affirming summary judgment where falling glass injured plaintiff because material was not being hoisted nor was it part of a load that required securing for purposes of the work being undertakenSummary of this case from Guenther v. Modern Continental Companies
Decided May 10, 2001.
Appeal, in the first above-entitled action, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that court, entered March 9, 2000, which affirmed so much of an order of the Supreme Court (Bertram Katz, J.), entered in Bronx County, as denied the motions of defendants and third-party plaintiffs for summary judgment dismissing plaintiff's Labor Law § 240 (1) claim, denied that branch of a motion by defendant EBH Construction, Ltd. for summary judgment on their claims for indemnification. The following question was certified by the Appellate Division: "Was the order of the Supreme Court, as affirmed by this Court, properly made?"
Appeal, in the second above-entitled action, by permission of the Court of Appeals, from a judgment of the Supreme Court (John V. Centra, J.), entered in Onondaga County, dismissing the complaint and bringing up for review a prior nonfinal order of the Appellate Division of the Supreme Court in the Fourt Judicial Department, entered December 31, 1998, which modified, on the law, and, as modified, affirmed an order of the Supreme Court (John J. Elliott, J.), entered in Onondaga County, denying a motion by plaintiff for partial summary judgment on the issue of liability under Labor Law § 240 (1), denying a cross motion by defendant and third-party plaintiff Zausmer Frisch Associates, Inc. against the third-party defendant for indemnification, granting a cross motion by defendant and third-party plaintiff Council House Realty Corporation for conditional summary judgment against the third-party defendant for indemnification, and denying a motion by the third-party defendant for summary judgment dismissing plaintiff's Labor Law § 240 (1) claim. The modification consisted of granting the motion of the third-party defendant for partial summary judgment dismissing the Labor Law § 240 (1) cause of action.
Sheldon Bunin, for appellant EBH Construction.
James K. O'Sullivan, for appellants Manhasset Bay et al.
Anita Nissan Yehuda, for third-party respondent.
Alexander J. Wulwick, for respondents.
Case No. 63:
Nancy L. Pontius, for third-party respondent Burns.
Paul G. Ferrara, for respondents Zausmer Frisch, et al.
Janet D. Callahan, for appellants.
Defense Association of New York, Inc., amicus curiae.
Chief Judge Kaye and Judges Smith, Levine, Wesley, Rosenblatt and Graffeo concur.
These appeals require us to examine the circumstances under which Labor Law § 240(1) liability may be imposed upon property owners and contractors when an object falls on a worker at a construction site. Neither situation presented here gives rise to liability under Labor Law § 240(1).
Plaintiff Alex Narducci, an employee of Atlantic Windows, was assigned the task of removing steel window frames, as part of a larger restoration project, from the third floor exterior of a fire-damaged Long Island City warehouse owned by Manhasset Bay Associates and leased to Thypin Steel. To oversee the restoration, Thypin hired Preferred Restoration Experts as its general contractor and Preferred, in turn, hired EBH Construction as its construction manager on the site. Preferred also hired the window subcontractor, A D Windows who hired Atlantic.
On the day of his accident, plaintiff began by working on the window frame furthest to the right of the three that he was assigned to remove. As he stood on a ladder propped against the right-most window frame sawing the frame loose, plaintiff paused, looked over and saw a large piece of glass from an adjacent window frame falling toward him. He turned to avoid being hit in the face by the glass, but was severely cut on his right arm. Plaintiff did not fall from the ladder, nor did the ladder malfunction in any way.
Plaintiff brought suit under Labor Law § 240(1), alleging that he should have been given a scissor jack — a type of hydraulic platform — to perform his work properly. Supreme Court denied motions by defendants Manhasset Bay Associates, Thypin Steel and EBH Construction to dismiss plaintiff's Labor Law § 240(1) claim, holding that issues of fact existed as to whether scaffolding could have prevented the accident. Further, the court denied EBH Construction's motion to dismiss plaintiff's Labor Law § 200 claim against it. A divided Appellate Division affirmed. We now reverse.
Plaintiff Louis Capparelli, Jr., a journeyman electrician employed by Burns Electric Co., was assigned the job of installing fluorescent light fixtures into a dropped ceiling grid as part of the renovation of Onondaga Plaza, a facility in Syracuse. The owner of the facility, Council House Realty Corp., hired Zausmer Frisch Construction, Inc. as its general contractor for the renovation, and Zausmer Frisch contracted with Burns Electric.
