| Quattrocchi v F.J. Sciame Constr. Corp. |
| 2007 NY Slip Op 07488 [44 AD3d 377] |
| October 9, 2007 |
| Appellate Division, First Department |
| Anthony Quattrocchi, Respondent, v F.J. SciameConstruction Corp., Respondent-Appellant. F.J. Sciame Construction Co., Inc., Sued Herein asF.J. Sciame Construction Corp., Third-Party Plaintiff-Respondent-Appellant, v CompleteConstruction Consortium, Inc., Third-Party Defendant-Respondent, and United AirconditioningCorp., Third-Party Defendant-Appellant-Respondent. |
—[*1] Nicoletti Hornig Campise & Sweeney, New York (Edward L. Doherty of counsel), forrespondent-appellant. Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for Anthony Quattrocchi,respondent. Lustig & Brown, LLP, New York (Michael L. Stonberg of counsel), for CompleteConstruction Consortium, Inc., respondent.
Order, Supreme Court, New York County, (Harold Beeler, J.), entered on or about December23, 2005, which, inter alia, denied the motions of third-party defendant United and third-partyplaintiff Sciame for summary judgment, and granted partial summary judgment to plaintiff on hisLabor Law § 240 (1) claim, modified, on the law, to the extent of denying partial summaryjudgment on plaintiff's section 240 (1) claim, and otherwise affirmed, without costs.
Plaintiff, a carpenter employed by third-party defendant Complete Construction Consortium(Complete) was injured on March 23, 2001 on a construction site at which he was working. Twoemployees of third-party defendant United Airconditioning Corp. (United) were [*2]installing an air conditioner above a doorway, and had placedwooden planks atop two temporary swinging plywood doors to act as a shelf or makeshiftscaffold upon which they could set the air conditioner if necessary.
According to plaintiff's deposition, when he came through the plywood doors, in the courseof delivering two-by-fours upon his supervisor's direction, his shoulder hit one of the doors and"at least three" planks fell on his head and/or back and shoulder area. He was taken to theemergency room and released. He claims to have suffered traumatic brain injury, head trauma,neck injury, disc bulges and herniation, numbness and impairment of neuropsychologicalfunction.
On or about February 22, 2002, plaintiff commenced this action against Sciame, the generalcontractor, alleging common-law negligence and violations of Labor Law §§ 200,240 and 241. On or about December 18, 2003, Sciame commenced a third-party action againstComplete and United, alleging that each had agreed to hold Sciame harmless. On or about May9, 2005, United moved to dismiss the claims pursuant to Labor Law §§ 240 and 241(6), and to dismiss the third-party complaint on the ground that plaintiff was the sole proximatecause of the accident. United claimed that section 240 (1) did not apply in that there was nocausal connection between an inadequate safety device and plaintiff's injury. United also cited thedeposition testimony of Bim Goolcharan, one of the United employees who had been working onladders installing the air conditioner. He stated that, while they were working, they had blockedthe doors. When plaintiff came to the doors, he asked if he could come in. Goolcharan told himto wait as the job was done and they were in the process of finishing up. Plaintiff, however, camethrough the doors and was grazed by the planks when his shoulder bumped one of the doors uponwhich they had been balanced.
United argued that this demonstrated that plaintiff was solely to blame for his accident, thusvoiding liability under the Labor Law. Sciame cross-moved for summary judgment, contendingthat Labor Law § 240 (1) was inapplicable because the object that hit plaintiff was not inthe process of being hoisted or secured at the time of the accident.
Plaintiff opposed the motion and cross motion, and cross-moved for summary judgmentunder Labor Law § 241 (6) and § 240 (1), since it was undisputed that, from adistance of 8 to 12 feet above ground level, he was struck by planks that had not beensecured.[FN1]Complete opposed plaintiff's cross motion on the ground that the planks that hit him were not a"falling object" covered by Labor Law § 240 (1), in that they were not being hoisted orsecured.
The motion court found that Labor Law § 240 (1) was applicable, and had beenviolated since the planks should have been secured and "defendant's failure to secure (the planks)establishes its liability as a matter of law." Further, the court observed that Labor Law §240 (1) applied because the United employees were using the planks as a scaffold. Finding aviolation, [*3]the court then rejected the recalcitrant workerdefense, since that required that plaintiff's action be the sole proximate cause of hisinjury, and could not apply where a violation of Labor Law § 240 (1) was found. The courtconcluded that "the safety device . . . fell because it was defective as a safetydevice."
