| Reavely v Yonkers Raceway Programs, Inc. |
| 2011 NY Slip Op 07366 [88 AD3d 561] |
| October 20, 2011 |
| Appellate Division, First Department |
| Walter Reavely et al., Respondents, v Yonkers RacewayPrograms, Inc., et al., Appellants. |
—[*1] Arnold E. DiJoseph, P.C., New York (Arnold E. DiJoseph, III of counsel), forrespondents.
Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered July 30, 2010,which, to the extent appealed from, denied defendants' motion for summary judgment dismissingthe Labor Law § 240 (1) cause of action and the Labor Law § 241 (6) cause of actionpredicated upon a violation of Industrial Code (12 NYCRR) § 23-1.7 (b), and grantedplaintiffs' motion for summary judgment on liability under Labor Law § 240 (1), affirmed,without costs.
Plaintiff Walter Reavely, a carpenter, was injured while assisting in the installation of a hangwall at the edge of a building foundation. Plaintiff's primary responsibility was to cut sheets ofplywood into the smaller pieces that would be used for the wall. To do this, he used a type ofcircular saw with which he was highly experienced. He then fastened the plywood strips onto thefoundation. At the time of the accident, plaintiff was cutting a piece of the hang wall that hadalready been fastened onto the foundation. To make the cut, plaintiff had to lean over the portionof the wall he was cutting and approach it from the back side. This was because a shallow gullywas between him and the wall and he could not stand in the gully while making the cut. Further,close to the back side of the hang wall was an uncovered, unguarded trench, which plaintiffcontends was 10 feet deep at the area closest to the hang wall.
Approximately 10 minutes before plaintiff approached the wall to make the cut, anothercontractor had finished installing waterproofing on the surface of the foundation where plaintiffwould be doing the work. Plaintiff knew that it ordinarily takes at least 20 minutes for thewaterproofing, which is a tar-like, viscous material, to dry. However, he was directed to make thecut immediately and did not want to defy his supervisor by waiting until he could be certain thatthe surface was safe. Plaintiff tested the material, and it appeared dry enough to stand on, so hecommenced his work. As he was completing the cut, he attempted to replant his right foot andslipped on the viscous waterproofing. According to plaintiff's affidavit submitted in connectionwith the subject summary judgment motions,
"When I slipped I lost my balance. My body was pulled forward and I hovered over theuncovered 10 feet [sic] trench edge without fall protection. It was 10 feet deep therebecause that particular section had not been backfilled. I felt that I was about to go over the edge.
"I reacted immediately and instinctively to teetering by trying to stand up. I also desperatelytried to counter the momentum pulling me over the edge by arching back. I knew that I washolding a potentially lethal saw which I was about to go over [*2]with, or even worse, on.
"Worried about hitting my leg as well and in the process of teetering and desperately tryingto prevent myself from going fully over the trench edge, my right hand came off the operatingsaw and it struck my right hand, thumb and forefinger before it dropped."
Thus, according to plaintiff's uncontested version of events, he did not actually sustain hisinjury by falling into the trench, but rather by attempting to prevent himself from falling.
Plaintiffs commenced this action against the site owner and the general contractor, allegingviolations of Labor Law §§ 200, 240 (1) and § 241 (6). In support of theirLabor Law § 241 (6) claim, plaintiffs alleged, inter alia, that defendants violated IndustrialCode (12 NYCRR) § 23-1.7 (b) (requiring that every hazardous opening be covered orhave a safety railing) and § 23-1.7 (d) (prohibiting the existence of slippery conditions atwork sites). Defendants moved for summary judgment dismissing the entire complaint. Theyargued that plaintiffs' Labor Law § 240 (1) claim should be dismissed because plaintiff didnot fall from a height, and no object fell upon him from above. As for the claims pursuant tosection 241 (6), defendants asserted that the cited Industrial Code provisions were inapplicable.Finally, defendants maintained that the Labor Law § 200 claim must be dismissed becausethey did not exercise supervisory control over plaintiff's work. Plaintiffs cross-moved for partialsummary judgment on the Labor Law § 240 (1) cause of action, arguing that the absence ofprotection from a fall into the open trench was an elevation-related hazard that proximatelycaused plaintiff's injury. They did not oppose that part of defendants' motion seeking dismissal ofthe Labor Law § 200 claim.
