| Gasques v State of New York |
| 2009 NY Slip Op 01442 [59 AD3d 666] |
| February 24, 2009 |
| Appellate Division, Second Department |
| Wanderlei Gasques et al., Appellants, v State of NewYork, Respondent. |
—[*1] Cartafalsa, Slattery, Turpin & Metaxas, New York, N.Y. (Jill E. O'Sullivan of counsel), forrespondent.
In a claim to recover damages for personal injuries, etc., the claimants appeal from an orderof the Court of Claims (Waldon, J.), dated September 6, 2006, which granted the defendant'smotion for summary judgment dismissing the claim.
Ordered that the order is modified, on the law, by deleting the provision thereof grantingthose branches of the defendant's motion which were for summary judgment dismissing theLabor Law § 200 and common-law negligence claims, and substituting therefor aprovision denying those branches of the motion; as so modified, the order is affirmed, withoutcosts or disbursements.
The injured claimant, while ascending the Brooklyn tower of the Kosciuszko Bridge on atwo-point suspension scaffold, sustained injuries when he stopped the scaffold, and his hand wascrushed between the motor control of the scaffold and the steel of the bridge. The injuredclaimant and his wife (hereinafter the claimants) brought the instant claim alleging violations ofLabor Law § 240 (1), § 241 (6) and § 200, and common-law negligence.
"Labor Law § 240 (1) provides exceptional protection for workers against the specialhazards that arise when the work site itself is either elevated or is positioned below the levelwhere materials or load are being hoisted or secured" (Natale v City of New York, 33 AD3d 772, 773-774 [2006]; seeNarducci v Manhasset Bay Assoc., 96 NY2d 259, 267-268 [2001]). "These special hazardsdo not [*2]encompass any and all perils that may be connected insome tangential way with the effects of gravity. Rather, they are limited to such specificgravity-related accidents as falling from a height or being struck by a falling object that wasimproperly hoisted or inadequately secured" (Gonzalez v Turner Constr. Co., 29 AD3d 630, 631 [2006]).
The defendant made a prima facie showing of entitlement to judgment as a matter of lawdismissing the Labor Law § 240 (1) claim by demonstrating that the injured claimant'sinjury, while tangentially related to the effects of gravity, was not caused by the limited type ofelevation-related hazards encompassed by the statute (see Sajid v Tribeca N. Assoc. L.P., 20 AD3d 301 [2005]; O'Brien v Triborough Bridge & TunnelAuth., 17 AD3d 105 [2005]; Zdunczyk v Ginther, 15 AD3d 574 [2005]). In opposition, theclaimants failed to raise a triable issue of fact.
Labor Law § 200 is a codification of the common-law duty imposed on owners andcontractors to provide workers with a safe place to work (see Rizzuto v L.A. Wenger Contr.Co., 91 NY2d 343, 352 [1998]). "This provision applies to owners, contractors, and theiragents" (Romang v Welsbach Elec.Corp., 47 AD3d 789, 789 [2008]). The accident here stems not "from a dangerouscondition on the premises" (Keating vNanuet Bd. of Educ., 40 AD3d 706, 708 [2007]), but from the manner in which thework was being performed (id.). To be held liable under Labor Law § 200 and forcommon-law negligence when the method and manner of the work is at issue, it must be shownthat "the party to be charged had the authority to supervise or control the performance of thework" (Ortega v Puccia, 57 AD3d54, 61 [2008]; see Chowdhury vRodriguez, 57 AD3d 121 [2008]). While the right to generally supervise the work, stopthe contractor's work if a safety violation is noted, or to ensure compliance with safetyregulations and contract specifications is insufficient to impose liability under Labor Law§ 200 or for common-law negligence (see McLeod v Corporation of Presiding Bishop of Church of Jesus Christ ofLatter Day Sts., 41 AD3d 796, 798 [2007]; Peay v New York City School Constr. Auth., 35 AD3d 566, 567[2006]; Warnitz v Liro Group, 254 AD2d 411 [1998]), the defendant, on the recordbefore us, failed to make a prima facie showing that it did not have the authority to control themanner in which the claimant's work was performed (see Hurtado v Interstate Materials Corp., 56 AD3d 722 [2008]).
