| Salazar v Novalex Contr. Corp. |
| 2010 NY Slip Op 02728 [72 AD3d 418] |
| April 1, 2010 |
| Appellate Division, First Department |
| Raul Salazar, Appellant, v Novalex Contracting Corp. etal., Respondents. (And a Third-Party Action.) |
—[*1] White, Quinlan & Staley, LLP, Garden City (Erin M. O'Hanlon of counsel), for NovalexContracting Corp., respondent. Epstein and Rayhill, Elmsford (Russell Monaco of counsel), for 96 Rockaway, LLC,respondent. Kral Clerkin Redmond Ryan Perry & Girvan, LLP, New York (Rhonda D. Thompson ofcounsel), for T-Construction Co., Inc., respondent.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered on or aboutDecember 19, 2007, which, to the extent appealed from as limited by the briefs, granted themotion of defendants Novalex Contracting Corp., 96 Rockaway, LLC, and T-Construction Co.,Inc. for summary judgment dismissing plaintiff's Labor Law § 240 (1) and § 241 (6)claims, reversed, on the law, without costs, the motion denied, and the claims reinstated.
Plaintiff was injured while he was spreading freshly poured concrete in the basement of abuilding that was being renovated. He fell into an open trench while walking backwards andusing a tool to smooth out the concrete. Although his torso remained at floor level, his entireright leg went into the trench. According to plaintiff, the room in which the accident occurredcontained several trenches. He testified that the trench he fell into was approximately four feetdeep, two feet wide and between 10 and 15 feet long. A representative of defendant NovalexContracting Corp., the general contractor, stated that there was only one continuous trench,which branched off in several directions. That witness testified that the depth of the trench variedfrom one foot to three feet and that it was two feet wide. He stated that the trench had been dugso that another contractor could lay underground piping for the building's sanitary system.
Part of plaintiff's task was to spread concrete that was to be poured into and over thetrenches. However, he testified that when the accident occurred, he was spreading concrete onthe floor and was not attempting to spread concrete in or into any trench. Indeed, he did notknow that a trench was behind him when he fell.[*2]
Defendant T-Construction Co., Inc., plaintiff'semployer,[FN*]moved for summary judgment dismissing the complaint as against it. As is pertinent to thisappeal, it argued that the evidence established that it did not violate Labor Law § 240 (1)and § 241 (6). With regard to section 240 (1), the employer maintained that the trench intowhich plaintiff fell was not an elevation-related hazard and that it was just one of the usual andordinary dangers associated with a construction site. With regard to section 241 (6), theemployer asserted that none of the predicate Industrial Code provisions cited by plaintiff,including 12 NYCRR 23-1.7 (b) (1), governing "hazardous openings," applied to the facts of thiscase.
The owner, 96 Rockaway, LLC, and general contractor cross-moved for summary judgment.Both expressly adopted the employer's arguments regarding Labor Law § 240 (1) and§ 241 (6).
The motion court found that section 240 (1) did not apply because the "accident did notresult from a fall from a significant height or gravity related risk that could have been preventedwith the use of one of [the] protective devices enumerated in the statute." The court further foundthat Industrial Code (12 NYCRR) § 23-1.7 (b), upon which the section 241 (6) claim waspredicated, did not apply because plaintiff "did not fall through an opening to a level below."
Carpio v Tishman Constr. Corp. of N.Y. (240 AD2d 234 [1997]) involved factssimilar to those of this case. There, the plaintiff was extending a paint roller that he was going touse to paint a ceiling. As he was looking up at the ceiling, his leg fell three feet down a10-to-14-inch-wide shaft in the surface of the floor. This Court awarded him summary judgmenton his Labor Law § 240 (1) claim. Relying in part on "common sense," we observed thatthe risk of injury to the plaintiff was "gravity-related" because it was created by "the 'differencebetween the elevation level of the required work' . . . and 'a lower level' " (240AD2d at 235, quoting Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]).
Here, the basement floor on which plaintiff was walking immediately before his accidentwas equivalent to the floor on which the plaintiff in Carpio was standing before he fell.The bottom of the trench into which plaintiff fell is no different from the bottom of the shaft inCarpio. Because the risk in this case was elevation-related, as in Carpio, LaborLaw § 240 applies, and it was error for the motion court to dismiss plaintiff's claim underthat section.
The holdings in Rocovich v Consolidated Edison Co. (78 NY2d 509 [1991],supra) and Toefer v Long Is.R.R. (4 NY3d 399 [2005]) do not alter this conclusion. In Rocovich, the Courtof Appeals found that there was no liability under Labor Law § 240 because it was"difficult to imagine how plaintiff's proximity to" a 12-inch deep, 18-to-36-inch-wide troughcarrying a stream of hot oil "could have entailed an elevation-related risk" (78 NY2d at514-515). Here, plaintiff's task required him to traverse a floor that contained an opening ofsignificantly greater width and depth than that encountered in Rocovich. Indeed, incontrast to Rocovich, the bottom of the trench in this case represented a separatelevel, which, relative to the floor itself, surely constituted a gravity-related hazardcovered by section 240, even by the standard articulated by the Court of Appeals inRocovich (id.).