The motion court granted plaintiffs summary judgment as to liability on the Labor Law§ 240 (1) claim. It concluded that plaintiffs had made a prima facie showing that plaintiff'sinjuries flowed directly from the absence of a cover on the trench or other safety device toprevent him from falling into the trench. The court noted that plaintiff did not need to completelyfall from one elevation level to another to recover under the statute. However, the courtdismissed the portion of the Labor Law § 241 (6) based upon Industrial Code §23-1.7 (d), holding that the tar was necessary for proper installation of the waterproofing. To theextent the claim was based on defendants' alleged violation of Industrial Code § 23-1.7 (b),the court denied summary judgment, finding that plaintiff had demonstrated that the absence of acover or other safety device to prevent plaintiff's fall into the trench was a proximate cause of hisinjuries.
In Runner v New York Stock Exch.,Inc. (13 NY3d 599, 604 [2009]), the Court of Appeals confirmed that the touchstone ofany case under Labor Law § 240 (1) is "whether the harm flows directly from theapplication of the force of gravity." Consistent with that concept, a long line of cases makes clearthat a worker may recover pursuant to Labor Law § 240 (1) if he is injured by agravity-related accident, even if he did not actually fall (see e.g. Pesca v City of NewYork, 298 AD2d 292 [2002]; Carroll v Metropolitan Life Ins. Co., 264 AD2d 336[1999]; Dominguez v Lafayette-Boynton Hous. Corp., 240 AD2d 310 [1997]). ThisCourt has consistently held that the statute applies where a worker was injured in the process ofpreventing himself from falling (see e.g. Pesca, 298 AD2d at 293; Suwareh v State of New York, 24AD3d 380 [2005]), or preventing himself from being struck by a falling object (see e.g. Lopez v Boston Props. Inc., 41AD3d 259 [2007]; Skow v Jones, Lang & Wooton Corp., 240 AD2d 194 [1997],lv denied 94 NY2d 758 [1999]). Indeed, Suwareh (24 AD3d at 380) presentsfacts strikingly similar to this case. There, the claimant, who was standing on a roof, was haulinga bucket of hot tar up to the roof by pulling a rope. The bucket got stuck on a ledge of thebuilding, and, while attempting to free it, the claimant lost his balance. He leaned back so as notto fall off the roof, and as he did so, he lost control of the bucket, whose contents spilled onto hisfeet. This Court [*3]held that "the risk of injury was the directresult of the application of gravity to either claimant himself or the materials being hoisted" (24AD3d at 381).
The Second Department has followed the same reasoning. In Ienco v RFD Second Ave., LLC (41AD3d 537, 538 [2007]), the plaintiff and his partner, while standing on a plank, weredirected to remove a beam and pass it to coworkers six feet below them. When the plaintiffmoved his end of the beam, it struck him in the arm. This caused him to lose his balance and"almost" fall. He was able to avoid falling by bracing his foot against a piece of metal. In doingso, however, he hit his head against a metal column and injured himself. The court rejected theplaintiff's claim to the extent it alleged that the beam that struck him in the arm was a "fallingobject" (41 AD3d at 539). However, to the extent the plaintiff alleged that he was a "fallingworker," the court found that the defendants did not establish prima facie their entitlement tosummary judgment, since " '[i]t is of no consequence that plaintiff allegedly sustained injuries ashe prevented himself from falling further' " (id., quoting Ortiz v Turner Constr. Co., 28 AD3d627, 628 [2006]).
In this case, defendants argue that the effects of gravity did not proximately cause plaintiff'sinjuries because he would have taken the same course of action and sustained the same injuryeven if there had been no trench in his immediate vicinity. They attempt to create a distinctionbetween plaintiff's slip on the waterproofing and his sensation of falling. They do this by seizingon plaintiff's statement in his affidavit, and elsewhere, that he "reacted immediately andinstinctively" as proof that he was merely attempting to recover from the sensation of slipping onthe waterproofing, as opposed to the sensation of falling. However, the record demonstrates thatplaintiff's slip on the surface cannot be separated, temporally or otherwise, from the act of hisbeginning to fall into the open trench.