12 NYCRR 23-1.5 (c) (1) is a general safety standard, which is an insufficient predicate forliability under Labor Law § 241 (6) (see Maday v Gabe's Contr., LLC, 20 AD3d 513 [2005]; Sparkes v Berger, 11 AD3d 601[2004]; Madir v 21-23 Maiden LaneRealty, LLC, 9 AD3d 450 [2004]). Therefore, the defendant met its prima facie burdenof establishing its entitlement to summary judgment dismissing the Labor Law § 241 (6)claim by showing that the claimants failed to allege the violation of a sufficiently specificIndustrial Code provision. In opposition, the claimants failed to raise a triable issue of fact.
Accordingly, the Court of Claims properly granted those branches of the defendant's motionwhich were for summary judgment dismissing the Labor Law § 240 (1) and § 241(6) claims and erred in granting those branches of the defendant's motion which were forsummary judgment dismissing the Labor Law § 200 and common-law negligence claims.Fisher, J.P., Dillon and McCarthy, JJ., concur. Belen, J. (concurring in part and dissenting in part and voting to modify the order by deletingthe [*3]provisions thereof granting those branches of thedefendant's motion which were for summary judgment dismissing the Labor Law §§200 and 240 [1] claims and the common-law negligence claim, and substituting thereforprovisions denying those branches of the motion, and, as so modified, to affirm the order, withthe following memorandum): I respectfully dissent. While I concur with the majority that theLabor Law § 241 (6) claim must be dismissed, and that the Labor Law § 200 andcommon-law negligence claims should not be dismissed, I disagree with the majority's dismissalof the Labor Law § 240 (1) claim, and its conclusion that the injury was caused by a perilmerely tangential to the effect of gravity.
Wanderlei Gasques (hereinafter the claimant) was employed by Ahern Painting Contractors,which had a contract with the State of New York to repaint the Kosciuszko Bridge. The claimantand his partner were working inside the Brooklyn tower of the bridge. They were suspended on a"spider scaffold," sandblasting and painting the bridge. This scaffold had a motor on each endand each motor was controlled independently of the other, activated by two workers individuallyholding down the switch on each of their motors on their respective side of the scaffold. Themotor would then grip the cable running down from the top of the bridge and the scaffold wouldascend like a trolley car on a track.
The claimant described several safety problems with this scaffold. First, the switches on thescaffold were outside of the platform, requiring the workers to reach behind the cable to activatetheir motors. Another safety problem was that the scaffold was too wide for the upper portion ofthe bridge tower, thus it could not ascend the tower without tilting its way up, inclining upessentially in a "see-saw" fashion. As described by defense counsel in the affirmation in supportof summary judgment: "The scaffold moves along cables inside the bridge towers; the towersnarrow upon ascent. . . . Consequently, the space within the bridge supportbecomes more confined as the elevation increases. . . . When the scaffold rises, it isnecessary for each painter to guide the scaffold with the hand not on the control switch toprevent the scaffold from swaying. . . . Each painter carries a coil of spray line tothe spider scaffold. . . . He drops the rolled up coil underneath the scaffold andfixes the spray line to the side of the scaffold with a piece of rope. . . . The painterswatch the spray line to make sure that they do not tangle and interfere with the operation of thespider lift."
To further complicate matters, the workers needed access to several hoses to provide paintand material to the spray guns they used in their sandblasting and painting operation. If the hosesbecame stuck or entangled in the too narrow space outside the lift, the painter would essentiallyhave to reach outside the scaffold and under it to reach the hoses. There was no space for theworkers to reach the hoses on the sides of the scaffold in that narrow space without gettingcrushed between the motor and the bridge, thus the scaffold inadequately protected the workersfor the job they had to do.
The workers wore full face masks as well as earplugs to protect themselves from the fumesand the deafening noises of the spray guns and motors. At one point during the ascent in thetower, the claimant's paint hose caught on something below as the scaffold moved up. Theclaimant reached for the hose and reached to the motor control to stop the scaffold. He screamedfor his partner to stop moving his end of the scaffold, but his partner could not hear him andcontinued holding down his switch moving his side of the scaffold up, thus tilting the claimantdown. The claimant's hand then got caught on the motor control on his side of the scaffold andthe metal plate of the bridge, crushing his hand. The guard rail on the scaffold could not behigher than the [*4]controller for the motor since if it were, itwould block the workers from doing their jobs.
