Decided April 14, 2010.
FRIEDMAN, LEVY, GOLDFARB GREEN, P.C., By: Charles E. Green, Esq., For Claimants.
WILSON, ELSER, MOSKOWITZ, EDELMAN DICKER, LLP, By: Dennis J. Pak, Esq., For Defendant.
Following completion of disclosure, claimants move, pursuant to permission previously granted by the court, for summary judgment on the issue of liability. The claim arises from a November 27, 2006 incident in which Fernando Nunez ("claimant") fell from a roof at the Beacon Correctional Facility while he was working for Hudson Valley Roofing and Sheet Metal (HVR) removing slate shingles from the roof. The motion is supported by transcripts of the depositions of claimant and Kevin O'Brien, a construction engineer with the State Office of General Services, and an affidavit from Douglas Hernandez, claimant's co-worker.
Claimant maintains that the undisputed facts entitle him to summary judgment on the issue of liability pursuant to Labor Law section 241(1). He testified at his EBT that the roof he was working on was sloped at an approximate 45 degree angle and that the edge of the roof was about 15 feet above the ground. Claimant had worked for Hudson Valley Roofing for three years and stated he had worked on this job for about seven days prior to November 27, 2006. He testified he started work at about 7:15 that morning, ripping slate tiles off of the roof with the other members of the crew and that there were brackets and planks — used for the workers to stand on while they worked on the sloped roof — in place on the section of the roof they were working on. According to claimant, there were safety harnesses in the job trailer but he was never instructed to use a safety harness while working on the roof. He stated that he would not typically wear a safety harness working on a roof because he usually worked on flat roofs, but that when he did work on a sloped roof, sometimes he worked without a harness but on some jobs it was mandatory to wear a harness at all times.
Claimant testified that at about 9 a.m., his foreman, Keith, went to a different section of the roof and told him "whenever you are finished with what you're doing you come and help me set the planks and the brackets for the next section" (Nunez EBT, p 71). Claimant stated he went to the new section and, after five or ten minutes, slipped on what he thought was a piece of slate that was wet from the morning dew and fell from the roof to the ground. There were no safety devices set up on the section of roof where claimant fell — he stated they were working to set up the boards and planks — and he claimed he complained about it, telling Keith "we need a better setup" and not receiving a response ( id., p 94).
Kevin O'Brien, the State engineer, described the job as a complete replacement of the roof on Building 57 at Beacon C.F. O'Brien visited the job site on a number of occasions prior to claimant's injury. He was there on the job's first day and observed workers on the roof without planks or boards having been set and without safety harnesses. He said he told Keith that the workers on the roof had to wear safety equipment in accordance with OSHA guidelines. O'Brien returned shortly thereafter and observed planks in place as well as workers wearing safety harnesses that were attached to a rope mounted to the building's ridge. He described other visits when he saw workers wearing harnesses that were not tied to anything.
Douglas Hernandez, claimant's co-worker, stated in an affidavit that he had been working on the job for about one week prior to claimant's accident. He stated that although they usually worked with crawling boards, at no time did he see safety ropes or brackets to which a safety harness could be attached and that no worker ever wore a safety harness or was tied to a safety line.
In opposition to the motion, defendant submitted affidavits from Jim Dobush, vice president of HVR, and Keith Ziegler, foreman on the subject job. Ziegler states that on the day of the accident, he never instructed claimant to begin working on the portion of the roof where he was injured "since there were no safety planks or proper safety devices set up on that side of the roof at that time" (par. 7). He further stated that there was no reason for claimant to have been on that portion of the roof at that time.
Both Dobush and Ziegler referenced "Tool Box Talks" memos that were distributed to workers with their paychecks and that would form the subject of safety instruction talks given by the foremen, specifically a sheet dated September 22, 2006 which is two pages in length and discusses, in some detail, fall protection, including the requirement to use various devices including guardrail systems, safety net systems or personal fall arrest systems (Exhibit A to Affirmation in Opposition). The document states that it was distributed to 30 people, including claimant and Keith Ziegler. Although Ziegler states that he would review the contents of the Tool Box Talks memos with the workers, he did not specifically state that he reviewed the contents of this memo with claimant.
Ziegler also asserted that on the accident date, he never instructed claimant to begin work on the area of the roof where the accident occurred "since there were no safety planks or proper safety devices set up on that side of the roof at that time" ( id., exhibit C, par. 7) and that there was "no reason for Mr. Nunez to have been present on the side of the roof where his accident occurred" ( id., par. 8).
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Labor Law section 240(1), the basis of claimant's motion, requires that owners and contractors provide appropriate safety devices to provide proper protection for workers at elevated work sites. Generally, in order to establish a prima facie cause of action, a claimant must show that the statute was violated and that the violation was a proximate cause of claimant's injuries ( Herrnsdorf v Bernard Janowitz Costr. Corp. , 67 AD3d 640 ). Although liability under the statute is often described as "strict" or "absolute" — in the sense that owners or contractors not actually involved in the work can be held liable and that any alleged comparative fault on the part of the injured worker is irrelevant — "causation must also be established" ( Blake v Neighborhood Hous. Servs. of NY City , 1 NY3d 280 , 289). "Even when a worker is not recalcitrant,' . . . there can be no liability under section 240(1) when there is no violation and the worker's actions . . . are the sole proximate cause' of the accident" ( id., 290).
In Cahill v Triborough Bridge Tunnel Auth. ( 4 NY3d 35 , 39 — 40 ), the Court, reversing a grant of summary judgment to an injured worker who was injured in a fall after disregarding instructions to wear safety equipment, found that although "[t]he word recalcitrant' fits plaintiff in this case well . . . [t]he controlling question, however, is not whether [he] was recalcitrant,' but whether a jury could have found that his own conduct, rather than any violation of Labor Law § 240(1), was the sole proximate cause of his accident." The court found that a jury could have found that there were adequate safety devices available, that the plaintiff knew they were available and that he was expected to wear them, notwithstanding that the instructions had been given weeks prior to the accident, that he chose for no good reason not to use the proper device and that he would not have been injured had he not made that choice, and that such findings would require the conclusion that defendant was not liable under section 240(1).
In Robinson v East Medical Ctr., LP ( 6 NY3d 550 ), the Court affirmed the dismissal of a section 240(1) claim, on a summary judgment motion, where the worker fell from a ladder that was too short for the job he was performing, based on the worker's knowledge that proper ladders were available on the site and his failure to try to obtain one. The court reasoned that since the worker knew the proper ladders were available and knew where they were stored, his attempt to do the job with an inadequate, shorter, ladder was negligence that was the sole proximate cause of his fall.
In Miro v Plaza Constr. Corp. , 38 AD3d 454 ), the Appellate Division First Department granted defendant's motion for summary judgment in a case also involving a worker injured as the result of using the wrong ladder, based on uncontroverted evidence that the worker knew he could have requested an adequate ladder but did not make such a request. Although it was apparently unclear whether an adequate ladder was available on the job site, it was undisputed that the worker's employer would have provided an adequate ladder had the worker requested one. Two judges dissented, arguing that in order for equipment to be readily available, it must be on the job site. The Court of Appeals reversed, finding that it was "not clear from the record how easily a replacement ladder could have been procured" ( 9 NY3d 948).
The Court's most recent treatment of the sole proximate cause defense was in Gallagher v New York Post ( 14 NY3d 83 ), a case involving a worker injured in a fall through an uncovered opening in the second floor of a building. Based on the testimony of a co-worker that safety devices not worn by the injured worker were available somewhere at the work site and that there was a standing order that workers were to wear harnesses and be tied off, the plaintiff's motion for summary judgment had been denied by the supreme court, and affirmed by the appellate division. The Court of Appeals reversed, finding that the plaintiff had met his burden under section 240(1) and CPLR 3212 and that defendant did not raise any issue of fact preventing summary judgment in plaintiff's favor. The Court articulated the elements and scope of the sole proximate cause defense as follows —
"Liability under § 240(1) does not attach when  the safety devices that plaintiff alleges were absent were readily available at the work site, albeit not in the immediate vicinity of the accident, and  plaintiff knew he was expected to use them  but for no good reason chose not to do so,  causing an accident. . In such cases, plaintiff's own negligence is the sole proximate cause of his injury"
( 14 NY3d 83, 88). The Court found that the defendant had not raised an issue of fact as to the availability of the sole proximate cause defense before it because there was no evidence in the record that the injured worker knew that there were safety devices readily available on the site or that he was expected to use them, nor was there any evidence that the standing order that had been issued to foremen had been conveyed to the workers. Under those circumstances, the evidence did not raise a question of fact whether the plaintiff knew of the availability of the safety devices and unreasonably chose not to use them.
A party seeking summary judgment has the burden of making a prima facie showing that he is entitled to judgment as a matter of law, offering evidence sufficient to show the absence of any material issue of fact ( Winegrad v New York Univ. Med Ctr., 64 NY2d 851; Zuckerman v City of New York, 49 NY2d 557). It is often stated that the court's role on a summary judgment is issue-finding rather than issue-determination and that the motion must be denied if there is any doubt as to the existence of an issue of material fact ( Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404); and that the evidence must therefore be construed in a manner most favorable to the party opposing summary judgment ( Rotuba Extruders v Ceppos, 46 NY2d 223).
In response to defendant's contention that the submissions indicate the presence of a number of disputed factual issues bearing on whether claimant's actions may be held to be the sole proximate cause of his accident, claimant argues that his alleged conduct cannot, as a matter of law, rise to the level of what is required for a worker to be deemed to be recalcitrant' as used in section 240(1) jurisprudence and that he is therefore entitled to summary judgment.
In a classic "straw man" argument, claimant notes that in order to establish a "recalcitrant worker" defense, defendant must show that "safety devices were actually provided to the Claimant and not just available somewhere on the worksite" (Reply Affirmation, par. 4); submits that in order to invoke the defense there must be "a purposeful or deliberate refusal to heed a specific order to use a safety device that is immediately and visibly available to the worker or actually in place" (citing McGuire v State of New York, 273 AD2d 822, 823); and concludes that "[d]efendant's recalcitrant worker defense must fail as a matter of law" (Reply Affirmation, par. 15). The problem with claimant's position is that it has been clear since at least the Blake decision in 2003 that the sole proximate cause defense does not depend on a characterization of a worker as recalcitrant and does not require a finding that the worker deliberately refused to use devices that were immediately and visibly proximate. The cases cited by claimant are all from 2000, all predate the developing section 240(1) jurisprudence as reflected in the Court of Appeals decisions discussed herein, and are all irrelevant to defendant's argument. What is required to sustain the sole proximate cause defense is proof that adequate devices were readily available and that claimant knew he was supposed to use them, not that they were actually handed to him and that he ignored a specific direction to use them, as posited by claimant.
The court agrees with defendant that the sworn submissions, whether in deposition or affidavit form, reflect genuinely contested issues of fact that bear on the determination of whether adequate safety devices were "readily available" to claimant, whether claimant knew he was supposed to use them, whether he failed to use them "for no good reason" and why he was working on an area of the roof where protective devices had not yet been installed. Although claimant takes issue with Ziegler's contention that there was no reason for claimant to have been where he was at the time of the accident, and argues that other evidence indicates that Ziegler's contention is not true, the court will not cross the line between determining whether a genuine factual issue exists and improperly deciding such an issue based on depositions and affidavits. Similarly, although claimant has established that the Tool Box Talks memo discussing safety requirements for roof workers was dated two months prior to the commencement of the job at Beacon C.F., it does appear that claimant may have been provided with a copy of the memo (he did not deny having received it; he just could not remember receiving it) and it is possible that the memo may nevertheless be relevant to the issue of whether claimant knew he was expected to use available safety devices on the Beacon C.F. job. Additionally, the testimony of O'Brien, the State engineer, and the affidavit of Hernandez, claimant's co-worker, diverged sharply as to whether workers ever used safety harnesses tied to a safety line on this job.
While defendant undoubtedly faces a significant burden of proof in establishing facts sufficient to establish its defense on the merits at trial, it cannot fairly be held from the evidence currently before the court that there is no view of that evidence that would be sufficient to establish the defense. Accordingly, the motion is denied and the liability trial will proceed as scheduled on June 8, 2010.
White Plains, New York