In Toefer, the Court of Appeals held that section 240 did not apply to a worker's fallfrom the inherently stable surface of a flatbed truck (4 NY3d at 408-409). Toefer has nobearing on [*3]this case, because there the surfaces on which theplaintiffs were working were inherently safe and a reasonable owner or contractor would notforesee that a person would fall from them. Here, it was eminently foreseeable that a workerwould fall into a portion of the trench while spreading concrete on the floor.
The dissent asserts that this case is analogous to other cases in which this Court found thatLabor Law § 240 (1) did not apply. However, those cases are inapposite. In both Romeo v Property Owner (USA) LLC(61 AD3d 491 [2009]) and Geoniev OD & P NY Ltd. (50 AD3d 444 [2008]), the worker stepped into an opening in araised "computer floor" that was created when one of the floor tiles was removed. InRomeo the opening was a mere two feet by two feet and 18 inches deep. It can bepresumed that the dimensions of the opening in Geonie, although not disclosed in thedecision, were similar.
In each of these cases the dimensions of the opening in the floor were not sufficientlysignificant that the worker could be said to have been working at an elevation. In contrast, thetrench that plaintiff fell into here was, according to plaintiff, four feet deep and 15 feet long.Further, plaintiff's work area, which was approximately 25 feet by 20 feet, did not contain asingle hole of small dimensions. Rather, it contained several long, uncovered trenches (or,according to the general contractor, one large, continuous trench that extended in variousdirections). Nearly everywhere plaintiff could have turned, a falling hazard presented itself.Under those circumstances, plaintiff's workplace was certainly elevated for purposes of LaborLaw § 240.
In reaching this conclusion, we have considered the other cases from this Department citedby the dissent. However, after careful examination, we have determined that they aredistinguishable on their facts. We fail to see how this constitutes a rejection of stare decisis,which we agree with our dissenting colleague is a "principled concept."
Recognizing that its position is inconsistent with settled law of this Department, the dissentargues that the various cases it cites from other Departments should be followed and that weshould overrule Carpio. However, the holdings in those cases do not compel any changein the law of this Department, because they are not consistent with the Court of Appeals cases onwhich they purport to rely. As discussed, neither Rocovich nor Toefer holds thatthe type of hazard encountered by plaintiff here is not covered by Labor Law § 240 (1).Bond v York Hunter Constr. (95 NY2d 883 [2000]) and Dilluvio v City of NewYork (95 NY2d 928 [2000]) involved falls from a construction vehicle and a pickup truck,respectively, not from the floor on which a worker was situated into a trench or hole in that veryfloor. Broggy v Rockefeller Group,Inc. (8 NY3d 675 [2007]) found that there was no section 240 (1) violation because theplaintiff could not establish that the desk that created the elevation was necessary for theperformance of the task at hand. In this case, plaintiff could not have avoided being at a higherelevation in relation to the bottom of the trench when the accident occurred.
Absent any Court of Appeals precedent to the contrary, Carpio remains the law ofthis Department. Indeed, as this Court recognized in Carpio, the Labor Law "is to beconstrued as liberally as may be for the accomplishment of the purpose for which it was thusframed" (240 AD2d at 235, quoting Koenig v Patrick Constr. Corp., 298 NY 313, 319[1948]). Thus, we are constrained to afford protection thereunder wherever that is consistentwith Court of Appeals authority, and not to limit the statute's scope as the dissent urges.
Although defendants themselves do not make the argument, the dissent argues for them thatthere was no Labor Law § 240 (1) violation because "the record plainly establishes thatfilling [*4]the trench with concrete was an integral part of thework being performed at the time of the accident." However, the record does not contain anysuch facts and does not support the dissent's supposition that it was necessary to have thetrenches open at the time plaintiff fell inside one. Moreover, the dissent ignores the rulearticulated by the Court of Appeals that "where an owner or contractor fails to provide any safetydevices, liability is mandated by the statute without regard to external considerations such asrules and regulations, contracts or custom and usage" (Zimmer v Chemung CountyPerforming Arts, 65 NY2d 513, 523 [1985]). This Court recently cited Zimmer asauthority for rejecting certain defendants' argument that "to provide an appropriate safety devicewas . . . impracticable under the circumstances" (Pichardo v Urban RenaissanceCollaboration Ltd. Partnership, 51 AD3d 472, 473 [2008]).