In opposition to the defendant's motion for summary judgment, the claimant presented theaffidavit of an expert who opined that the motor control on the spider scaffold "which was of thefixed position type used to make the scaffold ascend and descend was unsafe and defective inthat it was not provided with a means of locking it in the off position nor was it provided with aguard to prevent accidental activation."
The claimant has unquestionably raised triable issues of fact with regard to his Labor Law§ 240 (1) claim. Labor Law § 240 (1) provides that "[a]ll contractors and owners. . . shall furnish or erect, or cause to be furnished or erected . . .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." Labor Law § 240 (1) is to be construed as liberally as may be for theaccomplishment of the purpose for which it was thus framed (see Koenig v Patrick Constr.Corp., 298 NY 313, 319 [1948]; Quigley v Thatcher, 207 NY 66, 68 [1912]).
The scaffold provided to the claimant contained nothing to prevent the type of accident thatforeseeably happened with the uncovered motor control outside of the platform crushing hishand. It is well established that "the availability of a particular safety device [such as a scaffold]will not shield an owner or general contractor from absolute liability if the device alone is notsufficient to provide safety without the use of additional precautionary devices" (Smizaski v784 Park Ave. Realty, 264 AD2d 364, 365 [1999], quoting Conway v New York StateTeachers' Retirement Sys., 141 AD2d 957, 958-959 [1988]).
In a case quite similar to this, Iencov RFD Second Ave., LLC (41 AD3d 537 [2007]), the plaintiff, while working with apartner to move a beam, was struck in the shoulder by the beam while in a struggle to remove thebeam from a column. This caused him to lose his balance. He was injured when, in attempting tostop himself from falling, he braced his foot against a piece of metal and hit his head against thecolumn, sustaining a head injury.
In Ienco, this Court stated: "Labor Law § 240 (1) requires contractors andowners to provide workers with appropriate safety devices to protect against 'such specificgravity-related accidents as falling from a height or being struck by a falling object that wasimproperly hoisted or inadequately secured' (Ross v Curtis-Palmer Hydro-Elec. Co., 81NY2d 494, 501 [1993]). . . . Ienco's deposition testimony raises a triable issue offact as to whether he was provided with any safety devices such as a harness. As the SupremeCourt correctly determined, '[i]t is of no consequence that plaintiff allegedly sustained injuries ashe prevented himself from falling further' (Ortiz v Turner Constr. Co., 28 AD3d 627, 628 [2006])" (Iencov RFD Second Ave., LLC, 41 AD3d at 538-539 [citations omitted]).
Likewise in Skow v Jones, Lang & Wooton Corp. (240 AD2d 194, 195 [1997]), theFirst Department stated the following: "That plaintiff neither fell from a height nor was struck bya falling object does not require dismissal of his section 240 (1) claim, the proof being sufficientto show that his injury was caused by his effort to prevent the pump from falling (see,Wensley v Argonox Constr. Corp., 228 AD2d 823 [1996], lv dismissed 89 NY2d861 [1996]; Prekulaj v Terano Realty, 235 AD2d 201 [1997])."[*5]
In Sasso v NYMED, Inc. (238 AD2d 799[1997]), another case comparable to the present case and cited by the claimant, Sasso wasinjured while installing sheet rock at a construction site. The slab of sheet rock began to fall andas he reached to grab it, he was pulled partially over the protective railing around the scaffoldupon which he was standing, injuring his back. The Appellate Division, Third Department,concluded that "the accident in question was the direct consequence of the application of gravityto the sheetrock, which, having been inadequately hoisted or secured, posed a special hazardbecause 'of a difference between the elevation level of the required work and a lower level'(Rocovich v Consolidated Edison Co., 78 NY2d 509, 514; see Sheridan v BeaverTower, 229 AD2d 302, 303-304, lv dismissed 89 NY2d 860). The fact that plaintiffdid not himself fall is not dispositive, for while the scaffold shielded him from the risk posed bythe location of his worksite some six feet above the ground, it did not protect him from thedistinctly separate, elevation-related hazard created by the need to suspend a 50-pound piece ofsheetrock over his head" (Sasso v NYMED, Inc., 238 AD2d at 800 [citations omitted]).
