION ....................................................................................................... 21
TABLE OF CITATIONS
Page(s)
CASES
Alligood v. Hospitality West, LLC,
8 Ad3d 1102 (4th Dept. 2004) ............................................................................ 20
Andrews v. Ryan Homes, Inc.,
27 AD3d 1197 (4th Dept. 2006) .................................................................... 15,16
Arigo v. Spencer,
39 AD3d 1143 (4th Dept. 2007) .................................................................... 14,20
Arnold v. Baldwin Real Estate Corp.,
63 Ad3d 1621 (4th Dept. 2009) .......................................................................... 20
Blake v. Neighborhood Housing Services of New York City, Inc.,
1 NY 3d 280 (2003) .................................................................................... 13,15
Briggs v. Halterman,
267 AD2d 7 53 (3d Dept. 1999) ......................................................................... 17
Buckley v. J.A. Jones/GMO,
38 AD 3d 461 ( 1 st Dept. 2007) .......................................................................... 17
Cohen v. Memorial Sloan-Kettering Cancer Center,
11 NY3d 823 (2008) .................................................................................... 2, 11
Doan v. Aiken & MeG/auk/in, Inc.,
217 AD2d 908 (4th Dept. 1995) ........................................................................ 18
Dud a v. John W Rouse Construction Corp.,
32 NY2d 405 (1973) ....................................................................................... 15
Hajderlli v. Wiljohn 59 LLC,
71 AD3d 416 (1st Dept. 2010) .......................................................................... 15
Jiminez v. Nidus Corp.,
288 AD2d 123 (1st Dept. 2001) ........................................................................ 16
Klein v. City of New York,
89 NY2d 833 (1996) ........................................................................................ 20
Krieger v. PAT Construction, Inc.,
112 AD2d 10 (4th Dept. 1985) ........................................................................... 19
Loveless v. American Ref-fuel of Niagara, LP,
299 AD2d 819, (4th Dept. 2002) ........................................................................ 21
Macutek v. Lansing,
226 Ad2d 964 (3d Dept. 1996) ......................................................................... 18
Matos v. Garden State Brick Face of Middle Vi/., Inc.,
272 AD2d 70 (1st Dept. 2000) ........................................................................ 9,18
McNabb v. Oat Bros., Inc.,
64AD3d 1237 (4th Dept. 2009) ..................................................................... 10,12
Melber v. 6333 Main St., Inc.,
91 NY2d 759 (1998) ............................................................................. 8,9,10,12
Miller v. C.O. Falter Construction Corp.,
226AD2d 1110 (4th Dept.1996) .................................................................. 14,16
Narducci v. Manhasset Bay Assocs.,
96 NY2d 259 (2001) ................................................................................. 7,9,12
Nelson v. Shaner Cable, Inc.,
2 AD3d 1371 (4th Dept. 2003) .......................................................................... 19
ii
Nieves v. Five Bora Air Conditioning & Refrigeration Corp.,
93 NY2d 914 (1999) ....................................................................................... 11
Primavera v. Benderson Family 1968 Trust,
294 AD2d 923 (4th Dept. 2002) ........................................................................ 11
Rocovich v. Consolidated Edison Co.,
78 NY2d 509 (1991) ..................................................................................... 7,12
Ross v. Curtis-Palmer Hydro-E/ec. Co.,
81 NY2d 494 (1993) ..................................................................................... 7,12
Russell v. Widewaters South Bay Road Assocs., LLP,
289 AD2d 1025 (4th Dept. 2001) ................................................................ 8,10,12
Taglioni v. Harbor Cove Assocs.,
308 AD2d 441 (2d Dept. 2003) ........................................................................ 14
Thome v. Benchmark Main Transit Assocs., LLC,
86 AD3d 938 (4th Dept. 2011) ..................................................................... 15,16
Weinberg v. Alpine Improvements, LLC,
48 AD 3d 915 (3d Dept. 2008) ....................................................................... 13, 14
Weininger v. Hagedorn & Co.,
91 NY2d 958 (1998) .................................................................................. 15,16
Whalen v. ExxonMobil Oil Corp.,
50 AD3d 1553 (4th Dept. 2008) .................................................................... 19,20
Wilinski v. 334 East 92nd Housing De vel. Fund Corp.,
18 NY 3d 1 (2011) .......................................................................................... 20
iii
QUESTIONS PRESENTED
WITH ANSWERS OF COURT BELOW
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?