The motion court also erred in dismissing plaintiff's Labor Law § 241 (6) claim. Insupport of this claim, plaintiff relied on 12 NYCRR 23-1.7 (b) (1) (i), which provides: "Everyhazardous opening into which a person may step or fall shall be guarded by a substantial coverfastened in place or by a safety railing constructed and installed in compliance with this Part(rule)." This Court has defined the term "hazardous opening" as an opening "large enough for aperson to fit" into (Messina v City of New York, 300 AD2d 121, 123 [2002]). Contraryto the motion court's statement, there is no requirement that a plaintiff relying on this rule fall toa floor below. Here, the two-foot wide, three-to-four-foot-deep trench into which plaintiff'sentire right leg entered was clearly covered by the rule. The cases cited by defendants in supportof their argument that the opening was not large enough to merit the protection of the rule areinapposite. In Messina, the plaintiff's section 241 (6) claim was dismissed because thedrainpipe hole in question was only approximately 12 inches in diameter and 7 to 10 inchesdeep. Similarly, in Piccuillo v Bank of N.Y. Co. (277 AD2d 93, 94 [2000]), the plaintiffstepped into a "hand-hole" that was only approximately 12 inches wide and 8 inches deep.
The dissent argues that the rule does not apply because plaintiff did not fall into an openingat least 15 feet deep. This argument relies on 12 NYCRR 23-1.7 (b) (1) (iii) (a), which requiresplanking to be placed at least 15 feet beneath a "hazardous opening," where workers "arerequired to work close to the edge of such an opening." However, this subdivision only applieswhere the opening must remain open for work to progress. As discussed below, defendants didnot establish that this was the case here. Indeed, the dissent mischaracterizes the record when itstates that "plaintiff was injured while engaged in filling the trench, a task that could not beperformed while the trench was covered." According to plaintiff's testimony, he was not fillingthe trench when he fell; he was spreading concrete and did not even know that the trench wasimmediately behind him. Moreover, the dissent reads subdivision (b) (1) (iii) so expansively thatits construction negates the balance of the rule, which requires a "substantial cover" forhazardous openings (12 NYCRR 23-1.7 [b] [1] [i] [emphasis added]). It must be noted here thatthe dissent is overreaching since not even defendants rely on subdivision (b) (1) (iii) in arguingthat the rule does not apply to the trench into which plaintiff fell.
Plaintiff's employer suggests that, even if the size of the hole required that the hole beprotected, the rule would not apply because "where a cover or railing would completely frustratethe purpose for which the opening is made, the opening may not be deemed hazardous."Similarly, defendant general contractor asserts that the rule is inapplicable because "[t]he use ofa cover, railing or some other device to barricade the trench would have prevented the plaintiffand [*5]his coworkers from performing the task they wereretained to perform." These assertions are not sufficiently supported by the record that we canconclude, as a matter of law, that defendants could not have complied with the rule. Plaintiff'suncontradicted deposition testimony establishes only that he was spreading concrete on the floorof the basement when he fell and that he had no immediate intention of directing concrete intothe trench into which he walked backwards.
There is nothing in the record to indicate that the work could only have been performed insuch a manner as to permit no choice but to have the trench open at the time plaintiff fell insideit. Indeed, plaintiff testified that the concrete was being poured from wheelbarrows that wererepeatedly filled from a source outside the building. In other words, the concrete was not simplybeing poured onto the basement floor in one continuous flow. This suggests that the trench couldhave been covered, and remained covered, until it was time for a wheelbarrow of concrete toarrive to pour concrete directly into it. Even had defendants sequenced the work in such amanner, the workers, as the dissent puts it, "still would have been required, at the end of theprocess, to stand next to an uncovered trench being filled with cement." However, defendantswould have significantly reduced, if not eliminated, the hazard that someone such as plaintiffwould inadvertently stumble into an open trench. In determining whether an owner or contractorcomplied with the Labor Law, the analysis should consider not only how the work was done butalso whether it could reasonably have been done in a different way that would have betterensured the safety of the workers.
In any event, plaintiff was not required to present evidence that a different method from theone that was utilized would have been feasible. On this motion for summary judgment, it wasdefendants' burden to establish that they could not have complied with the Labor Law and theapplicable Industrial Code provisions because of the conditions existing in the basement whereplaintiff was injured. Defendants failed to meet that burden. Accordingly, defendants' motion forsummary judgment should have been denied. Concur—Mazzarelli, J.P., Moskowitz andAcosta, JJ.
Friedman, J., dissents in a memorandum as follows: The primary issue presented by thisappeal is whether a claim under Labor Law § 240 (1) potentially arose when a workerengaged in cementing a basement floor injured himself by accidentally stepping into athree-to-four-foot-deep trench in the floor. The trench could not be covered during the work forthe simple reason that it was the workers' job to fill it. Further, neither plaintiff nor the majoritysuggests that the "routine workplace risk[ ]" (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009])posed by the trench could have been addressed by any safety device within the contemplation ofthe statute, which refers to scaffolding, hoists, stays, ladders and other devices intended toprovide protection from substantial elevation-related risks.
