Myricks v Hiawatha Realty Corp.
2005 NY Slip Op 51399(U) [9 Misc 3d 1104(A)]
Decided on August 17, 2005
Supreme Court, Onondaga County
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Myricks v Hiawatha Realty Corp.
Decided on August 17, 2005
Supreme Court, Onondaga County
Robert L. Myricks and Margaret Myricks, Plaintiffs,
Hiawatha Realty Corp., ALLIED REALTY CORP., TARKY LOMBARDI, JR., Individually and d/b/a HIAWATHA REALTY CORP., and d/b/a ALLIED REALTY CORP., and FRANCIS T. LOMBARDI, Individually and d/b/a HIAWATHA REALTY CORP. and d/b/a ALLIED REALTY CORP., Defendants.
Alexander & Catalano, LLC
Peter J. Addonizio, Esq., of counsel
Attorneys for Plaintiffs
115 East Jefferson Street, Suite 403
Syracuse, NY 13202
Smith, Sovik, Kendrick & Sugnet, P.C.
Patrick B. Sardino, Esq.
Attorneys for Defendants
250 South Clinton Street - Suite 600
Syracuse, NY 13202-1252
Deborah H. Karalunas, J.
Pursuant to an amended complaint dated February 18, 2004, plaintiffs Robert L. Myricks [*2]and Margaret Myricks brought causes of action against defendants Hiawatha Realty, Corp., et al.
for negligence, violations of NY Labor Law §§ 200, 240 and 241(6), and loss of consortium. The court in a February 25, 2004 order dismissed the negligence and Section 200 causes of action on defendants' motion. By notice of motion dated April 14, 2005, defendants sought summary judgment dismissal of the complaint's remaining causes of action. By notice of cross-motion dated May 2, 2005, plaintiffs sought summary judgment in their favor on the issue of liability on the Labor Law Sections 240(1) and 241(6) causes of action. Oral argument took place at a regular motion term on May 17, 2005. At that time, counsel for plaintiffs agreed that defendants were entitled to summary judgment on the Section 241(6) claim, thus narrowing the scope of the disputed motion to the Section 240(1) cause of action.
Defendants own property located at 204-206 West Water Street, Syracuse, which they leased to Central Allright Parking Corp. ("Allright") for use as a parking lot. On November 9, 2000, plaintiff Robert Myricks sustained an injury at the West Water Street lot while performing duties in the course of his employment for Allright as supervisor of maintenance. Shortly before November 9, 2000, Myrick's employer directed him to erect a fence around the perimeter of the West Water Street lot. Myrick planned to use eight eight-foot-long metal poles and a chain to string between the poles. Allright provided Myricks with a 15-pound pole hammer, a type of sledge hammer requiring the use of two hands, to drive the poles into the ground. On November 9, 2000, Myrick stood on the bed of his Allright truck, which was about five and one-half to six feet above the ground, and swung the pole hammer at a pole placed in the ground. Myrick's swing missed the pole, and he fell off the back of the truck, doing a partial somersault and landing on his back. As a result of the accident, Myrick claims to have suffered disabling back and other injuries.
In his complaint, plaintiff claims that defendants are strictly liable to him for his injuries pursuant to Labor Law's Section 240(1), which states in relevant part that "[a]ll contractors and owners . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed." NY Lab. Law § 240(1) (McKinney 2005). Section 240(1) imposes strict liability upon owners, is aimed at protecting workers who experience "elevation-related hazards," and is "to be construed as liberally as may be for the accomplishment of [its] purpose." Ross v. Curtis-Palmer Hydo-Elec. Co., 81 NY2d 494, 500 (1993) (quotation marks and citation omitted). The statute "was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person." Id. (emphasis in original).
Defendants argue that Section 240(1) strict liability does not apply in this case as a matter of law. First, defendants contend that a parking lot is not a building or structure within the scope of the statute. Defendants' focus on the parking lot rather than the fence and poles that plaintiff was erecting is misplaced. The fence, including the poles with which plaintiff was working, was a structure within the meaning of Section 240(1). See Girty v. Niagara Mohawk Power Corp., [*3]691 NYS2d 822, 823 (4th Dep't 1999) (holding that a utility pole is a structure within the meaning of Section 240(1)); McCloud v. Rochester Gas & Elec., 611 NYS2d 410, 411 (4th Dep't 1994) (same); Lewis-Moors v. Contel of New York, Inc., 573 NYS2d 636 (1991) (same). See also Farrell v. Dick Enters., Inc., 643 NYS2d 852, 852 (4th Dep't 1996) (no issue that installation of a fence falls within Section 240(1)); Brown v. Petracca & Son, Inc., 508 NYS2d 491, 492 (2d Dep't 1986) (same).