Although the motion court properly held that Labor Law § 240 (1) was applicable, iterred in its conclusory assertion that because the planks fell, they were necessarily inadequatelysecured, and that, therefore, this was a section 240 (1) violation.
It is well settled in voluminous section 240 (1) jurisprudence that the provision applies toboth "falling worker" and "falling object" cases.[FN2]In the latter category, Labor Law § 240 (1) applies where the falling of an object is relatedto a significant risk inherent in the "difference between the elevation level where the worker ispositioned and the higher level of the materials or load being hoisted or secured" (Rocovich vConsolidated Edison Co., 78 NY2d 509, 514 [1991]).[FN3]
Further, the issue of whether a falling object must be in the actual process of being "hoistedand/or secured," in order for the statute to apply, has also been resolved by the Court of Appeals.In Outar v City of New York (5NY3d 731 [2005]), the Court made clear that the falling object liability is not limited tocases in which the falling object is being actively hoisted or secured at the time it falls (seealso Smith v Jesus People, 113 AD2d 980 [1985] [section 240 (1) construed to cover thesituation where a defective scaffold falls on a worker and injures him; plank fell from a scaffoldand injured a carpenter who was in the process of moving it]).
In Outar, the plaintiff was injured when an unsecured dolly that was routinelyused in his work and was required to have been secured fell from its "storage" place on a5½-foot wall. Clearly in Outar, the object did not fall during the course of beinghoisted or secured.
Indeed, this Court has permitted a plaintiff to recover as a matter of law where safetyequipment became dislodged. In Thompson v St. Charles Condominiums (303 AD2d 152[2003], lv dismissed 100 NY2d 556 [2003]), the plaintiff was placing cinder blocks andpans of mortar onto a four-foot-high sawhorse scaffold, on which a bricklayer would then standin order to work. When the bricklayer climbed onto it, the scaffold collapsed, causing the cinderblocks and the bricklayer to fall on the plaintiff, injuring him. This Court found that, where asafety device has been furnished, and it collapses, a prima facie case of liability under Labor Law§ 240 (1) is established, and that this is so whenever the employee is injured as a result ofthis collapse, [*4]regardless of whether the employee was on orunder the scaffold when it collapsed.
Finally, section 240 (1) imposes absolute liability upon owners and contractors only uponproof of a violation and that such violation was the proximate cause of the injuries sustained(Zimmer v Chemung County Performing Arts, 65 NY2d 513 [1985]; see also Blake v Neighborhood Hous.Servs. of N.Y. City, 1 NY3d 280, 289 [2003] [liability is contingent on statutoryviolations and proximate cause and once these elements are established, contributory negligencecannot defeat the plaintiff's claim]).
In effect, an accident alone does not establish a Labor Law § 240 (1) violation orcausation (id.). Thus, given the mischief attendant to obscuring what was heretofore abright-line rule, for plaintiff to recover under section 240 (1), the threshold issue to be resolved iswhether there was a violation of the statute. If a violation exists, the court must determinewhether that violation was the proximate cause of plaintiff's injuries. In other words, in theinstant case, plaintiff must show that the planking was not adequately secured, and that becauseof such inadequate securing, the planks fell.
Here, the planking was being used as scaffolding to rest an air conditioning unit which wasbeing installed. However, the planking was not a defective safety device in the sense that the airconditioning unit fell from the height; rather the planking itself became the falling object andindisputably caused plaintiff's injuries. The motion court, in making its conclusory assertion thatthe plank was not adequately secured, appears to have applied a type of res ipsa analysis viz., ifthe plank fell then it necessarily could not have been adequately secured, and therefore aviolation of section 240 (1) necessarily existed.
It is true that a presumption in favor of plaintiff arises when a scaffold or ladder collapses ormalfunctions "for no apparent reason" (Blake v Neighborhood Hous. Servs. of N.Y. City,1 NY3d at 289). However, in the instant case, this is a convenient, circular theory for plaintiff,which entirely ignores his own conduct.
