| Jackson v Heitman Funds/191 Colonie LLC |
| 2013 NY Slip Op 07906 [111 AD3d 1208] |
| November 27, 2013 |
| Appellate Division, Third Department |
| Donald L. Jackson Jr., Appellant, v Heitman Funds/191Colonie LLC, et al., Respondents. |
—[*1] Anspach, Meeks & Ellenberger, LLP, Buffalo (Kent D. Riesen of Anspach, Meeks& Ellenberger, LLP, Toledo, Ohio, of counsel), for respondents.
Stein, J. Appeal from an order of the Supreme Court (Lynch, J.), entered November23, 2012 in Albany County, which, among other things, partially granted defendants'motion for partial summary judgment.
Plaintiff was employed as a roofer by a contractor hired by defendants to replace aroof on a shopping center. In the early morning hours of October 26, 2009, plaintiff wasinjured when the handle of a roll carrier—a device used to dispense roofingmaterial (the membrane roll)—hit him in the head as he was helping to unroll themembrane.[FN1]The accident allegedly occurred [*2]when the roll carriershifted on the slippery roof, causing the membrane roll to drop, thereby forcing theT-handle to rapidly move upward and hit plaintiff in the side of his head. As a result ofthe injuries he sustained, plaintiff commenced this personal injury action againstdefendants asserting, among other things, claims pursuant to Labor Law §§240 (1) and 241 (6). After discovery was conducted, plaintiff moved for summaryjudgment on the issue of liability as to these causes of action and defendants moved forsummary judgment dismissing said causes of action. Supreme Court, as relevant here,denied plaintiff's motion it its entirety and partially granted defendants' motion bydismissing the Labor Law § 240 (1) claim and a portion of the Labor Law §241 (6) claim. Plaintiff now appeals and we modify.
We first address plaintiff's Labor Law § 240 (1) claim. This statute requiresowners and contractors to provide adequate safety devices to protect workers againstelevation-related hazards (seeWilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 7-8 [2011];Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 499-500 [1993]; Davis v Wyeth Pharms., Inc.,86 AD3d 907, 908 [2011]). A plaintiff making such a claim must show that "afailure to provide the required protection at a construction site [ ] proximately caused theinjury and that 'the injury sustained is the type of elevation-related hazard to which thestatute applies' " (Oakes vWal-Mart Real Estate Bus. Trust, 99 AD3d 31, 34 [2012], quoting Wilinskiv 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d at 7; see Williams v Town ofPittstown, 100 AD3d 1250, 1251 [2012]). As applied here, " 'the single decisivequestion is whether plaintiff's injuries were the direct consequence of [defendants']failure to provide adequate protection against a risk arising from a physically significantelevation differential' " (Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18NY3d at 10, quoting Runner vNew York Stock Exch., Inc., 13 NY3d 599, 603 [2009]; accord Oakes vWal-Mart Real Estate Bus. Trust, 99 AD3d at 37-38; Davis v Wyeth Pharms.,Inc., 86 AD3d at 908). Notably, liability under Labor Law § 240 (1) is notlimited to situations in which a falling object directly hits the worker (see Runner vNew York Stock Exch., Inc., 13 NY3d at 604 [the plaintiff was exposed to agravity-related risk while moving a heavy reel of wire down a flight of stairs]; Oakesv Wal-Mart Real Estate Bus. Trust, 99 AD3d at 37).
Initially, we agree with Supreme Court's finding here that plaintiff's injuries flowed"directly from the force of the falling [membrane] roll on the T-handle, causing thehandle to strike plaintiff." Notwithstanding that plaintiff was not directly struck by themembrane roll that fell, his injuries were the result of his exposure to the risk of gravitywhile working with heavy materials that were hoisted above the roof's surface on whichhe was standing (see Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d at10; Runner v New York Stock Exch., Inc., 13 NY3d at 604). Thus, it is necessaryto determine whether the risk of injury arose from a physically significant elevationdifferential so as to require defendants to provide plaintiff with protection by means of asafety device as set forth in the statute. We disagree with Supreme Court's finding that itdid not.
In determining whether an elevation differential is physically significant or deminimis, we must take into account " 'the weight of the [falling] object and the amount offorce it was capable of generating, even over the course of a relatively short descent' "(Oakes v Wal-Mart Real Estate Bus. Trust, 99 AD3d at 37, quoting Runner vNew York Stock Exch., Inc., 13 NY3d at 605). Here, for purposes of defendants'motion, plaintiff established that a membrane roll weighing between 600 and 800 poundswas hoisted by the roll carrier to a height of [*3]approximately 1½ feet off the roof's surface at thetime of the accident. In our view, despite the relatively short distance that the membraneroll fell, it constituted a significant elevation differential given its substantial weight andthe powerful force it generated when it fell, so as to require a safety device as set forth inLabor Law § 240 (1) (see Wilinski v 334 E. 92nd Hous. Dev. Fund Corp.,18 NY3d at 10; Runner v New York Stock Exch., Inc., 13 NY3d at 605; seealso Oakes v Wal-Mart Real Estate Bus. Trust, 99 AD3d at 37; Marrero v 2075 Holding Co.LLC, 106 AD3d 408, 409 [2013]; Kempisty v 246 Spring St., LLC, 92 AD3d 474, 474[2012]; DiPalma v State of NewYork, 90 AD3d 1659, 1660 [2011]). Accordingly, Supreme Court should nothave granted defendants' motion for summary judgment dismissing the Labor Law§ 240 (1) cause of action on this basis.