Second, defendants contend that Myrick's injury is outside the scope of Section 240(1) because he was performing routine maintenance activities rather than construction. It is clear from the undisputed facts of this case that Myricks was erecting an entirely new structure in erecting the fence rather than repairing or otherwise maintaining an existing structure. The cases defendants cite in support of their position, where workers performed "maintenance" duties such as installing a metal sheet over an existing air conditioning unit, Scott v. Scott's Landing, Inc., 715 NYS2d 135 (4th Dep't 2000), and disabling an existing electric eye, Howe v. 1660 Grand Island Blvd., Inc., 619 NYS2d 227 (4th Dep't 1994), are inapposite. Defendants' argument therefore is without merit.
Finally, defendants argue that Section 240(1) does not apply because plaintiff's fall from the bed of a flatbed truck is not the sort of elevation-related hazard against which the statute protects. Although defendants articulate a bright-line rule that "a fall from a flatbed truck is not covered under Labor Law 240(1)," Def. Mem. of Law at 5, the relevant legal analysis is more subtle. At the core of my consideration are the purposes of Section 240(1), one of which is to protect workers against the "elevation-related risk [of falling due to] the relative elevation at which the task must be performed." Toefer v. Long Island R.R., 795 NYS2d 511, 514 (2005). Thus, a line of cases exists in which workers' falls from flatbed trucks are not within the scope of Section 240(1) because the workers were not performing a task requiring them to be elevated or requiring a relative difference in elevation. See Toefer, 795 NYS2d at 515 (no Section 240(1) liability where worker fell while unloading steel beams from flatbed truck); Piccolo v. St. John's Home for the Aging, 782 NYS2d 475, 476 (4th Dep't 2004) (no Section 240(1) liability where worker fell while washing water service parts on flatbed truck); Rice v. Board of Educ. of City of New York, 755 NYS2d 419, 421 (2d Dep't 2003) (no Section 240(1) liability where worker fell while unloading steel from flatbed truck); Plump v. Wyoming County, 748 NYS2d 195, 196 (4th Dep't 2002) (no Section 240(1) liability where worker fell from flatbed delivery truck); Tillman v. Triou's Custom Homes, 687 NYS2d 506, 509 (4th Dep't 1999) (no Section 240(1) liability where worker fell while unloading cement blocks from flatbed truck). In each of these cases, the task that the worker performed did not require the worker to be elevated. For example, the height of the platform from which a worker is moving a load whether it is a flatbed truck several feet off the ground or the ground itself is immaterial to the task involved. The task therefore does not pose an elevation-related hazard within the purview of Section 240(1).
Analysis of Section 240(1) liability in the above line of cases contrasts starkly from the relevant analysis where the task at hand required the workers to be at an elevated level. For example, in Watson v. Hudson Valley Farms Inc., 714 NYS2d 810, 811 (3d Dep't 2000), Section 240(1) applied where a worker fell five feet from the bed of a flatbed truck on which he was standing in order to paint a trailer parked next to the flatbed because the flatbed truck was "the functional equivalent of a scaffold." The worker's task of painting the side of a trailer required [*4]him to be elevated. Workers' fall from scaffolds are explicitly within the scope of Section 240(1) strict liability because workers use scaffolds to perform work at a relative elevation. Thus, courts recognize that workers' falls from devices they used as scaffolds are within Section 240(1) because the work at issue posed an elevation-related risk against which the statute is designed to protect. See Paul v. Ryan Homes, Inc., 774 NYS2d 225, 227 (4th Dep't 2004) (noting that Section 240(1) applies when a plank serves as the functional equivalent of a scaffold); Borland v. Sampson Steel Fabricators, Inc., 747 NYS2d 634, 635 (4th Dep't 2002) (finding Section 240(1) liability where workers fell from a joist that was "functionally similar" to a scaffold or ladder).
In this case, the flatbed truck from which Myrick fell was the functional equivalent of a scaffold because the work he was performing at the time of the accident required him to be elevated. In order for Myricks to perform his task of pounding eight-foot-long metal poles into the ground, he had to be elevated to a height from which he could effectively swing the pole hammer down onto the poles. Whether Myricks achieved that relative elevation by climbing up onto a flatbed truck, a platform or a scaffold is immaterial. The work Myricks performed at the time of his fall involved an elevation risk and thus was within the scope of Section 240(1) liability.
For essentially the same reasons, I reject defendants' argument that Section 240(1) does not apply because none of the safety devices listed in Section 240(1) were required for Myrick's task of driving the poles into the ground. As noted, Myricks required a scaffold or elevated platform of some type in order to perform his task, and the truck bed served this function. The premise for defendant's argument is that Myricks was not subject to an elevation-related risk, but I hold that he was.
Based on the foregoing, I DENY the summary judgment motion of defendants in its entirety and GRANT summary judgment to plaintiffs on the issue of Section 240(1) liability.
Plaintiffs' counsel is to submit an order on 15 days' notice in accordance with this decision.
DATED: August 17, 2005
Syracuse, New York________________________________
HON. DEBORAH H. KARALUNASJUSTICE OF SUPREME COURT