The defendants maintain that the hazard of an icy floor is not a
condition contemplated by Labor Law §240(1),_ since it is not an
elevation-related risk; however, the Supreme Court held
otherwise.
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?
The Supreme Court held that defendants did not raise questions
of fact sufficient to preclude summary judgment as to the issue of
liability against the defendants.
1
PRELIMINARY STATEMENT
Plaintiff commenced this Labor Law and common law negligence action seeking
damages for injuries he sustained while working on stilts. Plaintiff was allegedly installing
insulation between the ceiling joists of an apartment and was injured when he slipped on ice
and fell onto the floor. Plaintiff thereafter moved for partial summary judgment on liability under
Labor Law §240(1), and defendants, Scott Pfohl ("Pfohl") and Winter-Pfohl, Inc. ("Winter-Pfohl"),
cross-moved for summary judgment dismissing the Labor Law §240(1) claim and for summary
judgment dismissing all claims against Pfohl, individually. Supreme Court, 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 takes no appeal.
The Court erred in granting plaintiff's motion and in denying the cross-motion of Pfohl
and Winter-Pfohl for summary judgment dismissing the Labor Law §240(1) claim. 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 the safety device in the first place. Cohen v. Memorial Sloan-
Kettering Cancer Center, 11 NY3d 823, 825 (2008). Here, the presence of ice on the floor of
the apartment was not the risk which brought about the need for the stilts in the first instance,
and the accident was not the result of the type of hazard that the use or placement of the safety
devices enumerated 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.
2
STATEMENT OF FACTS
Defendant, Thomas Whitney ("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 as its general
contractor to construct the buildings (R.340) and Winter-Pfohl hired 84 Lumber to, inter alia,
install insulation (R.405). Plaintiff, 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).
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 (165-166) and said that he was
using a hammer-tacker to affix the insulation in place (R.191 ,200). Plaintiff had never used a
ladder to install insulation (R.179) and had used a scaffold only once, inside a very large church
(R.287-288), but 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 the safety of
working on stilts in an icy area and that he expressed his concern to Hilliker (R.151 ,281 ,290)
who, according to plaintiff, had arrived at the site about an hour before the accident (R.318) and
told someone, whom plaintiff believed to be a contractor, to take care of the ice (R.157 -158).
3
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 by two to 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 get up (R.201-202). He thought that Grzeskowiak
had been using a ladder to pack window insulation, but plaintiff did not know 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 (R.198-199).
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).
Hilliker's Sworn Testimony
Hilliker testified that he arrived at the work site about fifteen minutes before plaintiff's
accident (R.585-586). He said that he was not aware of anyone from the other trades inside the
building that morning, and that he did not speak to anyone except for his three workers (R.589).
He saw that there was ice on the floor inside the building (R.587) and said that he warned the
workers about the ice and specifically told them not to insulate that area (R.589).
According to Hilliker, plaintiff was elevated on stilts by about eighteen inches (R.57 4,
628) and using his hands, not a hammer-tacker, to install friction-fit insulation in the ceiling
(R.577). He said that scaffolding was only used for higher ceilings and that a ladder or
scaffolding was not needed for this insulation installation project (R.547-548).
Hilliker claims that he was in the doorway of the room where plaintiff was working alone,
and that he had started to approach plaintiff to tell him to get out of that icy area, when plaintiff
slipped and fell onto a bag of insulation (R.572-574,591-592).
