| Mueller v PSEG Power N.Y., Inc. |
| 2011 NY Slip Op 02999 [83 AD3d 1274] |
| April 14, 2011 |
| Appellate Division, Third Department |
| Paul Mueller et al., Appellants, v PSEG Power New York,Inc., Respondent. |
—[*1] Hannigan Law Firm, P.L.L.C., Latham (Terence S. Hannigan of counsel), forrespondent.
McCarthy, J. Appeal from an order of the Supreme Court (Devine, J.), entered July 1, 2010in Albany County, which, among other things, partially granted defendant's cross motion forsummary judgment dismissing the complaint.
Plaintiff Paul Mueller (hereinafter plaintiff) was employed by a contractor performingconcrete construction on a job site owned by defendant. On the date in question, plaintiff wasdisassembling, stacking and storing steel slab forms that are used as a mold to shape concretewalls and pads when they are poured. The task involved a crane removing the forms from aflatbed truck and moving them approximately 50 feet so that workers could disassemble them forstorage. The crane removed two forms that were fastened together, weighing approximately1,035 pounds, and set them on the ground in a trench next to a concrete pad, with the intention ofleaning the forms against the pad until they could be taken apart and properly stored. A workerwas sent to retrieve scrap wood to place between the form and the pad, so as to protect bothsurfaces. Plaintiff realized that the forms were backwards, which would prevent the workers fromremoving the clamps attaching them to the crane cable. He signaled to the crane operator, wholifted the forms above the workers' heads, spun them around, and again placed them on theground. Plaintiff and another worker each held one end of the forms and other workers unhookedthe clamps on the crane cable, while waiting for the scrap wood to arrive so that they could leanthe forms against the pad. After the workers released the clamps from the forms, the crane boombegan to swing away. As it moved, however, the crane cable snagged the forms, lifting themapproximately six to eight inches off the ground before dropping them. Plaintiff was [*2]injured when the forms fell against his leg.
Plaintiff and his wife, derivatively, commenced this action alleging common-law negligenceand violations of Labor Law § 240 (1) and § 241 (6). Plaintiffs moved for summaryjudgment on the issue of liability and defendant cross-moved for summary judgment dismissingthe complaint. Supreme Court denied plaintiffs' motion and partially granted defendant's crossmotion, dismissing the Labor Law causes of action. Plaintiffs appeal.
Supreme Court properly dismissed plaintiffs' claim under Labor Law § 240 (1). Thestatute's purpose is to protect workers "against risks due in some way to relative differences inelevation" (Rocovich v Consolidated Edison Co., 78 NY2d 509, 515 [1991]; see Rossv Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500-501 [1993]). For that section to apply,"a plaintiff must show more than simply that an object fell causing injury to a worker. A plaintiffmust show that the object fell, while being hoisted or secured, because of the absence orinadequacy of a safety device of the kind enumerated in the statute" (Narducci v ManhassetBay Assoc., 96 NY2d 259, 268 [2001]). Here, the forms were not being hoisted at the timeof the accident (see Zirkel v FrontierCommunications of Am., Inc., 29 AD3d 1188, 1189 [2006]; Atkinson v State of New York, 20AD3d 739, 740 [2005]; Tambasco v Norton Co., 207 AD2d 618, 620-621 [1994],lv dismissed 85 NY2d 857 [1995]; compare Brown v VJB Constr. Corp., 50 AD3d 373, 376-377[2008]). After the forms were turned around and placed on the ground for the second time, all ofthe workers intended for the forms to remain on the ground, at the same elevation as plaintiff.The forms left the ground only because they were accidentally snagged by the clamp on the cranecable, not in the course of purposeful hoisting or moving of the forms. It would be illogical tohold defendant liable for failing to utilize or properly attach a protective hoisting device when nofurther hoisting of the forms was contemplated.
Plaintiffs do not contend that the crane cable was inadequate as a safety device for the actualhoisting. Indeed, they contend that the cable was the proper device, but that it should not havebeen detached until the forms were secured against the scrap wood and leaning against the pad.This use of the cable was not for hoisting or elevation-related purposes, but merely to hold theforms upright while they remained on the ground. Thus, the failure to keep the cable attacheduntil the forms were stabilized potentially created a general workplace hazard, rather than thekind of elevation-related hazard contemplated by Labor Law § 240 (1) (see Narducci vManhasset Bay Assoc., 96 NY2d at 268; Desharnais v Jefferson Concrete Co., Inc., 35 AD3d 1059, 1060[2006]; Atkinson v State of New York, 20 AD3d at 741).
Supreme Court also properly dismissed plaintiffs' claim under Labor Law § 241 (6).Plaintiffs allege that defendant violated a regulation, entitled "Concrete Work," which states that"[f]orms, shores and reshores shall be structurally safe and shall be properly braced or tiedtogether so as to maintain position and shape" (12 NYCRR 23-2.2 [a]). Although sufficientlyspecific to form a basis for liability under the statute (see Morris v Pavarini Constr., 9 NY3d 47, 50 [2007]), thatregulation is not applicable here. The regulation applies during actual concrete work, not whenthe forms are being stored.[FN*]In addition to requiring proper bracing and tying [*3]together offorms, subdivision (a) of this regulation applies to shores. Shoring, as relates to concrete, isdefined by regulations as a "system of temporary supports, either wood or metal, used to supportthe weight of forms and uncured concrete" (12 NYCRR 23-1.4 [b] [48]). Because shores are usedonly to support uncured concrete and related forms, they are necessarily only involved in thepouring and placing of concrete. Similarly, forms only need "to maintain position and shape" (12NYCRR 23-2.2 [a]) when they are being used to mold the concrete, not when they are beingstored. Other language in the regulation requires continuous inspection of the stability of allforms only "during the placing of concrete" (12 NYCRR 23-2.2 [b]; see McCormick v 257 W. Genesee,LLC, 78 AD3d 1581, 1582-1583 [2010]; Gielow v Coplon Home, 251 AD2d970, 972 [1998], lv dismissed and denied 92 NY2d 1042 [1999]). Read as a whole, 12NYCRR 23-2.2 does not require bracing or tying together of forms except at times when they arebeing used as a mold for pouring and curing concrete. As the forms here were not being used inthis manner at the time of plaintiff's accident, but were in the process of being stored, theregulation does not apply. Accordingly, the court properly dismissed plaintiffs' Labor Law§ 241 (6) claim.
Mercure, J.P., Rose, Malone Jr. and Stein, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote *: The Court of Appeals has heldthat the interpretation of this regulation presents a question of law, but a court must sometimeshear evidence regarding specialized terms before rendering a determination (see Morris vPavarini Constr., 9 NY3d at 51). Here, the expert affidavit that plaintiffs submitted makes aconclusory statement that this regulation was "clearly applicable" and violated, but does notprovide an expert explanation for why it applies. The expert also identified a violation of asimilar standard of the American National Standards Institute, but a violation of those standardsdoes not constitute a violation under Labor Law § 241 (6).