| Johnson v Small Mall, LLC |
| 2010 NY Slip Op 08842 [79 AD3d 1240] |
| December 2, 2010 |
| Appellate Division, Third Department |
| Craig D. Johnson, Appellant, v Small Mall, LLC,Respondent. |
—[*1] Levene, Gouldin & Thompson, L.L.P., Binghamton (Daniel R. Norton of counsel), forrespondent.
Garry, J. Appeal from that part of an order of the Supreme Court (Lebous, J.), entered November9, 2009 in Broome County, which denied plaintiff's motion for partial summary judgment on the issue ofliability pursuant to Labor Law § 240 (1).
Plaintiff was injured while repairing roof trusses in defendant's building. To reach the trusses, repairworkers walked on wooden joists located below and perpendicular to them. These joists were lessthan two inches wide and spaced two feet apart. The sheetrock ceiling of the room below was fastenedto the underside of the joists, and electrical wiring ran between them. During the course of the project,several temporary walkways had been installed in the work area, but plaintiff testified withoutcontradiction that these served only to "get you close to where you had to go," and that he could notaccess his work areas without walking on the joists. Plaintiff was walking across the joists to reach astructure that he was dismantling when he tripped on a wire, lost his balance, and fell through thesheetrock to the floor 16 feet below.
Plaintiff commenced this action alleging violations of Labor Law §§ 200, 240 (1) and§ 241 (6) and, after joinder of issue, moved for partial summary judgment as to liability pursuantto Labor Law § 240 (1). Defendant cross-moved for summary judgment dismissing the causesof action pursuant to Labor Law §§ 200 and 241 (6). Supreme Court denied plaintiff'smotion in its entirety and partially granted defendant's cross motion by dismissing the Labor Law§ 241 (6) cause of action. Plaintiff now appeals from that part of the order that denied hismotion, [*2]contending that defendant violated Labor Law § 240(1) as a matter of law by failing to provide a safety device to prevent his fall.
Labor Law § 240 (1) imposes a nondelegable duty upon owners to provide scaffolds orother safety devices to protect workers from elevation-related safety risks (see Zimmer v ChemungCounty Performing Arts, 65 NY2d 513, 521 [1985]; Deshields v Carey, 69 AD3d 1191, 1192 [2010]). When the failure toprovide such a device is the proximate cause of a worker's accident, the owner's liability is establishedas a matter of law (see Blake vNeighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 289 [2003]; Dalaba v City of Schenectady, 61 AD3d1151, 1152 [2009]).
Defendant contends that because the joists supported plaintiff as he worked, they were equivalentto scaffolding and therefore constituted a safety device. However, "calling a [structure] a scaffold doesnot make it one" (Avelino v 26 Railroad Ave., 252 AD2d 912, 913 [1998]). A scaffold isdefined in the Industrial Code as "[a] temporary elevated working platform and its supporting structureincluding all components" (12 NYCRR 23-1.4 [b] [45]; see Rocha v State of New York, 45AD2d 633, 635 [1974], lv denied 36 NY2d 642 [1975]). In the area where plaintiff wasworking at the time of his injury, the joists supported no temporary platform, walkway, flooring, boards,or other separate surface of any kind. Labor Law § 240 (1) is to be "liberally construed to effectits purpose of providing protection to workers" (Gilbert v Albany Med. Ctr., 9 AD3d 643, 644 [2004]); it would becompletely inconsistent with this statutory purpose to find that the narrow joist tops, bordered on bothsides by openings shielded only by insubstantial sheetrock, constituted platforms.
Although defendant argues that we have previously found various structures to be functionallyequivalent to scaffolds because they supported workers in elevated positions, the essential issueunderlying these determinations was whether the workers were exposed to elevation-related hazards,bringing their accidents within the ambit of Labor Law § 240 (1)—a threshold inquiry notchallenged in the circumstances here (seeHanvey v Falke's Quarry, Inc., 50 AD3d 1237, 1238 [2008]; Beard v State of New York, 25 AD3d989, 991 [2006]; Craft v Clark Trading Corp., 257 AD2d 886, 887-888 [1999]).Indeed, in prior cases involving falls from open joists, we have treated them as elevated worksites andheld that liability under Labor Law § 240 (1) depended on whether safety devices such asscaffolding, safety harnesses or lanyards were furnished to protect workers from the elevation-relatedhazard posed by working from the joists (seee.g. Traver v Valente Homes, Inc., 20 AD3d 856, 857-858 [2005]; Watso vMetropolitan Life Ins. Co., 228 AD2d 883, 884-885 [1996]). No such devices were provided toplaintiff.
Defendant's further contention that plaintiff was the sole proximate cause of his injury because he"decided" to walk across the joists disregards plaintiff's uncontroverted testimony that he wasattempting to reach his work area, by the only means available, as part of the performance of his duties.Accordingly, as plaintiff was not provided with a safety device to protect him from the elevation-relatedhazard posed by his work, and as that failure was the proximate cause of his accident, he was entitledto partial summary judgment on his Labor Law § 240 (1) claim (see Yost v Quartararo, 64 AD3d1073, 1074-1075 [2009]; Leshaj vLong Lake Assoc., 24 AD3d 928, 929-930 [2005]).
Peters, J.P., Spain, Lahtinen and Kavanagh, JJ., concur. Ordered that the order is modified, on thelaw, with costs to plaintiff, by reversing so much thereof as denied plaintiff's motion for partial summaryjudgment on the issue of liability pursuant to Labor Law § 240 (1); motion granted and partialsummary judgment awarded to plaintiff on said cause of action; and, as so modified, affirmed.[Prior Case History: 25 Misc 3d 1227(A), 2009 NY Slip Op 52315(U).]