Thus, the claimant's case here falls squarely within the line of cases that find a Labor Law§ 240 (1) violation where a worker is injured in an attempt to secure an object that isimproperly hoisted (the paint hose). Moreover, it is respectfully submitted that the cases cited bythe majority are all significantly distinguishable from the case presented here.
In Zdunczyk v Ginther (15AD3d 574 [2005]), the plaintiff allegedly injured his hand when, while assisting a coworkerin lowering construction debris, the coworker suddenly released the rope to which the bucketwas attached. This Court held that the plaintiff's injury was tangentially related to the effects ofgravity upon the bucket and arose from the usual and ordinary dangers of a construction siterather than the kind of elevation-related risk contemplated by the statute. Similarly, in Sajid v Tribeca N. Assoc. L.P. (20AD3d 301 [2005]), the Appellate Division, First Department, found that when acounterweight fell and crushed the plaintiff's hand it was not an accident caused by anelevation-related risk, as the counterweight was not elevated over the work site. In fact, thecounterweight was not even elevated waist high and fell only eight inches. Finally, in O'Brien v Triborough Bridge & TunnelAuth. (17 AD3d 105 [2005]), the plaintiff's hand hit an iron beam when he was workingon a slippery wooden box. This also appears to be more of a workplace accident not resultingfrom the particular risks of hoisting something to a height.
The claimant in the case at bar was not even remotely injured by something that could beseen as resulting from the "usual and ordinary dangers of a construction site" (Zdunczyk vGinther, 15 AD3d at 575). As has been noted extensively above, he was working on a tiltingspider scaffold at a high elevation that required the coordinated effort of a coworker to ascend.The scaffold itself was dangerously constructed so that it tilted and yet it was forced to see-sawin order to climb through an ever narrowing bridge tower. The main tool for his work was a painthose that was improperly secured and hoisted so that it got stuck. In an effort to retrieve his hose,he was forced to reach for it causing the scaffold to tilt. In an effort to both prevent his fall andretrieve the hose, he got his hand crushed by an improperly and unsafely exposed motor.
Here, the claimant submitted evidence that the work involved a significant inherent riskattributable to an elevation differential, as the hoses dangled from the scaffold to the ground at agreat height as the scaffold tilted up and down as it rose higher in the tower (see e.g. Ienco v RFD Second Ave., LLC,41 AD3d 537 [2007]; Ortiz vTurner Constr. Co., 28 AD3d 627, 628 [2006]; Kollbeck v 417 FS Realty, 4 AD3d 314 [2004]; Smith v ArtcoIndus. Laundries, 222 AD2d 1028 [1995]) and the claimant was compelled to reachdangerously outside the see-sawing platform to prevent the dangling hoses from [*6]entangling or dropping to the ground, with no safety device such asa guard covering the motor to protect him from this hazard (see e.g. Berg v Albany Ladder Co., Inc., 10 NY3d 902 [2008];Striegel v Hillcrest Hgts. Dev. Corp., 100 NY2d 974 [2003]; Farrington v Bovis Lend Lease LMB, Inc.,51 AD3d 624 [2008]; Francis vForemost Contr. Corp., 47 AD3d 672 [2008]). This is clearly a case that falls within thecoverage of Labor Law § 240 (1).
The fact that the claimant did not himself fall from a height or have an object from the worksite fall upon him does not preclude recovery under Labor Law § 240 (1). While thescaffold protected the claimant from the risk posed of falling from the heights of the work site, itdid not protect him from the distinctly separate elevation hazard created by the need to untanglehose lines while suspended on a tilting platform, squeezed into a narrow opening with anexposed metal motor control projecting against the metal bridge surface. It is clear that theclaimant's injury was a foreseeable consequence of the defendant's failure to provide a safe placeto work and to place proper protective devices where they were called for (see Kollbeck v 417 FS Realty, 4 AD3d314 [2004]; Sasso v NYMED, Inc., 238 AD2d 799 [1997]). Accordingly, theclaimant has raised triable issues of fact sufficient to defeat summary judgment dismissing theLabor Law § 240 (1) claim. The order appealed from should be modified accordingly andthe claimant allowed his day in court on this claim.