In the recent past, two of the three justices constituting the majority of this panel have held,in accordance with Court of Appeals precedent, that section 240 (1) does not apply where thesituation did not call for the use of a device within the ambit of the statute. Nevertheless, andwithout offering a sound explanation of why that principle does not apply here, the majority[*6]determines to reinstate plaintiff's claim under section 240 (1).This kind of decision-making seems inconsistent with a principled concept of stare decisis. Itherefore respectfully dissent.
On May 1, 2004, plaintiff and his father, as employees of defendant and third-partydefendant T-Construction Co., Inc., were working on a renovation project at 96 RockawayAvenue in Brooklyn. T-Construction was the concrete subcontractor on the job, and plaintiff andhis father were assigned to lay down a concrete floor in a basement. The concrete was pouredfrom a truck into wheelbarrows in the basement by way of a chute through a window, and thendumped on the unfinished floor. Plaintiff used a rake-like device to spread, or "pull," theconcrete over the floor, while his father leveled it with a trowel.
Within the floor were open trenches containing plumbing pipes. In the course of laying downthe concrete floor, the trenches were to be filled with concrete so that there would be onecontinuous floor surface. In that regard, plaintiff testified as follows:
"Q. Were you directed to do anything with respect to the holes [i.e., trenches] at 96Rockaway Avenue[,] were you instructed to cover them, fill them, or something else?
"A. Yes, we had to fill them up.
"Q. What were you going to fill up the holes with?
"A. Concrete. . . .
"Q. How did you learn that you had to fill the trenches or holes in that room with cement?
"A. Because when I enter in the room [sic] my father was already working in theroom and he said that there were some holes, trenches that had to be filled out."
Similarly, an officer of defendant and third-party plaintiff Novalex Contracting Corp., theproject's general contractor, testified that plaintiff's employer, T-Construction, as concretesubcontractor, was responsible for "backfilling," or "closing," the trenches in the basement.
Plaintiff was walking backwards, "pulling" the concrete over the floor with his rake, when heinadvertently placed his right leg into a trench, with his left foot remaining on the floor above thetrench. Plaintiff injured himself in attempting to step out of the trench, which he estimated tohave been from three to four feet deep at the point where he stepped into it. When he steppedinto the trench, it was about half full of concrete, which was flowing over the floor into it.
Contrary to the majority's claim, the record plainly establishes that filling the trench withconcrete was an integral part of the work being performed at the time of the accident.[FN1]Hence, [*7]the premise on which the majority bases itsreinstatement of plaintiff's claims—the notion that the trench could have beencovered—is flatly wrong. Covering the trench obviously would have frustrated the goal offilling it. The record is not merely devoid of support for the majority's supposition that filling thetrench was a task distinct and separate from the spreading of concrete over the floor; it plainlycontradicts that supposition. In particular, there is not a shred of evidence to support themajority's assumption that a plan existed to pour concrete from wheelbarrows directly into thetrenches after the rest of the floor had been laid. To the contrary, according to plaintiff's owntestimony, the concrete was poured from the wheelbarrows onto the floor and then spread overthe floor, in the course of which the trenches were filled in. And, to reiterate, plaintiff testifiedthat the trench was already half full of concrete when he stepped into it.
The majority's speculation that "the trench could have been covered, and remained covered,until it was time for a wheelbarrow of concrete to arrive to pour concrete directly into it" isutterly disconnected from the reality portrayed in the record. Apparently, the majority imaginesthat the plan was for workers to pour concrete over the entire floor except for thetrenches, wait for that concrete to dry, and then push additional wheelbarrows of wet concrete upto the trenches to fill them in. No hint of any such scheme can be found in the record. Indeed,plaintiff himself has never argued that the job should have been performed in this way.
Once the red herring of the alternative work method devised by the majority is dismissed, itcan readily be seen that, on this record, plaintiff has no claim under either Labor Law §240 (1) or § 241 (6). Since covering the trench (the only protective strategy themajority suggests) obviously would have been inconsistent with accomplishing the goal offilling the trench, it is illogical to construe either section 240 (1) or section 241 (6) torequire such covering.[FN2]Plainly, neither statute was intended to make it unlawful to fill in trenches with concrete.
Moreover, even if I were to accept the majority's misperception of the evidence, the recordestablishes additional and independent grounds for dismissing plaintiff's claim under each [*8]statute. The Court of Appeals has long and consistently held thatLabor Law § 240 (1) applies only where workers are exposed to "an elevation-related risk. . . call[ing] for any of the protective devices of the types listed" in the statute(Rocovich v Consolidated Edison Co., 78 NY2d 509, 515 [1991]). The types of deviceslisted in the statute are "scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys,braces, irons, [and] ropes" (id. at 513). Thus, even where an accident is related to anelevation differential, Labor Law § 240 (1) is not implicated if a device of the kindenumerated in the statute would not be used to address the risk posed by the particular differencein elevation that existed. For example, in the seminal Rocovich case, where the plaintifffell into a 12-inch trough containing hot oil, the Court of Appeals held that section 240 (1) didnot apply because "it is difficult to imagine how plaintiff's proximity to the 12-inch trough couldhave entailed an elevation-related risk which called for any of the protective devices of the typeslisted in section 240 (1)" (78 NY2d at 514-515).