Hence, a triable issue of fact exists in this case because the plank appeared to be adequatelysecured on top of two doors held in place by cinder blocks before plaintiff walked through andknocked into the doors with his shoulder. The question to be determined by the finder of fact iswhether the planks were, in fact, adequately secured before plaintiff walked into one of thesupports thus rendering inadequate, by his own actions, a hitherto adequately constructedscaffold. This is not a case where there was "no apparent reason" for the planks falling, butindeed they appeared to fall for the reason that plaintiff stumbled into one of the supportingdevices after being told to wait before walking through. The evidence, therefore, plausiblysupports a contention that there was no violation and that plaintiff was the sole proximate causeof his accident. Concur—Mazzarelli, J.P., Nardelli and Catterson, JJ.
Friedman and Gonzalez, JJ., dissent in a memorandum by Gonzalez, J., as follows: Because Ibelieve that the majority's holding is inconsistent with the Court of Appeals' decision inNarducci v Manhasset Bay Assoc. (96 NY2d 259 [2001]), I would reverse and grantpartial summary judgment to Sciame and United, dismissing the Labor Law § 240 (1)claim as against them.
Plaintiff, who was employed by third-party defendant Complete Construction Consortium(Complete), was injured at the construction site where he was working. Two employees ofthird-party defendant United, in the course of installing an air conditioner above a doorway,placed wooden planks atop two temporary swinging plywood doors to act as a shelf or makeshiftscaffold, upon which they could set the air conditioner. When plaintiff entered the doorway, inthe course of delivering materials, he came in contact with one of the doors causing one of theplanks to fall on him, and allegedly injuring him.
In order for Labor Law § 240 (1) to apply, "[a] plaintiff must show that the object fell,while being hoisted or secured, because of the absence or inadequacy of a safety device of thekind enumerated in the statute" (Narducci v Manhasset Bay Assoc., 96 NY2d at 268).Since it is undisputed that the plank that fell was not "a material being hoisted or a load thatrequired securing for the purposes of the undertaking at the time it fell" (id.) and "[t]hiswas not a situation where a hoisting or securing device of the kind enumerated in the statutewould have been necessary or even expected" (id.), Labor Law § 240 (1) does notapply.
Outar v City of New York (5NY3d 731 [2005]), cited by the majority, does not require a different conclusion. InOutar, the plaintiff was injured after a track dolly, which was being used in the workbeing undertaken, and which had been left completely unsecured on an adjacent bench wall, fellon him. The Court of Appeals held that the dolly was "an object that required securing for thepurposes of the undertaking" (id. at 732). Unlike Outar, the facts in the instantcase establish that this was not a situation where a hoisting or securing device of the kindenumerated in the statute would have been necessary. The placing of two wooden planks on thetop of the doors did not create a situation where a securing device of the kind enumerated in thestatute would have been necessary or even expected. Hence, Labor Law § 240 does notapply.
Accordingly, I would hold that the approximate two-foot fall of one of two wooden planksused to rest an air conditioner during its installation, and which struck plaintiff, does not give riseto the special protections intended by Labor Law§ 240 (1).
Footnote 1: Plaintiff's counsel further notedthat "Although Mr. Goolcharan claims he instructed plaintiff not to come in the doorway,plaintiff vehemently denies any such conversation and denies ever seeing men working in thedoorway at the time of the incident." No affirmation from plaintiff to this effect was included,and nothing can be found in the record evidencing any such denial, other than his depositiontestimony that no one was working above him at the time he came through the doorway.
Footnote 2: Labor Law § 240 (1)states in pertinent part that, owners, general contractors and their agents must furnish"scaffolding , hoists, stays, ladders . . . and other devices which shall be soconstructed, placed and operated as to give proper protection" to a person employed in theerection, demolition, repairing, altering, painting, cleaning or pointing of a building.
Footnote 3: In this case, the Court ofAppeals put to rest the misapplication of this statute as enunciated in Yaeger v New York Tel.Co. (148 AD2d 308 [1989]; see also Groves v Land's End Hous. Co., 80 NY2d 978,980 [1992] ["Yaeger does not correctly state the law" because section 240 (1) applies notsimply where work is performed at heights but where work involves risks related to differencesin elevation]).