4
He said that plaintiff took off his own stilts before he stood up and walked around (R.583)
and that, thereafter, he drove plaintiff back to the 84 Lumber store in Hilliker's car (R.586,
597,620).
Grzeskowiak's Sworn Testimony
Grzeskowiak, like plaintiff, testified that the three of them, including Ellsworth, rode to the
job site, together, in the company van (R.449). He also 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 "everywhere" 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 them about ice on that morning (R.461-462,525), believing
that Hilliker wasn't at the work site that day before plaintiff's accident (R.459,469,505), nor at the
time of the accident (R.495).
Contrary to plaintiff's testimony, but consistent with the testimony of Hilliker,
Grzeskowiak recalls that plaintiff was on stilts and using his hands, not a hammer-tacker, to
install friction-fit insulation in the ceiling (R.503).
Grzeskowiak testified that he, himself, was working on stilts elevated about three feet,
and only four feet away from plaintiff, doing the exact same work as plaintiff (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 to the testimony of plaintiff and Hilliker, he said that plaintiff fell on
his butt, onto the bare concrete, and not onto a bag of insulation (R.479).
Grzeskowiak claims that there was no one else, including Ellsworth and Hilliker, in the
room, at the time of the accident (R.479,495,505), and that after the accident he undid his own
stilts before picking up plaintiff and removing plaintiff's stilts (R.478-479). Grzeskowiak believes
that plaintiff was picked up from the job site by plaintiff's uncle, because Grzeskowiak
recognized the vehicle (R.484-485).
5
Grzeskowiak testified that he usually used either stilts or a scaffold for insulation
installation, but that he only used a scaffold for twenty foot high ceilings and rarely used a ladder
(R.444-445). He said that he would not have used a ladder or a scaffold for this insulation
installation project (R.504).
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 a couple of hours after they had begun working (R.673).
Ellsworth did not see any ice on the floor inside the building that morning (R.690-691),
and he doesn't recall Hilliker warning them about any ice on the floor (R.727).
According to Ellsworth, plaintiff was on stilts and using his hands, not a hammer-tacker,
to install friction-fit insulation in the ceiling (R.670). Ellsworth was working in the garage and did
not see plaintiff fall (R.679). He heard plaintiff fall and when Ellsworth turned his head to see
what had happened, he saw plaintiff through the bare wall joists, lying on top of a bag of
insulation onto which he had fallen (R.679-680,683-684,687).
Ellsworth saw only one other person by plaintiff after he fell, and did not go over to
plaintiff (R.686), but saw plaintiff take off his own stilts and walk away (R.685-686, 712,731 ).
Ellsworth said that he rarely used a ladder for insulation installation (R.658).
Plaintiff's Medical Records
A HealthWorks form signed by plaintiff and dated a day after the accident states, in his
handwriting:
I was walking around on stilts elevated 1 0 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).
6
Dr. Capicotto's records dated March 16, 2006, state:
I.
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).
ARGUMENT
POINT I
LABOR LAW§ 240(1) DOES NOT EXTEND TO PROTECTING
WORKERS AGAINST THE HAZARD OF SLIPPING ON ICE
Not every fall by every worker at a construction site triggers the extraordinary protections
of Labor Law§ 240(1). 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-Eiec. Co., 81 NY2d 494, 501 (1993). Here, neither requirement for
the application of Labor Law § 240(1) can be satisfied, and so this Court should dismiss
plaintiff's section 240(1) claim.
A. Plaintiff's Injury Was Undisputedly Caused by Ice, a Hazard Not
Contemplated by Labor Law§ 240(1)
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).
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 .... " 19.:, 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
7
are caused by the absence of an adequate scaffold or other required safety device. Ross, 81
NY2d at 500.
In a case almost exactly on point, this Court affirmed the dismissal of a 240(1) claim by a
worker who was injured when he tripped over an electrical cord while working on stilts, holding
that the worker had not "encounter[ed] a hazard contemplated by [Labor Law § 240(1 )]."