Nonetheless, contrary to plaintiff's contention, Supreme Court properly denied hismotion for summary judgment with respect to the Labor Law § 240 (1) claim, as aquestion of fact exists as to whether defendants failed to provide adequate protection andwhether such failure proximately caused his injuries. In this regard, plaintiff asserted thatno safety device was provided and that, even if the roll carrier could be considered asafety device, it was inadequate to safely hoist the membrane roll from the roof's surface.Through the affidavit of Javier Negron, an assistant supervisor on the construction sitewho was present when plaintiff was injured, plaintiff offered proof that the roll carrierslipped on the icy surface, causing the roll to fall onto the roof's surface which, in turn,forced the T-handle off the lifter, causing it to rapidly rise and hit plaintiff on the head.
Plaintiff also submitted the affidavit of his expert, Richard Pikul, a civil/structuralengineer. In Pikul's opinion, the slippery condition of the roof allowed the roll carrier toshift, causing it to come out of balance under the weight of the membrane roll, and it"failed to maintain the elevated weight in a stable position." Pikul further opined that"the roll carrier by itself was an inadequate device to maintain the roll in a stationary,stable, elevated position" and, therefore, plaintiff should not have used the roll carrierwithout additional safety devices as listed in Labor Law § 240 (1). Pikul explicitlyconcluded that "plaintiff's injuries were the direct consequence of a failure to provideadequate protection against the risk of the roll carrier failing to maintain the elevatedposition of the membrane." Considering this evidence and the undisputed fact that theroll carrier did not maintain the membrane roll at the height to which it was hoisted,plaintiff made a prima facie showing that defendants' failure to provide adequate safetydevices proximately caused plaintiff's injuries (see Kropp v Town of Shandaken, 91 AD3d 1087, 1090[2012]; Georgia vUrbanski, 84 AD3d 1569, 1570 [2011]), shifting the burden to defendants topresent evidence that they furnished plaintiff with adequate protection.
To that end, defendants submitted, among other things, the affidavit of Lyle Hogan, acivil engineer and registered roof consultant, who had experience with the roll carrierdevice involved in this accident. Hogan concluded that the roll carrier is an adequatesafety device and, after inspecting it, determined that it did not fail, collapse or slip.Moreover, he stated that he was "not aware of any safety device . . . thatwould have prevented this accident." Considering the conflicting evidence, questions offact exist as to whether plaintiff's injuries were proximately caused by the lack of a safetydevice of the kind required by the statute to prevent summary judgment on the LaborLaw § 240 (1) claim (see Wilinski v 334 E. 92nd Hous. Dev. Fund Corp.,18 NY3d at 10; Kropp v Town of Shandaken, 91 AD3d at 1090).
Turning to plaintiff's claims under Labor Law § 241 (6), he was required todemonstrate that defendants violated a provision of the Industrial Code that imposed aspecific duty (see Ross [*4]v Curtis-PalmerHydro-Elec. Co., 81 NY2d at 501-502; Oakes v Wal-Mart Real Estate Bus.Trust, 99 AD3d at 40). With respect to his claim premised upon a violation of theregulation requiring safety measures to prevent or rectify slipping hazards (see 12NYCRR 23-1.7 [d]), plaintiff offered unrefuted evidence that the roof was slippery withpatches of black ice. However, whereas plaintiff's expert opined that the slipperycondition was a cause of the accident, defendants' expert concluded otherwise based onvarious tests he conducted. Thus, Supreme Court properly determined that there aretriable issues of fact and denied the parties' respective motions for summary judgmentwith respect to a violation of this regulation (see Oakes v Wal-Mart Real Estate Bus.Trust, 99 AD3d at 40-41).
Nor do we discern any error in Supreme Court's dismissal of plaintiff's Labor Law§ 241 (6) claim premised upon a violation of 12 NYCRR 23-1.8 (c) (1), pertainingto the provision of protective headgear.[FN2]Under the circumstances presented here, plaintiff failed to raise a triable issue of fact asto whether he was exposed to the hazards of a falling object or head bumping againstwhich this regulation was designed to protect (see Spiegler v Gerken Bldg. Corp., 57 AD3d 514, 517[2008]; Modeste v Mega Contr.,Inc., 40 AD3d 255, 256 [2007]; compare Cantineri v Carrere, 60 AD3d 1331, 1333 [2009];Marin v AP-Amsterdam 1661Park LLC, 60 AD3d 824, 826 [2009]).[FN3]
To the extent not specifically addressed herein, the parties' remaining claims havebeen considered and are either academic or without merit.
Lahtinen, J.P., Spain and Egan Jr., JJ., concur. Ordered that the order is modified, onthe law, without costs, by reversing so much thereof as granted that part of defendants'motion for summary judgment dismissing the Labor Law § 240 (1) cause ofaction; motion denied to that extent; and, as so modified, affirmed.
Footnote 1: A roll carrier consists ofa horizontal steel pipe that is inserted through the membrane roll and is supported at eachend by a lifter. As described by plaintiff's expert, each lifter "consists of two wheels uponwhich a steel frame is attached, one end consisting of a T-shaped handle and the otherend . . . is configured with a steel eye hook." When the steel pipe is loadedwith the membrane roll and the T-handles are pushed down, the lifters engage theeye-hooks and act as levers, lifting the pipe and membrane roll from the surface of theroof so that the material can be dispensed from the roll for the workers' use.
Footnote 2: Plaintiff has abandonedany challenge to that part of Supreme Court's order that dismissed the Labor Law §241 (6) claim premised upon 12 NYCRR 23-1.28 (c) by failing to address it in his briefon appeal (see Jock v LandmarkHealthcare Facilities, LLC, 62 AD3d 1070, 1074 n 2 [2009]).
Footnote 3: Notably, plaintiff'sexpert did not indicate that the work being performed subjected plaintiff to the type ofhazards that would have required the use of a hard hat (see Landers v 1345 LeaseholdLLC, 100 AD3d 576, 577 [2012]).