| Coleman v Crumb Rubber Mfrs. |
| 2012 NY Slip Op 01174 [92 AD3d 1128] |
| February 16, 2012 |
| Appellate Division, Third Department |
| Dennis Coleman, Appellant-Respondent, v Crumb RubberManufacturers, Respondent-Appellant. |
—[*1] O'Connor, O'Connor, Bresee & First, Albany (P. Baird Joslin Jr. of counsel), forrespondent-appellant.
Garry, J. Cross appeals from an order of the Supreme Court (McDonough, J.), enteredJanuary 25, 2011 in Albany County, which denied plaintiff's motion for summary judgment andpartially granted defendant's motion for summary judgment dismissing the complaint.
Plaintiff, a welder, was injured while working on defendant's building located in the City ofAlbany. The building was being converted from a warehouse to a rubber recycling facility. At thetime of his injury, plaintiff was working in an area known as the hammermill room. Defendant'scontractor had installed permanent flooring consisting of metal grates laid on top of I-beams. Abelt guard protruded upward through a gap in this floor from machinery located in a basement 10feet below. The floor surrounding this belt guard had not yet been completed, and an unprotectedopening existed at one end of the guard. Plaintiff testified that he was aware of this opening andhad covered it with a wooden pallet on the day of his injury, but later returned after a briefabsence to find that the pallet had been removed. He searched unsuccessfully for another coverand then returned to work, climbing a ladder near the hole to install a ceiling beam. It becamenecessary to reposition this beam, so plaintiff descended the ladder, walked across the floortowards a second ladder, and stepped into the opening. His left leg fell in up to his groin, whilehis body and other leg remained above the hole.
Plaintiff commenced this action alleging common-law negligence and violations of [*2]Labor Law §§ 200, 240 (1) and § 241 (6). Hethereafter moved for summary judgment, and defendant moved for summary judgmentdismissing the complaint. Supreme Court denied plaintiff's motion in its entirety and granteddefendant's motion in part, dismissing plaintiff's claims pursuant to Labor Law §§200, 240 (1) and common-law negligence. These cross appeals followed.
Supreme Court properly dismissed plaintiff's claim under Labor Law § 240 (1), whichprotects workers against certain elevation-related hazards. "The extraordinary protections ofLabor Law § 240 (1) extend only to a narrow class of special hazards, and do 'notencompass any and all perils that may be connected in some tangential way with the effects ofgravity' " (Nieves v Five Boro A.C. & Refrig. Corp., 93 NY2d 914, 915-916 [1999],quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993] [emphasisomitted]). Liability under the statute exists when a worker's "task creates an elevation-related riskof the kind that the safety devices listed in section 240 (1) protect against" (Broggy v Rockefeller Group, Inc., 8NY3d 675, 681 [2007]). The existence of a lower level below the floor where plaintiff wasworking, without more, did not create an elevation-related risk, nor did plaintiff's "mereproximity" to the opening in the floor give rise to the statutory protections (D'Egidio vFrontier Ins. Co., 270 AD2d 763, 765-766 [2000], lv denied 95 NY2d 765 [2000]; see Wells v British Am. Dev. Corp., 2AD3d 1141, 1142-1143 [2003]). Rather, "a work site is elevated within the meaning of thestatute where the required work itself must be performed at an elevation . . . suchthat one of the devices enumerated in the statute will safely allow the worker to perform the task"(Leshaj v Long Lake Assoc., 24AD3d 928, 929 [2005] [internal quotation marks and citations omitted]; see Rocovich vConsolidated Edison Co., 78 NY2d 509, 514 [1991]). At the time of his injury, plaintiff wasnot performing his work at an elevation; he had descended the ladder where he had been workingand was walking across a level, permanent floor—a task which did not warrant the use ofthe protective devices required by Labor Law § 240 (1). As his accident did not result fromthe special elevation hazards envisioned by Labor Law § 240 (1), his claim under thatstatute was properly dismissed (see Wells v British Am. Dev. Corp., 2 AD3d at1142-1143; Paolangeli v Cornell Univ., 296 AD2d 691, 692 [2002]; Alvia v TemanElec. Contr., 287 AD2d 421, 422 [2001], lv dismissed 97 NY2d 749 [2002];D'Egidio v Frontier Ins. Co., 270 AD2d at 765-766).
