Decided and Entered: January 2, 2003.
Appeal from a judgment of the Supreme Court (Demarest, J.), entered November 19, 2001 in St. Lawrence County, upon a verdict rendered in favor of plaintiff.
Horigan, Horigan, Lombardo Kelly, Amsterdam (Krishna K. Singh of counsel), for third-party defendant-appellant.
Carter, Conboy, Case, Blackmore, Napierski Maloney, Albany (Matthew W. Naparty of Mauro, Goldberg Lilling, Great Neck, of counsel), for Little Rapids Corporation and another, defendants and third-party plaintiffs-appellants.
Law Offices of John E. Mellon, Ogdensburg (John E. Mellon of counsel), for appellant.
Preston C. Carlisle P.C., Ogdensburg (Timothy J. Perry of Sugarman Law Firm L.L.P., Syracuse, of counsel), for respondent.
Before: Cardona, P.J., Peters, Spain, Mugglin and Lahtinen, JJ.
MEMORANDUM AND ORDER
Plaintiff sustained injuries in a work-related accident while employed by third-party defendant, MRL Constructors of New York, Ltd., on a construction excavation project at a paper factory owned by defendant Little Rapids Corporation (hereinafter LRC). LRC had hired as the general contractor on the project defendant Laframboise Group, Ltd., which had subcontracted a portion of the work to MRL, plaintiff's employer. At the time of the accident, plaintiff was standing on top of a rock or boulder jackhammering it in order to break it down and remove it from an area under excavation in a section of the basement floor in the paper factory. Plaintiff fell from the boulder, injuring his back, right knee and ankle. Plaintiff commenced an action against LRC and defendant Potsdam Paper Corporation, premised upon Labor Law § 240(1) and other claims. Plaintiff then commenced an action against Laframboise, which was later consolidated with his action against LRC and Potsdam. LRC and Potsdam filed a third-party claim against MRL for indemnification and, inter alia, Laframboise sought indemnification from MRL as well. Following discovery, plaintiff moved for summary judgment on his Labor Law § 240(1) claim and LRC and Laframboise (hereinafter collectively referred to as defendants) cross-moved for summary judgment dismissing plaintiff's complaint; defendants also moved against one another on their indemnification claims. Supreme Court denied all of these motions.
At the first jury trial, plaintiff proceeded solely on his Labor Law § 240(1) cause of action and, at the close of proof, Supreme Court directed a verdict in plaintiff's favor. After a trial on damages, a judgment was entered against LRC and Laframboise. The court also determined that LRC was entitled to indemnification from Laframboise and MRL and, by later judgment, that Laframboise was entitled to indemnification from MRL.
On appeal, this Court determined that a directed verdict should not have been entered in plaintiff's favor and, accordingly, that defendants were entitled to a new trial on the issue of liability under Labor Law § 240(1), reasoning that materially conflicting trial testimony had been presented regarding the extent of plaintiff's fall, i.e., regarding the extent of the elevation differential between the top of the boulder where plaintiff was standing — while jackhammering it — and the excavated hardpan surface to which he fell ( 268 A.D.2d 712, amended 275 A.D.2d 565) (hereinafter Amo I). While noting that there is no bright-line numerical test to determine the sufficiency of an elevation differential for purposes of imposing liability under Labor Law § 240(1) (id. at 717), we remitted the matter for a new trial for a jury to resolve the disputed, critical factual issue presented by the testimony as to the extent of plaintiff's fall (id. at 716-718), and for the court to thereafter determine as a matter of law — based on that jury finding — whether the work surface was sufficiently elevated so as to fit within the intended protective scope of Labor Law § 240 (1) (id. at 718). In an amended decision/order, those portions of the judgments awarding indemnification were also reversed by this Court, while the damages award was not disturbed ( 275 A.D.2d 565).
After a second trial, the jury returned a special verdict finding that the height differential from the top of the boulder upon which plaintiff was working to the excavated surface below was 15 inches and that he fell a total of 16 inches from the top of the boulder. Based upon these facts as established by the jury's special verdict, Supreme Court then ruled, as a matter of law, that plaintiff's injuries resulted from the type of elevation-related risk protected by Labor Law § 240(1) and plaintiff was entitled to judgment in his favor on this claim (2001 N.Y. Slip Op 40289 [U]). A judgment was thereafter entered, inter alia, awarding plaintiff $629,945 with costs — the amount determined following the trial on damages — from LRC and Laframboise, and ordered MRL to indemnify defendants. On appeals by defendants and MRL, we affirm.
When Supreme Court inquired, the foreperson explained that the jury's finding that the extent of plaintiff's fall exceeded the elevation differential was attributable to taking into consideration that the rock sloped down into the excavation.
While Potsdam joined in LRC's notice of appeal, neither the judgment appealed from nor the prior judgment of Supreme Court entered November 24, 1998 — following a trial on damages — is against Potsdam and, accordingly, it is not an aggrieved party.
As an initial matter, we note that the testimony regarding the worksite and the injury-producing activity in which plaintiff was engaged at the time of this accident did not materially differ at the second trial. Thus, defendants' contentions that plaintiff's injury was not the result of a hazard contemplated by Labor Law § 240(1) are rejected for reasons explained at length in Amo I ( 268 A.D.2d 712, 713-718, supra). To the extent that defendants and MRL argue that plaintiff did not actuallyfall, we note that the jury by its special verdict made a factual determination that plaintiff fell 16 inches from the top of the boulder, a determination sufficiently supported by the trial testimony and which we perceive no basis upon which to disturb. Also without merit are defendants' and MRL's related contentions that the nature of plaintiff's fall — wherein plaintiff slipped while atop the boulder, his body twisted and his right foot was caught between the boulder and the adjacent hardpan trench and he fell onto his coworker sitting on the excavated hardpan and then onto the excavated surface — excludes the protections of Labor Law § 240(1) (see Gramigna v. Morse Diesel, 210 A.D.2d 115, 115-116). These same arguments were made and rejected inAmo I on essentially the same testimony.
A review of the testimony at the second trial demonstrates that plaintiff was injured while performing work which presented an elevation-related hazard in that the work required had to be performed on a work site — the boulder — which was itself elevated, and was injured in a fall from the boulder as a result of the direct effects of gravity (see Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 499-501). It is undisputed that plaintiff and his coworkers were engaged in the "alter[ation]" of this building, a protected activity (see Joblon v. Solow, 91 N.Y.2d 457, 465; see also Labor Law § 240) and that no protective devices were provided. As Amo I instructed, the only critical, determinative factual question unresolved at the first trial was the extent of plaintiff's fall ( 268 A.D.2d 712, supra). Defendants' and MRL's central contention on this appeal after the second trial is that the jury's factual determination that plaintiff fell 15 to 16 inches renders Labor Law § 240(1) inapplicable, as a matter of law. We cannot agree.
The sufficiency of an elevation differential and fall from a height for purposes of Labor Law § 240(1) liability cannot, unfortunately, be reduced to a numerical bright-line test or automatic minimum/maximum quantification and, indeed, as we recognized in Amo I ( 268 A.D.2d 712, 717, supra), the extent of the elevation differential may not, by itself, necessarily determine whether section 240(1) applies (see Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514). On one side of the spectrum, de minimis elevations involving falls at or very near ground level are insufficient (see id. at 514; 268 A.D.2d 712, 717,supra [and cases cited therein]; see also Cundy v. New York State Elec. Gas Corp., 273 A.D.2d 743, lv denied 95 N.Y.2d 766; Sousa v. American Ref-Fuel Co. of Hempstead, 258 A.D.2d 514; De Mayo v. 1000 N. of N.Y. Co., 246 A.D.2d 506; Duffy v. Bass D'Allesandro, 245 A.D.2d 333). On the other end of the spectrum, otherwise qualifying falls of several feet have been determined to be sufficiently elevated so as to fit within the intended protective scope of Labor Law § 240 (1) (see Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 561; Congi v. Niagara Frontier Transp. Auth., 294 A.D.2d 830; Gettys v. Port Auth. of N.Y. N.J., 248 A.D.2d 226; Casabianca v. Port Auth. of N.Y. N.J., 237 A.D.2d 112; De Long v. State St. Assoc., 211 A.D.2d 891; Vurchio v. Kalikow Lincoln Dev. Co., 187 A.D.2d 280; cf. Dilluvio v. City of New York, 264 A.D.2d 115, affd 95 N.Y.2d 928; Francis v. Aluminum Co. of Am., 240 A.D.2d 985; De Puy v. Sibley, Lindsay Curr Co., 225 A.D.2d 1069, 1070).
This case, involving an otherwise qualifying elevation differential of 15 to 16 inches, represents a middle ground, of sorts, in reported Labor Law § 240(1) jurisprudence and we find support for Supreme Court's conclusion that, considering all of the circumstances of this accident, this height was sufficient to present the type of elevation-related hazard protected by this statute (see Norton v. Bell Sons, 237 A.D.2d 928; Siago v. Garbade Constr. Co., 262 A.D.2d 945; Binetti v. MK W. St. Co., 239 A.D.2d 214). While, to be sure, not all gravity-related falls from 15 to 16-inch elevated work surfaces will implicate Labor Law § 240(1) protections, we agree that plaintiff's task of standing on a wet boulder at this elevation while jackhammering it in order to break it into pieces during which he experienced a gravity-related fall causing serious injury represented the type of "special hazard" that arises when a work site is itself elevated (see Ross v. Curtis-Palmer Hydro-Elec. Co., supra at 500-501; Rocovich v. Consolidated Edison Co., supra at 513-514).
Further, it was uncontroverted that no safety devices were provided to plaintiff in the performance of this task and defendants and MRL offered no proof at trial that the absence of safety devices was not the proximate cause of plaintiff's fall and injuries and, thus, as a matter of law the dictates of Labor Law § 240(1) were not satisfied by defendants and MRL (see Felker v. Corning, Inc., 90 N.Y.2d 219, 224-225;Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 524; De Long v. State St. Assoc., supra at 892). As such, defendants' and MRL's efforts to, in effect, rely on the recalcitrant worker defense are unavailing where no safety devices were provided (see Hagins v. State of New York, 81 N.Y.2d 921, 922-923; see also Gordon v. Eastern Ry. Supply, supra at 562-563; Stolt v. General Foods Corp., 81 N.Y.2d 918, 920). Defendants' and MRL's efforts to rely on comparative negligence principles or plaintiff's assumption of a risk are likewise rejected (see Stolt v. General Foods Corp., supra at 920; Bland v. Manocherian, 66 N.Y.2d 452, 459; Zimmer v. Chemung County Performing Arts, supra at 524; cf. Weininger v. Hagedorn Co., 91 N.Y.2d 958, 960).
MRL raised no arguments in its brief related to that portion of the judgment directing it to indemnify LRC and Laframboise and, thus, has abandoned that issue (see Antich v. McPartland, 293 A.D.2d 953, 953 n 1).
Defendants' and MRL's remaining contentions on appeal do not warrant disturbing the judgment.
Cardona, P.J., Peters and Lahtinen, JJ., concur.
I concur upon constraint of this Court's prior decision herein ( 268 A.D.2d 712, amended 275 A.D.2d 565).
ORDERED that the judgment is affirmed, without costs.