Indeed, defendants ignore the balance of plaintiff's affidavit, in which he clearly stated thathe was injured while responding to the sensation of actually falling into the trench. Plaintiffstated that he "was pulled forward and . . . hovered over theuncovered 10 feet [sic] trench edge" (emphasis added). He "felt that [he] was about togo over the edge," and stated that he was "teetering" and that there was "momentumpulling [him] over the edge" (emphasis added). Defendants do not contest these facts, whichclearly show that plaintiff was not experiencing just the sensation of slipping when he took thecourse of action that led to his injury. Rather, it was the absence of a safety device such as acover on the trench or a safety harness, that caused plaintiff to do what he did and was theproximate cause of his injuries.
The lack of a safety device was a violation of Labor Law § 240 (1), and was theproximate cause of plaintiff's injuries. In concluding otherwise, the dissent is simply wrong.There is no evidence here by which a rational trier of fact could find that the presence of thetrench did not play a substantial role in causing plaintiff to react the way he did. Indeed, thedissent can only take the position it does by ignoring the undisputed facts in the record and thewell-established case law, discussed above, that permits recovery under the statute where aworker is injured while successfully fighting the force of gravity. Further, because IndustrialCode (12 NYCRR) § 23-1.7 (b) requires that every hazardous opening be covered or havea safety railing, we also disagree with the dissent's view that defendants did not violate LaborLaw § 241 (6). The lack of such a safety device clearly was the proximate cause ofplaintiff's injuries. Concur—Mazzarelli, Acosta and RomÁn, JJ.
Tom, J.P., and DeGrasse, J., dissent in a memorandum by Tom, J.P., as follows: At hisexamination before trial, plaintiff Walter Reavely testified that he was working at the edge of afoundation concrete slab on which waterproofing material had been laid down using hot tar toadhere the sheets to the concrete. He was assigned the task of cutting and placing plywood boardsto create a hang wall at the leading edge of the construction project's foundation. When initiallyinstalled, the top edge of the plywood rose about 14 inches above the top of the footing of theconcrete slab. Plaintiff then cut each section of plywood from left to right using a Skil circularsaw so as to leave the top of the plywood extended about four or five inches above the top of thefooting. He stated on two occasions that he was "holding the saw in a squatted position," butwhen asked directly if he was squatting, replied, "No. It's just like me bent so I'm in acomfortable position." At the end of the cement slab, there was an open trench that was 10- to12-feet deep. As plaintiff was cutting a section of plywood there, his right foot slipped away fromhim because the tar had not completely hardened. Plaintiff testified that when he tried to preventhimself from falling into the trench below, the circular saw, while it was still in the wood, cut hisright thumb and index finger.
The protection of Labor Law § 240 (1) has been construed to apply only to specialhazards "related to the effects of gravity where protective devices are called for either because ofa difference between the elevation level of the required work and a lower level or a differencebetween the elevation level where the worker is positioned and the higher level of the materialsor load being hoisted or secured" (Rocovich v Consolidated Edison Co., 78 NY2d 509,514 [1991]; see Runner v New YorkStock Exch., Inc., 13 NY3d 599 [2009]). Plaintiffs have failed to specify facts fromwhich it can be deduced that plaintiff's injury was either the result of a significant heightdifferential or the proximate result of the effect of gravity (cf. Suwareh v State of New York, 24 AD3d 380 [2005] [claimantworking at elevated height was injured when he nearly fell while attempting to free a bucket thatwas being hoisted and hot tar spilled on his foot]; Lopez v Boston Props. Inc., 41 AD3d 259 [2007] [plaintiff injuredwhen his fall was abruptly halted by safety harness]; Skow v Jones, Lang & WootonCorp., 240 AD2d 194 [1997], lv denied 94 NY2d 758 [1999] [worker injured whilehelping carry 200-pound pump down ship's ladder]).