More recently, in Toefer v Long Is.R.R. (4 NY3d 399 [2005]), the Court of Appeals held that, under the principleestablished by Rocovich, section 240 (1) did not cover a case in which the plaintiff fellbetween four and five feet from the trailer of a flatbed truck. The Court explained: "Afour-to-five-foot descent from a flatbed trailer or similar surface does not present the sort ofelevation-related risk that triggers Labor Law § 240 (1)'s coverage. Safety devices of thekind listed in the statute are normally associated with more dangerous activity than a worker'sgetting down from the back of a truck. Obviously, the distance between the work platform andthe ground is relevant; no one would expect a worker to come down without a ladder or othersafety device from a work platform that was 10 feet high. But the lesser distance [the plaintiff]had to travel, considering the nature of the platform he was departing from, was not enough tomake Labor Law § 240 (1) applicable" (4 NY3d at 408-409).[FN3]
Toefer cites, among other authority, the Court of Appeals' earlier decision inBond v York Hunter Constr. (95 NY2d 883 [2000]), in which the plaintiff lost hisfooting as he alighted from a demolition vehicle and fell about three feet to the ground(id. at 884). In Bond, the Court of Appeals affirmed summary judgmentdismissing the claim under Labor Law § 240 (1) on the ground that, "[a]s a matter of law,the risk of alighting from the construction vehicle was not an elevation-related risk which callsfor any of the protective devices of the types listed in [the statute]" (id. at 884-885, citingRocovich; see also Broggy vRockefeller Group, Inc., 8 NY3d 675, 681 [2007] ["liability turns on whether a. . . task creates an elevation-related risk of the kind that the safety devices listed insection 240 (1) protect against"]; Dilluvio v City of New [*9]York, 95 NY2d 928 [2000] [no claim under section 240 (1)where plaintiff fell three feet from the back of a pickup truck]).
The same principle established by the above-cited Court of Appeals decisions has beenrecognized by two different unanimous panels of this Court—each one including adifferent member of the present majority—within just the last two years (see Romeo v Property Owner [USA]LLC, 61 AD3d 491, 491 [2009] [where plaintiff's foot fell 18 inches through an openingcreated by a dislodged tile in a raised floor, section 240 (1) did not apply because the incident"did not involve an elevation-related hazard of the type contemplated by the statute, and did notnecessitate the provision of the type of safety devices set forth in the statute"]; Geonie v OD & P NY Ltd., 50 AD3d444, 445 [2008] [the claim under section 240 (1) "was properly dismissed because plaintiff'sstepping into the opening left by the removal of a tile in a raised 'computer floor' was not causedby defendants' failure to provide safety devices to protect against an elevation-relatedhazard"]).[FN4]If this principle was valid in Romeo and Geonie—and, to reiterate, twojustices of the majority agreed that it was—I fail to see why the principle is not valid forthis case. The majority simply asserts, without explanation, that, while the 18-inch drop inRomeo (and the presumably similar drop in Geonie) did not call for a protectivedevice within the statute's contemplation, the three- to four-foot drop at issue here did. Themajority does not suggest any protective device covered by the statute that would have been ofuse in this case but not in Romeo or Geonie; nor does the majority otherwiseexplain its seemingly arbitrary view.