Russell v. Widewaters South Bay Road Assocs., LLP, 289 AD2d 1025 (4th Dept. 2001 ), citing
Melber v. 6333 Main St., Inc., 91 NY2d 759, 761 (1998).
Here, plaintiff fell when he encountered ice on the floor, and there is no dispute about
that fact (R.850). Ice on the floor, like an electrical cord on the floor, is not a hazard
contemplated by Labor Law§ 240(1).
Melber likewise governs this situation. There, the Court of Appeals agreed 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 )."' Melber, 91 NY2d at 761.
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.
kL. at 763. Likewise, ice on the floor is a hazard in the workplace against which
employees should be protected. However, the risk of slipping on ice is not a risk that can be
avoided by proper placement or utilization of one of the devices listed in Labor Law § 240(1 ).
8
The protective equipment envisioned by the statute is simply not designed to avert the hazard
plaintiff encountered here - slipping and falling on ice.
This situation does not present a case of 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." !Q. 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.
Plaintiff's reliance on Matos v. Garden State Brick Face of Middle Vii., 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:
in full:
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).
This abbreviated quote from Melber is taken out of context from a passage which reads
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 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
9
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-Eiec. Co., 81 NY2d, at 501, supra, quoting
Ross v. Curtis-Palmer Hydro-Eiec. 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
which might have, otherwise, implicated Labor Law §240(1). Instead, plaintiff claims that his
stilts 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" .kl
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.
Oat Bros., Inc., 64 AD3d 1237 (4th Dept. 2009), which are indistinguishable from the instant
case, although in those cases the 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" (Melberv. 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" (.kl), 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 ]).
10
19.:. 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.
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. There, plaintiff fell from a ladder not because the
ladder malfunctioned but because he tripped over two unconnected pipes protruding from the
wall. 19.:. The 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." 19.:. (internal
quotations and citations omitted).
Similarly, the 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, and 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). The 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.
19.:. 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 this Court as "not the result of the hazards of
11
installing duct work at an elevation, but rather was the result of a separate and unrelated
hazard, i.e., an empty unguarded swimming pool." .!.9.:. at 924 (citations omitted).
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 because of the elevation differential between the floor and the ceiling, where his work
was located (R.851 ). This elevation created the risk that gravity alone, working directly on
plaintiff, might cause him to fall unless he was protected by some device. The stilts were the
device that protected him and prevented him from falling during the entire time of his
performance of his job - until he reached the ice on the floor (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 ).
Accordingly, plaintiff's Labor Law§ 240(1) claim should be dismissed.
B. Stilts Are A Safety Device That Are Not Designed to Protect Plaintiff from
Slipping on Ice
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. .!.9.:. 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. .!.9.:. at 269.
12
Here, plaintiff claims 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 elevated position, which is an entirely different risk than the risk that actually injured him -
slipping on an icy surface.
II.
POINT II
IF LABOR LAW 240{1) DOES APPLY, THEN MATERIAL ISSUES
OF FACT PRECLUDE SUMMARY JUDGMENT FOR PLAINTIFF
If this Court determines that Labor Law§ 240(1) does apply to this action, then there are
several material issues of fact that preclude summary judgment in favor of plaintiff. Moreover,
there are so many discrepancies in the testimony of the various witnesses to the circumstances
surrounding the incident that, in order to come to a reasonable conclusion, the fact-finder must
examine all testimony and determine the credibility of each witness, including plaintiff.
A. Whether There Was A Violation of Section 240{1) Is a Question of Fact
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 plaintiff and that failure proximately causes plaintiff's injury . .!9.:.
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 substance on his boots when he slipped and fell off a ladder, and
13
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 to 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 safety device was rejected by the court as "speculative [citation omitted] and
unsupported, and insufficient to defeat summary judgment" for defendant).
Here, plaintiff was injured after falling from his stilts only after they came into contact with
ice on the 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).