Here, plaintiff was working on a level concrete slab at the time of the accident. He wasinjured when a small section of waterproofing slipped out from under him and caused him to losehis footing, and the circular saw he was using cut into his hand. Plaintiff's injury resulted fromhis loss of balance on a slippery level surface, which is not related to the effect of gravity andwould have occurred regardless of whether a trench was nearby. He did not fall into the trench.Therefore, any failure to cover the trench or to equip plaintiff with a harness was not theproximate cause of his injury. The record fails to provide any explanation sufficient to relate theinjury sustained to the operation of the force of gravity (see Runner v New York Stock Exch., Inc., 13 NY3d 599[2009], supra). Rather, plaintiff's injury resulted from "the type of peril a constructionworker usually encounters on the job site" (Misseritti v Mark IV Constr. Co., 86 NY2d487, 491 [1995]). The effect of gravity here was at best tangential (see Ross v Curtis-PalmerHydro-Elec. Co., 81 NY2d 494, 501 [1993]).
The cases cited by the majority in support of recovery under Labor Law § 240 (1) areeither distinguishable or do not state the circumstances under which injury was sustained (seee.g. Pesca v City of New York, 298 AD2d 292 [2002]; Carroll v Metropolitan Life Ins.Co., 264 AD2d 336 [1999]). Dominguez v Lafayette-Boynton Hous. Corp. (240AD2d 310 [1997]) is [*4]distinguishable in that the force ofgravity acted on a motorized scaffold, five stories above the ground, causing it to swing backtoward the face of the building and resulting in injury to the plaintiff's wrist. In Suwareh v State of New York (24AD3d 380 [2005]), the claimant was hoisting a bucket of hot tar when it got stuck and thetar spilled onto his feet. The facts in Suwareh clearly implicate a gravity-related riskunder Labor Law § 240 (1) and are distinguishable from the facts of this case.
Moreover, the injury sustained by plaintiff was not proximately caused by the absence of asafety device such as a hoist, sling, hanger, rope, harness or barrier, or a cover for the trench, soas to state a viable cause of action under Labor Law § 240 (1) (see Nieves v Five BoroA.C. & Refrig. Corp., 93 NY2d 914, 916 [1999] [no section 240 (1) liability where injuryresults "from a separate hazard wholly unrelated to the risk which brought about the need for thesafety device in the first instance"]; cf. Suwareh, 24 AD3d at 381 [absence of hoist andproper brace]; Pesca, 298 AD2d at 293 [railing]; Carroll, 264 AD2d at 336[unspecified safety device]; Dominguez, 240 AD2d at 312 [proper protectioncompromised by obstruction]; Skow, 240 AD2d at 194 ["the ship's ladder provedinadequate"]). Under the circumstances of this case, summary judgment should have beengranted in favor of defendants dismissing plaintiffs' Labor Law § 240 (1) claim.
For the same reason, there is no viable cause of action under Labor Law § 241 (6)predicated upon a violation of 12 NYCRR 23-1.7 (b), which requires every hazardous opening tobe guarded by a cover or a safety railing. While defendants did not appeal from the part of theorder that denied their motion as to that cause of action, upon review of a motion for summaryjudgment, this Court may search the record and, where appropriate, grant summary judgmenteven to the nonmoving party and even in the absence of a cross appeal (Merritt HillVineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-112 [1984]). Thus, upon a search ofthe record, I find that there is no showing that the failure to cover the trench or provide plankingbelow the opening, or safety nets, harnesses or guard rails was the proximate cause of plaintiff'sinjuries, nor has any violation of 12 NYCRR 23-1.7 (b) (1) (iii), which specifically governs workperformed close to the edge of an opening, been made out (cf. Luckern v Lyonsdale EnergyLtd. Partnership, 281 AD2d 884, 886-887 [2001]).
Accordingly, the order should be reversed and the complaint dismissed. [Prior CaseHistory: 2010 NY Slip Op 32018(U).]