We further agree with Supreme Court that defendant did not meet its burden relative toplaintiff's claim under Labor Law § 241 (6). Plaintiff relies upon 12 NYCRR 23-1.7 (b) (1)(i), which requires "[e]very hazardous opening into which a person may step or fall" to becovered or protected by a safety railing. This regulation "is sufficiently specific to serve as apredicate for [a] Labor Law § 241 (6) claim" (Bonse v Katrine Apt. Assoc., 28 AD3d 990, 990 [2006]; seeRoss v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 505), but it does not apply to every gapor opening. Case law has established that an opening must be of "significant depth and size" tofall within the regulation's protection (D'Egidio v Frontier Ins. Co., 270 AD2d at 765).No specific minimum size has been established, but as defendant argues, many cases applyingthis provision reference a hole "large enough for a person to fall through to a lower area"(Wells v British Am. Dev. Corp., 2 AD3d at 1144; see Milanese v Kellerman, 41 AD3d 1058, 1061-1062 [2007];Messina v City of New York, 300 AD2d 121, 123-124 [2002]; Alvia v Teman Elec.Contr., 287 AD2d at 422). It is not necessary, however, that an injured worker actually fallall the way through such an opening to sustain a claim premised on this regulation (see Pilato v Nigel Enters., Inc., 48AD3d 1133, 1134-1135 [2008]; Bonse v Katrine Apt. Assoc., 28 AD3d at 990;Keegan v Swissotel N.Y., 262 AD2d 111, 112-114 [1999], lv dismissed 94 NY2d858 [1999]), and an opening 14 to 16 inches wide has been found sufficiently large to supportsuch a claim (see Pilato v Nigel Enters., Inc., 48 AD3d at 1135).[*3]
Here, defendant's plant manager testified by affidavit thathe measured and photographed the hole where plaintiff fell. He averred that there was only oneopening into which part of a person's body could fall, measuring 12 inches long by 16 incheswide, and that the belt guard and other machinery were located in such close proximity to thisgap that they "work to prevent a person from falling from the floor level to the subfloor level."He did not, however, supply a measurement of the hole's depth. Supreme Court found that theseincomplete measurements were insufficient to prove that the hole was not of "significant depthand size" (D'Egidio v Frontier Ins. Co., 270 AD2d at 765), and that neither the manager'sopinion as to the potential for a person's body to fall through the hole nor his photographs weresufficient to establish that the hole was not a hazardous opening within the meaning of theregulation. Viewing the evidence in the light most favorable to plaintiff and affording him thebenefit of every positive inference (seeRought v Price Chopper Operating Co., Inc., 73 AD3d 1414, 1414-1415 [2010];Wells v British Am. Dev. Corp., 2 AD3d at 1142 n 1), we agree. Thus, this branch ofdefendant's motion was properly denied "regardless of the adequacy of plaintiff['s] opposition"(Bonse v Katrine Apt. Assoc., 28 AD3d at 991; see Winegrad v New York Univ.Med. Ctr., 64 NY2d 851, 853 [1985]).
Finally, we agree with plaintiff that Supreme Court erred in dismissing his claims based oncommon-law negligence and Labor Law § 200. To meet its initial burden on its summaryjudgment motion, defendant was required to establish that it did not create the opening in thefloor and had no actual or constructive notice of it (see Weinberg v Alpine Improvements, LLC, 48 AD3d 915,918-919 [2008]; Wolfe v KLR Mech.,Inc., 35 AD3d 916, 919 [2006]). Defendant made no such showing, contending insteadthat its general duty to provide plaintiff with a reasonably safe workplace did not extend to thehole in the floor because it was "readily observable" and plaintiff acknowledged that he wasaware of its presence (Gavigan v Bunkoff Gen. Contrs., 247 AD2d 750, 751 [1998],lv denied 92 NY2d 804 [1998]; see Reynolds v Fisher, 220 AD2d 968, 969[1995]). However, this Court has held that an injured person's knowledge of a readily observabledangerous condition "does not, standing alone, necessarily obviate a landowner's duty to maintainhis or her property in a reasonably safe condition" (MacDonald v City of Schenectady,308 AD2d 125, 127 [2003]). Subsequently, we determined that this "marked departure fromestablished precedent . . . [is] applicable to a claim made under Labor Law §200 since it codifies the common law" (England v Vacri Constr. Corp., 24 AD3d 1122, 1124 n 3 [2005]).Thus, even though the allegedly dangerous condition in the workplace in England "wasreadily observable and well known to [the worker] prior to the accident, these circumstancesmerely negated any duty that [the landowner] owed [the worker] to warn of potentially dangerousconditions; they do not, without more, obviate the duty to provide a reasonably safe workplace"(id. at 1124 [internal quotation marks and citation omitted]). Here, as in England,plaintiff's awareness of the hole in the floor raises triable issues of fact as to his comparativenegligence, but does not relieve defendant of its duty to maintain the premises in a reasonablysafe condition as a matter of law. As defendant did not meet its prima facie burden todemonstrate that this duty was satisfied, plaintiff's common-law negligence and Labor Law§ 200 claims should not have been dismissed (see id.; see also Bax v Allstate Health Care,Inc., 26 AD3d 861, 863 [2006]; Tulovic v Chase Manhattan Bank, 309 AD2d923, 924-925 [2003]).
Lahtinen, J.P., Spain, Stein and Egan Jr., JJ., concur. Ordered that the order is modified, onthe law, without costs, by reversing so much thereof as granted defendant's motion dismissingplaintiff's Labor Law § 200 and common-law negligence causes of action; motion deniedto said extent; and, as so modified, affirmed.