14
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.
B. Whether Defendants' Purported Violation of the Statute Was the
Proximate Cause of Plaintiff's Injuries Is a Question of Fact.
Assuming, arguendo, that there has been 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, her actions were the sole proximate cause of her injuries, precluding summary judgment.
Andrews v. Ryan Homes. Inc., 27 AD3d at 1198; 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
15
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 a mere
fifteen minutes before plaintiff fell (R.856). Plaintiff testified that he saw the ice on the floor, was
concerned for his own safety in working in the icy area and discussed this concern with Hilliker
(R.856). Nevertheless, plaintiff went into the icy area to work, where he had been directed not
to work fifteen minutes previously, slipped on the ice and fell (R.856). 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 avoid the icy
area, he could not have slipped on the ice. Accordingly, under Thome, Andrews and Weininger,
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. Plaintiff was also instructed to stay out of the icy area by his supervisor, Hilliker,
it can hardly be argued that this testimony is self-serving, because neither Hilliker nor his
employer, 84 Lumber, are parties to this action. In any event, self-serving or not, Hilliker's
testimony creates an issue of fact as to whether plaintiff was a recalcitrant worker.
16
C. The Difference between Plaintiff's Medical Paperwork and Testimony
Creates a Question of Fact
In a situation where a worker injured in a fall was provided with a safety device, there is
a question of fact for the jury where plaintiff himself has given differing versions of the events at
issue. Briggs v. Halterman, 267 AD2d 753, 754 (3d Dept. 1999). In Briggs, the plaintiff
completed medical paperwork soon after his accident that gave a different account of the
accident than his sworn testimony. .!.9.:. The court found that this difference, among others,
created "questions of fact concerning the circumstances surrounding plaintiff's accident," such
that the grant of summary judgment was not proper. .!.9.:. at 755. See a/so 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, the issue of fact is plain. One day after the accident, plaintiff wrote an account of
the accident in his own handwriting, which he also signed, that implies that he was not installing
insulation at the time of the accident but states that he was "walking around":
I was walking around on stilts elevated 1 0 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
account was given on January 27, 2006, the day after the accident. 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). Consistent with this earlier version is
his surgeon's report of March 18, 2006, dated only two months after the accident, that likewise
casts doubt on 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.
17
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 proved true, then plaintiff was
not actually engaged in work at a height at the time of the fall. So, even if credence is given to
this distinction made by the First Department in Matos, there would be no liability under section
240(1 ). 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 fetching a bag of insulation. This issue of fact precludes summary
judgment, assuming that section 240(1) is even found to apply to the 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 to remain unrefuted throughout the medical records and
deposition testimony.
D. There Are Too Many Discrepancies in the Witnesses' Testimony
To Decide Liability as a Matter of Law
Summary judgment is not appropriate where contradictions between the testimony of
plaintiff and a co-worker create a question of fact with respect to the occurrence of the accident.
Dean v. Aiken & McGiauklin, Inc., 217 AD2d 908 (4th Dept.1995); Macutek v. Lansing, 226
Ad2d 964, 965 (3d Dept.1996) ("where the plaintiff's version of the accident is inconsistent with
either his own previous account or that of another witness, a triable issue of fact may be
presented").
Here, so numerous are the discrepancies among the four witnesses' accounts of the
circumstances of the day of the accident that it is impossible at this juncture to determine
exactly what happened that day - other than the fact that plaintiff slipped on the ice. The four
witnesses cannot agree on the following (R.858):
• how they arrived at the work site that day;
• whether the supervisor was present at the work site;
18
• what other trades were present that morning;
• what was said by and to the supervisor;
• how high the stilts elevated their wearers;
• what kind of insulation plaintiff was using (whether it required the
use of a hammer-tacker or was friction-fit);
• who was in the room with plaintiff at the time of the accident;
• how plaintiff fell;
• whether plaintiff took his own stilts off after the fall
• who helped him up; and
• how plaintiff got from the job site back to the 84 Lumber store.
The fact that there can be so much dispute about what should be straightforward facts of
the case casts doubt on the credibility of all four witnesses. It should be up to the fact-finder to
examine the testimony of each witness and determine whose version of the facts of that day is
most credible.
The only issue upon which there is no dispute whatsoever is that plaintiff fell because he
slipped on the ice (R.859). This is why Winter-Pfohl is able to ask for summary judgment on the
issue of whether Labor Law§ 240(1) applies to this accident, and at the same time is able to
maintain that, if the statute does apply, there are too many issues of fact to allow for summary
judgment as to defendants' liability pursuant to the statute.
E. Cases Cited by Plaintiff Do Not Support the Grant of Summary Judgment to
Plaintiff Pursuant to Labor Law §240(1)
The cases, cited by plaintiff in his Memorandum of Law to the court below, stand for
issues that are not present in the case before this Court: the stilts did not break or fail as was
the case in Whalen v. ExxonMobil Oil Corp., 50 AD3d 1553 (4th Dept. 2008); and this is not a
case of no safety device having been provided, as in Nelson v. Shaner Cable, Inc., 2 AD3d
1371 (4th Dept. 2003) and Krieger v. PAT Construction. Inc., 112 AD2d 10 (4th Dept. 1985),
since stilts are a safety device under New York law (see Point II-A above).
19
Plaintiff also cited several other cases (Alligood v. Hospitality West. LLC, 8 Ad3d 1102
[4th Dept. 2004]; Arigo, 39 Ad3d 1143 [4th Dept. 2007]; Arnold v. Baldwin Real Estate Corp, 63
Ad3d 1621 [4th Dept. 2009]; Klein v. City of New York, 89 NY2d 833 [1996]; Whalen, 50 Ad3d
1553) in a Reply Affirmation (R.871), regarding the placement of ladders and scaffolds, and
argued that the placement of stilts is no different. This argument does not, however, bear up
under any scrutiny. Plaintiff pointed out that a ladder or scaffold that moves, falls or collapses,
causing the worker injury, gives rise to a prima facie violation of section 240, and stated that the
same is true for stilts (R.876). This argument ignores the inherent difference between a ladder
and stilts: a ladder is not intended to move during use, whereas stilts are used in order to allow
the worker to move.
Klein v. City of New York, 89 NY2d 833 (1996), cited by the lower court in support of its
decision, is inapposite; it, too, involves improper placement of a ladder, and it would make no
sense to speak of the proper placement of stilts. To impose liability because the stilts moved,
when that is the reason for using stilts, would be illogical. See Wilinski v. 334 East 92nd
Housing De vel. Fund Corp., 18 NY 3d 1, 11 (2011) (the court would not impose liability "for
failure to 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"). Moreover, for a supervisor to
accompany a worker on stilts, approving the placement of every step, would be manifestly
illogical.
20
CONCLUSION
A plaintiff must, in order to win summary judgment as to liability under section 240, show
that there was a defect in the safety device used ·or that the absence of another safety device
was a proximate cause of the accident. Loveless v. American Ref-fuel of Niagara, LP, 299
AD2d 819 (4th Dept. 2002). Here, plaintiff has admitted that there was no defect in the stilts.
The accident was caused by his slipping and falling on ice, and the absence of scaffolding,
hoi.sts, stays, ladders, slings, hangers, blocks, pulleys, braces, irons or ropes was not a
proximate cause of the accident. Ice is simply not a risk these devices are intended to protect
against.
DATED: Buffalo, New York
October 17, 2012
21
Robert D. Leary, Esq.
KENNEY SHELTON LIPTAK N
Attorneys for Defendant-Appellant
Winter-Pfohl, Inc., and
Defendant Scott Pfohl
The Calumet Building
233 Franklin Street
Buffalo, New York 14202
(716) 853-3801