Planning to install a ceiling fixture, plaintiff climbed about half-way up an eight-foot step ladder in order to reach the ten-foot ceiling. From his position on the ladder, plaintiff lifted the light fixture into the ceiling grid so that its edges rested on the grid. Plaintiff's next step would have been to secure the fixture to the ceiling grid by twisting metal tabs attached to the fixture; however, as he was about to descend the ladder in order to change position to perform that step, the light fixture began to fall from the grid. Plaintiff immediately reached out to stop the fixture from hitting him, but the fixture slid as he tried to hold it, cutting his right hand and wrist. Plaintiff did not fall from the ladder.
Plaintiff brought suit under Labor Law § 240(1), alleging that he should have been given a scaffold to perform his work that day. Supreme Court denied cross-motions for summary judgment on the Labor Law § 240(1) claim, holding that issues of fact existed. The Appellate Division modified by granting the cross-motion of third party defendant Burns Electric, holding that plaintiff's injury was caused by "the usual and ordinary dangers of a construction site" and not the "extraordinary elevation risks" covered by Labor Law § 240(1). Following a judgment of Supreme Court dismissing the remaining causes of action, plaintiff appealed. We now affirm.
Not every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240(1). Rather, liability is contingent upon the existence of a hazard contemplated in section 240(1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein (see, Ross v. Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d 494, 501).
Labor Law § 240(1) provides, in relevant part: "All contractors and owners and their agents, * * * in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."
Labor Law § 240(1) "`is to be construed as liberally as may be for the accomplishment of the purpose for which it was * * * framed'" (Koenig v. Patrick Constr. Corp., 298 N.Y. 313, 319, quoting Quigley v. Thatcher, 207 N.Y. 66, 68), however, this principle operates to impose absolute liability only after a violation of the statute has been established. Even "a violation of [Labor Law § 240(1)] cannot `establish liability if the statute is intended to protect against a particular hazard, and a hazard of a different kind is the occasion of the injury'" (Rocovich v Consolidated Edison Co., supra, 78 N.Y.2d, at 513, quoting DeHaen v. Rockwood Sprinkler Co., 258 N.Y. 350, 353).
Labor Law § 240(1) applies to both "falling worker" and "falling object" cases. With respect to falling objects, Labor Law § 240(1) applies where the falling of an object is related to "a significant risk inherent in * * * the relative elevation * * * at which materials or loads must be positioned or secured" (Rocovich v. Consolidated Edison Co., supra, 78 N.Y.2d, at 514). Thus, for section 240(1) to apply, a plaintiff must show more than simply that an object fell causing injury to a worker. A plaintiff must show that the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute(see,e.g., Pope v. Supreme-K.R.W. Constr. Corp., 261 A.D.2d 523; Baker v. Barron's Edu. Srv. Corp., 248 A.D.2d 655).
In addition, the fact that an injured plaintiff may have been working at an elevation when the object fell is of no moment in a "falling object" case, because a different type of hazard is involved. Working at an elevation does not increase the risk of being hit by an improperly hoisted load of materials from above. The hazard posed by working at an elevation is that, in the absence of adequate safety devices (e.g., scaffolds, ladders), a worker might be injured in a fall. By contrast, falling objects are associated with the failure to use a different type of safety device (e.g., ropes, pulleys, irons) also enumerated in the statute (see, Ross v. Curtis-Palmer Hydro-Electric Co., supra, 81 N.Y.2d, at 501). Because the different risks arise from different construction practices, the hazard from one type of activity cannot be "transferred" to create liability for a different type of accident.
Applying these principles to the facts in Narducci, the glass that fell on plaintiff was not a material being hoisted or a load that required securing for the purposes of the undertaking at the time it fell, and thus Labor Law § 240(1) does not apply. No one was working on the window from which the glass fell, nor was there evidence that anyone worked on that window during the renovation. The glass that fell was part of the pre-existing building structure as it appeared before work began. This was not a situation where a hoisting or securing device of the kind enumerated in the statute would have been necessary or even expected.