Further, consistent with the line of Court of Appeals authority discussed above, all three ofthe other Departments of the Appellate Division have held, as a matter of law, that no claimunder Labor Law § 240 (1) arises from a fall into a trench, ditch or hole of a depthcomparable to, or even greater than, that of the trench at issue here (see Miller v Weeden, 7 AD3d684, 685-686 [2d Dept 2004] ["plaintiff stepped into an uncovered hole that wasapproximately two feet wide by three feet deep"]; Mancini v Pedra Constr., 293 AD2d453, 454 [2d Dept 2002] [plaintiff fell "across and halfway down a trench that was five to sixfeet deep"]; Magnuson v Syosset Community Hosp., 283 AD2d 404, 405 [2d Dept 2001][plaintiff "fell into a three-foot deep hole"]; Wells v British Am. Dev. Corp., 2 AD3d at1142 [3d Dept 2003] [plaintiff, at an excavation, fell into an elevator pit that was "5 to 6 feetdeep"]; Paolangeli v Cornell Univ., 296 AD2d 691, 691 [3d Dept 2002] ["plaintiff fellinto a hole in the concrete floor which he described as . . . five to seven feet deep"];Kaleta v New York State Elec. & Gas Corp., 41 AD3d [*10]1257, 1257-1258 [4th Dept 2007] [plaintiff "fell into athree-foot-deep drainage ditch"]; Purselv Wellco, Inc., 6 AD3d 1096, 1097 [4th Dept 2004] [plaintiff "fell into an excavationapproximately six feet deep"]; Caradori v Med Inn Ctrs. of Am., 5 AD3d at 1064 [4thDept 2004] [plaintiff "fell into a three-foot-deep trench"]; Ozzimo v H.E.S., Inc., 249AD2d 912, 913 [4th Dept 1998] [plaintiff fell into "an open five-foot trench" when "the earthbeneath his feet gave way"]).[FN5]
In this case, not even the majority suggests that plaintiff's work in proximity to a trench thatwas three to four feet deep called for the use of a protective device of any of the typesenumerated in Labor Law § 240 (1). Certainly, the majority does not identify anyprotective device within the contemplation of the statute that should have been used to addressthe routine risk of a three- to four-foot drop in a basement floor (cf. Runner, 13 NY3d at603 [liability under section 240 (1) attached where "a device precisely of the sort enumerated bythe statute was not 'placed and operated as to give proper protection' to plaintiff"]). The majoritynonetheless reinstates plaintiff's claim under section 240 (1) in reliance on Carpio v TishmanConstr. Corp. of N.Y. (240 AD2d 234 [1997]). In Carpio, a divided panel of thisCourt held that the statute applied to a case in which the plaintiff, while painting the ceiling ofthe third floor of a building, backed into an open piping hole (10 to 14 inches wide) in theconcrete floor, "causing his leg to fall three feet below the surface to his groin area" (id.at 234). In my view, Carpio is inconsistent with the principle established by theabove-cited Court of Appeals authority (including Broggy, Toefer, Bondand Dilluvio, all decided after Carpio) that section 240 (1) is implicated onlywhere the work gave rise to "an elevation-related risk of the kind that the safety devices listed insection 240 (1) protect against" (Broggy, 8 NY3d at 681). That condition was notsatisfied in Carpio, just as it is not satisfied here. Accordingly, I believe that we shouldfollow the holding of the Court of Appeals—and of this Court's more recent decisions inRomeo (61 AD3d at 491) and Geonie (50 AD3d at 445)—rather than thatof Carpio.[FN6]
The majority concedes that Carpio, and the result the majority reaches here in solereliance on Carpio, are inconsistent with the holdings of the other three AppellateDivision [*11]Departments. Further, the majority never comes togrips with the Court of Appeals' plainly stated holding that a necessary condition for theapplicability of section 240 (1) is, to reiterate, "an elevation-related risk of the kind that thesafety devices listed in section 240 (1) protect against" (Broggy, 8 NY3d at 681).Instead, the majority gives the Court of Appeals decisions articulating that requirement (seeid.; Toefer; Dilluvio; Bond; Rocovich) an unnaturallyrestrictive reading, in effect limiting such precedents to their facts while studiously ignoring theprinciple governing the reach of the statute there articulated. Nothing in these Court of Appealsdecisions supports the majority's assumption that the Court of Appeals "intended to tether theapplication of its holding to the particular circumstances of th[ose] case[s]" (People v Abney, 57 AD3d 35, 50[2008, Moskowitz, J., dissenting], revd 13 NY3d 251 [2009]). In sum, this case simply isnot one in which plaintiff was injured because of any failure to provide him with "a deviceprecisely of the sort enumerated by the statute" (Runner, 13 NY3d at 603). Rather,plaintiff's injury resulted from a "routine workplace risk[ ]" not covered by the statute(id.; see also Cohen v MemorialSloan-Kettering Cancer Ctr., 11 NY3d 823, 825 [2008] [Labor Law § 240 (1)protections do not extend to "the usual and ordinary dangers at a construction site" (citation andinternal quotations marks omitted)];Meslin v New York Post, 30 AD3d 309, 310 [2006] [dismissing Labor Law § 240(1) claim where "the accident was not attributable to the kind of extraordinary elevation-relatedrisk contemplated by the statute"]).
Plaintiff's claim under Labor Law § 241 (6) is equally meritless. The only provision ofthe Industrial Code plaintiff invokes in support of his claim under section 241 (6) is 12 NYCRR23-1.7 (b) (1). This Court has held that the requirements of the portion of section 23-1.7 (b) (1)that specifically addresses situations in which "employees are required to work close to the edgeof . . . [a hazardous] opening [into which a person may step or fall]" (12 NYCRR23-1.7 [b] [1] [iii]) do not apply where the drop to which the workers were exposed was less than15 feet (see Hernandez v ColumbusCtr., LLC, 50 AD3d 597, 598 [2008]; Dzieran v 1800 Boston Rd., LLC, 25 AD3d 336, 338 [2006];see also Romeo, 61 AD3d at 492 [12 NYCRR 23-1.7 (b) (1) did not apply where theopening "did not present significant depth and size to warrant the protection of the provision"];Geonie, 50 AD3d at 445 [12 NYCRR 23-1.7 (b) (1) did not apply "because the openinginto which plaintiff stepped was not the type of opening intended to be covered by theregulation"]). Thus, even if the trench in this case constituted a "hazardous opening" within themeaning of 12 NYCRR 23-1.7 (b) (1), no violation of that Industrial Code provision occurred.
The majority's theory that the claim under section 241 (6) may be predicated onsubparagraph (i) of 12 NYCRR 23-1.7 (b) (1) is without merit.[FN7]When 12 NYCRR 23-1.7 (b) (1) is [*12]read as a whole, it isclear that subparagraph (i), a general provision providing for the guarding with fastened coversor safety railings of "hazardous opening[s] into which a person may step or fall," does not applyin this case, where covering the opening in question would have been inconsistent with filling it,an integral part of the job.[FN8]Subparagraph (iii) addresses cases of the specific kind presented here, in which "employees arerequired to work close to the edge of such an opening." In denying the relevance of subparagraph(iii), the majority ignores the undisputed facts of this case, which, as previously discussed,establish that plaintiff was injured while engaged in filling the trench, a task that could not beperformed while the trench was covered.[FN9]Contrary to the majority's assertion, my reading of subparagraph (iii) does not "negate[ ] the[*13]balance of the rule," but merely applies subparagraph (iii) inaccordance with its terms, namely, to situations where a task requires leaving an openinguncovered. Subparagraph (i) remains applicable where covering a hazardous opening isconsistent with the work to be performed. By contrast, the majority implies that it is never lawfulto assign a task requiring that work be performed next to an uncovered opening. What themajority fails to explain is how one can fill a hole that has a cover fastened over it.
As to the majority's suggestion that it is for the finder of fact to determine "whether [the job]could reasonably have been done in a different way that would have better ensured the safety ofthe workers," it bears repetition that plaintiff himself has never suggested, through expertevidence or otherwise, that the job should have been done in some way other than the manner inwhich it was actually performed. The alternative method suggested by themajority—waiting to fill in the trench until after the rest of the floor had beencompleted—is, to reiterate, the majority's own invention; not even a hint of it appears inthe record. The majority has no idea whether its preferred alternative would have beenreasonable, or even feasible. In particular, the majority cannot enlighten us as to whether themanner of proceeding that it suggests would have affected the quality of the floor surfaceultimately produced. Nor can the majority tell us whether it would have been feasible to fill inthe trench completely by dumping wheelbarrows of wet cement into it, rather than by directinginto it a continuous flow of wet cement across the floor.[FN10]
Finally, to the extent the alternative method proposed by the majority might theoreticallyhave been feasible, failing to use that method would not have constituted a violation of section240 (1). If the work were conducted as envisioned by the majority, the workers still would havebeen required, at the end of the process, to stand next to an uncovered trench being filled withcement, just as plaintiff was doing when he was injured. Thus, assuming for the sake ofargument that (as the majority contends) it would have been somewhat safer to fill the trenchafter completing the rest of the floor, the fault the majority purports to have identified is, at most,an arguable error in the sequencing or organizing of the work (i.e., directing the workers to fillthe trench at the same time they were spreading cement over the rest of the floor). Such a failurewould not have constituted a violation of the statutory mandate to "furnish or erect. . . devices" (Labor Law § 240 [1]) to protect the workers fromelevation-related risks.[FN11]In other words, the [*14]language of section 240 (1) simply doesnot reach arguably suboptimal choices in the sequencing or organizing of work. In applying thestatute to such conduct, the majority stretches its language beyond recognition.[FN12]
For the reasons discussed above, I would affirm the grant of summary judgment dismissingplaintiff's claims under Labor Law § 240 (1) and § 241 (6), and respectfully dissentfrom the majority's reinstatement of those claims.
Footnote *: It is unclear from the recordwhy the exclusivity rule of Workers' Compensation Law § 10 did not act to bar plaintiff'sclaims against his employer.
Footnote 1: To reiterate, the evidenceestablishing that filling the trenches was part of plaintiff's job when he was injured includestestimony by plaintiff himself that he "had to fill . . . up" the trenches with concrete;his further testimony that, when he entered the room, his father told him that "there were someholes, trenches that had to be filled out"; and the testimony of the general contractor's principalthat plaintiff's employer was responsible for "backfilling" or "closing" the trenches. In view ofthis evidence, which is entirely uncontroverted, I do not understand the majority's assertion that"the record does not contain any . . . facts" showing that filling the trench was partof plaintiff's job. The majority cannot simply wish away evidence inconvenient to its result.
Footnote 2: Even if a claim under section240 (1) cannot be defeated by showing that the use of safety device would have been"impracticable under the circumstances" (Pichardo v Urban Renaissance Collaboration Ltd. Partnership, 51AD3d 472, 473 [2008]), in this case covering the trenches would have made itimpossible—not merely impracticable—to carry out the task of filling the trenches.
Footnote 3: The majority seeks todistinguish Toefer on the ground that the flatbed trailer from which the plaintiff fell was"inherently stable." This attempted distinction falls flat. There is nothing in the record to suggestthat the floor of the basement room where plaintiff was injured (or, for that matter, even thetrench he stepped into) was in any way unstable. Certainly, the basement floor in this case wasmore stable than a flatbed trailer sitting on wheels.
Footnote 4: The other Departments of theAppellate Division have also recognized this principle (see Wynne v B. Anthony Constr. Corp., 53 AD3d 654, 655 [2dDept 2008] [dismissing claim where "plaintiff was not exposed to any risk that the safety devicesreferenced in Labor Law § 240 (1) would have protected against"]; Wells v British Am. Dev. Corp., 2AD3d 1141, 1143 [3d Dept 2003] [statute not implicated where plaintiff "did not require theuse of one of the devices contemplated by Labor Law § 240 (1) in order to safely performhis tasks"]; Caradori v Med Inn Ctrs. ofAm., 5 AD3d 1063, 1064 [4th Dept 2004] [claim dismissed because plaintiff "was notexposed to the type of hazard that the use or placement of the safety devices enumerated inLabor Law § 240 (1) was designed to protect against" (citations and internal quotationmarks omitted)]).
Footnote 5: Consistent with the casesholding that Labor Law § 240 (1) does not cover a worker's fall into a hole of a depthsimilar to that at issue, it has been held that the fall of an object onto a worker from such a heightis not covered (see Perron vHendrickson/Scalamandre/Posillico [TV], 22 AD3d 731, 732 [2005], lv denied7 NY3d 706 [2006] [statute not implicated where "the object that fell on the injured plaintiff'sfoot was, at most, two feet off the ground"]).
Footnote 6: I note that, since the task inCarpio (painting the ceiling) did not require leaving the hole in the floor uncovered,Carpio does not stand for the implausible proposition that liability under section 240 (1)can be predicated on a failure to cover a hole at the same time as it is being filled. I furtherobserve that this Court found it significant in deciding Carpio that the plaintiff thereinstepped into the uncovered hole when his "attention was focused toward the ceiling [that he waspainting]" (240 AD3d at 235).
Footnote 7: 12 NYCRR 23-1.7 (b) (1)provides in pertinent part as follows:
"(b) Falling hazards.
"(1) Hazardous openings.
"(i) Every hazardous opening into which a person may step or fall shall be guarded by asubstantial cover fastened in place or by a safety railing constructed and installed in compliancewith this Part (rule). . . .
"(iii) Where employees are required to work close to the edge of such an opening, suchemployees shall be protected as follows:
"(a) Two-inch planking, full size, or material of equivalent strength installed notmore than one floor or 15 feet, whichever is less, beneath the opening; or
"(b) An approved life net installed not more than five feet beneath the opening;or
"(c) An approved safety belt with attached lifeline which is properly secured to asubstantial fixed anchorage."
Footnote 8: Thus, Gallagher v Levien &Co. (72 AD3d 407 [2010] [decided simultaneously herewith]), in which a Labor Law§ 241 (6) claim based on 12 NYCRR 23-1.7 (b) (1) (i) is sustained, is distinguishable onthe ground that, in that case, the work did not require leaving the hole at issue uncovered.
Footnote 9: The fact that filling thetrenches was part of the job is not changed one whit by the circumstance that, at the moment hestepped into the trench, plaintiff was spreading concrete over the floor and was unaware that thetrench was directly behind him. Contrary to the majority's implication, the record shows thatplaintiff was always aware that there were trenches in the room. As previously discussed, and asshown by plaintiff's own testimony, directing the concrete over the floor and into the trencheswas one continuous job. The majority's attempt to draw a bright line between covering the floorand filling the trenches is, on this record, completely artificial and unrealistic.
Footnote 10: The majority concludes byasserting that it was defendants' burden, as proponents of the summary judgment motion,somehow to prove that no alternative work method exists that, if used, might have avoided theaccident, even though plaintiff has not suggested even one such alternative work method. Toplace this burden on defendants is to require them to prove a negative, which is impossible.
Footnote 11: In pertinent part, Labor Law§ 240 (1) provides: "All contractors and owners and their agents . . . in theerection, demolition, repairing, altering, painting, cleaning or pointing of a building or structureshall 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 otherdevices which shall be so constructed, placed and operated as to give proper protection to aperson so employed."
Footnote 12: Nor would any error insequencing or organizing the work constitute a violation of 12 NYCRR 23-1.7 (b) (1) (i), theIndustrial Code provision on which the majority predicates its reinstatement of plaintiff's LaborLaw § 241 (6) claim. The language of that provision, which is set forth in footnote 7above, plainly does not reach an error in sequencing or organizing work.