| Egan v Monadnock Constr., Inc. |
| 2007 NY Slip Op 06746 [43 AD3d 692] |
| September 18, 2007 |
| Appellate Division, First Department |
| Gerard Egan, Appellant, v Monadnock Construction, Inc.,Respondent. |
—[*1] Landman Corsi Ballaine & Ford P.C., New York (Gerald T. Ford of counsel), forrespondent.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered April 7, 2006, whichdenied plaintiff's motion for partial summary judgment on his Labor Law § 240 (1) claim,and granted defendant's cross motion for summary judgment dismissing the entire complaint,affirmed, without costs or disbursements.
The record establishes that in erecting scaffolding on the first floor of the building underconstruction, plaintiff covered the staircase that had provided the only means of access to thebasement. With the staircase covered, plaintiff realized he needed additional materials for thescaffolding that were located in the basement, which was approximately 10 feet below the firstfloor. Instead of dismantling the first-floor scaffolding or attempting to locate one of thesufficiently tall straight ladders on site but not in the immediate vicinity of his work, plaintiffdecided to use a too short six-foot A-frame ladder that had been left in the basement near thecovered staircase. As plaintiff explained, he "needed to get down to the basement, and that wasthe only way to get down." Unfortunately, the basement space was so narrow that the A-frameladder could not be fully opened so the braces could be locked. No one instructed plaintiff to usethe A-frame to descend to the basement; rather, on his own, he decided that removing thescaffold that blocked the staircase would be "too big a job." Nor did plaintiff ask for one of thetaller straight ladders that were on the site.
After successfully lowering himself onto the top of the ladder and descending into thebasement, plaintiff retrieved the materials and ascended the ladder. As plaintiff reached for arebar to use in hoisting himself back up to the first floor, the ladder, which was unsteady as aresult of not being fully opened, slid out from underneath him and he fell to the basement floor,sustaining injury.
Under these circumstances, the court properly granted defendant's cross motion anddismissed the section 240 (1) cause of action. Plaintiff's own actions were the sole proximatecause of his injuries, disqualifying him from recovery under this section of the statute (see Robinson v East Med. Ctr., LP, 6NY3d 550 [2006]; Montgomery vFederal Express Corp., 4 NY3d 805 [2005]). This case is strikingly similar toMontgomery. There, [*2]ladders were available at the jobsite, albeit not in the immediate vicinity, and as here, there was no record evidence that theplaintiff knew that a more appropriate ladder was available. As the Court noted, rather than fetcha ladder, the plaintiff and a coworker climbed to the motor room from the roof by standing on anoverturned bucket. Upon completing the job, the plaintiff jumped down to the roof and injuredhis knee. In affirming this Court's dismissal of plaintiff's section 240 (1) cause of action (307AD2d 865 [2003]), the Court of Appeals held that "since ladders were readily available,plaintiff's 'normal and logical response' should have been to go get one. Plaintiff's choice to use abucket to get up, and then to jump down, was the sole cause of his injury" (4 NY3d at 806).
Plaintiff's Labor Law § 241 (6) cause of action, which relied on an alleged violation ofIndustrial Code (12 NYCRR) § 23-1.21 (b) (4), was also properly dismissed. The Codeprovision is inapplicable because the ladder plaintiff used to ascend from the basement was notbeing used "as a regular means of access between floors" (§ 23-1.21 [b] [4] [i]) of thebuilding, and in any event, any alleged violation of the section was not a proximate cause of hisinjuries (see Trippi v Main-Huron,LLC, 28 AD3d 1069, 1070 [2006]). Concur—Sullivan, Nardelli, Sweeny andMalone, JJ.
Saxe, J.P., dissents in part in a memorandum as follows: I agree that plaintiff's Labor Law§ 241 (6) claim must be dismissed, and that his motion for partial summary judgment onhis claim pursuant to Labor Law § 240 (1) was properly denied in view of the owner'sevidence that other, appropriate ladders were available. However, I would deny defendant's crossmotion for summary judgment dismissing the section 240 (1) claim. Issues of fact exist as towhether defendants provided the necessary safety equipment in the manner required by thatstatute.
Plaintiff was injured while working on a building under construction. He asserts that one ofhis assigned tasks that day was to erect scaffolding on the first-floor landing to assist the masonsin constructing the walls for the elevator shaft. No one instructed him as to where to erect thescaffold, and, perceiving that there was only one appropriate place to put the needed scaffold, heconstructed it in a spot where its planking blocked access to the previously-installed,prefabricated staircase between the basement and the first floor.
While working, plaintiff discovered that he needed items that were kept in the basement. Inview of the now-blocked staircase, he looked for available means to descend to the basement. Henoticed a six-foot A-frame ladder in the basement in a narrow hall next to the blocked staircase.Because that ladder appeared to be the only way to get down, and he did not know of otheravailable ladders on the site and had not noticed any others in the area, plaintiff decided to usethe six-foot A-frame ladder.
The space was so narrow that the A-frame ladder could not be fully opened and its bracescould not be locked, but plaintiff successfully lowered himself onto the top of the ladder and usedit to descend into the basement. He retrieved the materials he needed for the scaffold and handedthem up to a coworker. He then ascended the A-frame ladder, and as he got to and tried to reachfor a piece of rebar to pull himself up to the first-floor landing, the ladder turned from under him[*3]and fell, causing him to fall to the concrete floor below andsustain injuries.
Labor Law § 240 (1) requires property owners and general contractors to providenecessary safety equipment for those workers performing work at elevated locations. "It is theresponsibility of the contractor and owner—not the individual worker—to provideand place appropriate safety devices at the particular work site so 'as to give proper protection toa person so employed' " (Ramos v Port Auth. of N.Y. & N.J., 306 AD2d 147, 148[2003]). The burden is on the owner and contractor to see that the necessary devices arefurnished, not on the worker to hunt down whether the proper device can be found (see Singhv Barrett, 192 AD2d 378, 380 [1993], citing Heath v Soloff Constr., 107 AD2d 507,511 [1985]). While defendants imply that the situation requiring safety devices was created byplaintiff's faulty decision as to where and how to build the scaffold, the owner and contractorcannot avoid their responsibility under section 240 (1) by assigning a worker tasks and thenleaving him to his own devices with respect to how to accomplish the tasks. If his job assignmentrequired him to use a safety device, ensuring that a proper one is provided was still theresponsibility of the owner and contractor, and unless it is uncontroverted that this was done, thedefendants are not entitled to summary judgment. Any other rule would improperly shiftresponsibility to the worker (see Miro vPlaza Constr. Corp., 38 AD3d 454, 460 [2007, Gonzalez, J., dissenting], lvgranted 2007 NY Slip Op 78860[U] [2007]).
The assertion by a construction supervisor that other, appropriate ladders were on site doesnot establish as a matter of law that defendants' obligation was satisfied, particularly where theemployee testified that he was not aware of them or their availability. If plaintiff had admitted inhis testimony that he knew a taller and more appropriate ladder was available to him on the jobsite, a determination that as a matter of law his own negligence was the sole proximate cause ofhis injuries would be appropriate (seeRobinson v East Med. Ctr., LP, 6 NY3d 550 [2006]). However, in view of plaintiff'sclaim that he was unaware of other, more appropriate ladders available on the job site, the section240 (1) claim should not be resolved as a matter of law, since we cannot conclude as a matter oflaw that all the necessary safety devices were made available, or that plaintiff's poor choice fromamong devices that were on hand was his own doing. I would therefore hold that summaryjudgment is precluded here by a question of fact as to whether defendants provided the necessarysafety equipment.