Furthermore, while the risk of falling glass is assuredly greater at a warehouse whose windows have been damaged in a fire, that is not the type of risk that Labor Law § 240(1) was intended to address. Absolute liability for falling objects under Labor Law § 240(1) arises only when there is a failure to use necessary and adequate hoisting or securing devices. The absence of a necessary hoisting or securing device of the kind enumerated in Labor Law § 240(1) did not cause the falling glass here. This was clearly a general hazard of the workplace, not one contemplated to be subject to Labor Law § 240(1) (see,Misseritti v. Mark IV Constr. Co., Inc., 86 N.Y.2d 487).
Nor does the fact that plaintiff was working at an elevation bring this scenario within the ambit of Labor Law § 240(1). Plaintiff does not contest that the ladder on which he was standing functioned properly. He was not injured as a result of a fall. Thus, since the ladder had no legally sufficient causal connection to this injury, it could not be deemed "inadequate" under these facts (see, Rocovich v. Consolidated Edison Co., supra, 78 N.Y.2d, at 513).
Plaintiff argues that if he had performed the task on a scissor jack it might have prevented the accident since he would have performed his work horizontally instead of vertically and, as a result, would have been in a different location when the glass fell. Also, plaintiff asserts that a scissor jack might have protected him from falling glass. As noted, however, a scissor jack is designed to protect the worker from falling, an entirely different risk. Here, plaintiff was adequately secured. The only risk was the glass. Since the glass was not an object being hoisted or secured, Labor Law § 240(1) does not apply.
With respect to plaintiff Narducci's Labor Law § 200 and common law negligence claims against EBH Construction, we hold that the motion by defendant EBH Construction to dismiss those claims against it should have been granted. There was insufficient evidence, as a matter of law, to rebut EBH's argument that it did not exercise sufficient control of the activities of subcontractors to justify the imposition of liability (Lombardi v. Stout, 80 N.Y.2d 290, 294).
The plaintiff in Capparelli similarly fails to state a claim under Labor Law § 240(1). Plaintiff's job was to secure the light fixture into place after he hoisted it into the ceiling grid. The ceiling that plaintiff was working at was ten feet high, while the ladder he was given was eight feet tall. Plaintiff was standing no less than halfway up the ladder when the light fixture fell on his arm, causing the injury.
Under these undisputed facts, there was no height differential between plaintiff and the falling object. Plaintiff was working at ceiling level when his accident occurred. That being so, this is not a case that entails the hazards presented by "a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured" (Rocovich v. Consolidated Edison Co., supra, 78 N.Y.2d, at 514). The fact that gravity worked upon this object which caused plaintiff's injury is insufficient to support a section 240(1) claim (see, Rodriguez v. Tietz Ctr. for Nursing Care, Inc.,supra, 84 N.Y.2d 841; Terry v. Mutual Life Ins. Co. of NY, 265 A.D.2d 929;Sutfin v. Ithaca College, 240 A.D.2d 989).
While many workplace accidents, including this one, could be classified as "gravity-related" occurrences stemming from improperly hoisted or inadequately secured objects, courts may nonetheless distinguish those occurrences that do not fit within the Legislature's intended application of Labor Law § 240(1) (see, Ross v. Curtis-Palmer Hydro-Electric Co., supra, 81 N.Y.2d, at 501; see also, Temkin, New York's Labor Law 240: Has it Been Narrowed or Expanded by the Courts Beyond Legislative Intent?, 44 New York Law Sch. L Rev. 45 ). The exclusion made for the de minimis elevation differential in this case is appropriate.
Accordingly, in Narducci, the order of the Appellate Division should be reversed, with costs, plaintiffs' Labor Law § 240(1) cause of action against EBH Construction, Ltd., Manhasset Bay Associates and Thypin Steel Company dismissed, plaintiffs' Labor Law § 200 and common law negligence causes of action as against EBH Construction, Ltd. likewise dismissed, and the certified question answered in the negative.
In Capparelli, the judgment appealed from and order of the Appellate Division brought up for review should be affirmed, with costs.
Order reversed, with costs, plaintiffs' Labor Law § 240(1) cause of action against EBH Construction, Ltd., Manhasset Bay Associates and Thypin Steel Company dismissed, plaintiffs' Labor Law § 200 and common law negligence causes of action as against EBH Construction, Ltd. dismissed and certified question answered in the negative.
Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs.