Jones v Lehr Constr. Corp.

[*1] Jones v Lehr Constr. Corp. 2006 NY Slip Op 51814(U) [13 Misc 3d 1213(A)] Decided on September 25, 2006 Supreme Court, Bronx County Brigantti-Hughes, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 25, 2006
Supreme Court, Bronx County

Clarence Jones, Plaintiff,

against

Lehr Construction Corp., Kaback Enterprises, Inc. and Euro Mechanical Inc., Defendants.



49355/02

Mary Ann Brigantti-Hughes, J.

Plaintiff moves for summary judgment on the issue of liability under Labor Law 240(1). Third-Party Defendant Sterling Industries, Inc., hereinafter Sterling, and Defendant/Third-Party Defendant Euro Mechanical, Inc., hereinafter, Euro, cross-move for an Order dismissing Plaintiff's claims under Labor Law 240(1).

BACKGROUND

Lehr Construction Corp., hereinafter Lehr, was the general construction manager of a renovation project that subcontracted Kaback Enterprises, Inc., hereinafter Kaback, to perform the installation of air conditioning units. Kaback subcontracted work to Euro, a steamfitting company and Sterling, a sheet metal contractor. [*2]

While standing on a ladder, Plaintiff, an employee of Sterling, was installing an air conditioning duct to an air conditioner that was sitting in a metal angle/box. The metal angle was attached by threaded rods to the ceiling. In order to adjust the height of the air conditioner and get it leveled with the duct, Plaintiff had to loosen screws at the bottom of the air conditioner. After loosening the screws, one of the rods holding the metal angle in place also became loose causing one side of the air conditioner to drop approximately two feet, striking Plaintiff and causing Plaintiff to fall off the ladder. It is undisputed that Plaintiff was injured by the air conditioner and not from the fall from the ladder. Plaintiff argues that Labor Law 240(1) is applicable for two reasons. First, Plaintiff was on a ladder at the time of the accident and should have been provided a safety device such as a belt to prevent the fall. Second, the air conditioner, which was at an elevation, was not secured properly when it struck Plaintiff.

In opposition, Lehr argues that the statute is not applicable because the ladder upon which Plaintiff was standing was not unsafe or defective.

Euro adopts the "recalcitrant worker defense" in alleging that the Plaintiff was instructed to install drip pans. Therefore, Euro argues, that the applicability of Labor Law 240(1) and whether Plaintiff's actions were the sole proximate cause of the accident are questions of fact for the jury. In addition, Euro incorporates the following Sterling arguments by reference.

Sterling argues that the statute is not applicable because the air conditioner fell a miniscule height and the air conditioner, which was previously installed, was not being hoisted or secured at the time of the accident. Sterling cites the following cases as authority for its position: Sutfin v Ithaca College, 240 AD2d 989 (3rd Dept. 1997), Nitz v. Gusmer Corporation, 245 AD2d 929 (3rd Dept. 1997) and Narducci v. Manhasset Bay Association, 96 NY2d 259 (2001).

DISCUSSION

Labor Law 240 (1) is to be construed as liberally as possible for the accomplishment of the purpose for which it was framed. Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494 (1993). The statute provides for extra safety protection to the laborer engaged in certain contemplated occupational hazards. While the contemplated hazards are not spelled out in the statute, they can be inferred from the types of protective devices set forth in the statute. The hazards that are to be afforded the exceptional statutory protection are identified as two distinct sources of elevation risk and are related to the effects of gravity. They entail a significant risk because of the relative elevation at which the task must be performed or at which materials or loads must be hoisted or secured. Toeffer v. Long Island Rail Road, 4 NY3d 399 (2005). Specifically, the statute imposes liability in situations in which a worker is exposed to the risk of falling from an elevated worksite or being hit by an object falling from an elevated worksite. Rocovich v. Consolidated Edison Co, 78 NY2d 509 (1991). The cases involving these elevation type risks have been described as the "falling object" and "falling worker" cases. Toefer at 407. "The extraordinary protections of the statute extend only to a narrow class of special hazards, and do not encompass any and all perils that may be connected in some tangential way with the effects of gravity." Nieves v. Five Boro Air Conditioning & Refrigeration Corp., 93 NY2d 914 (1999). Where a Plaintiff's actions are the sole proximate cause of his injuries, liability will not attach. Weininger v. Hagedorn & Co., 91 NY2d 958 (1998).

With respect to the "falling worker" claim, in order to impose absolute liability, Plaintiff must show that the worker's injuries were proximately caused by the absence or inadequacy of a type of safety device enumerated in the statute. Felker v. Corning Inc., 90 NY2d 219 (1997) and [*3]Rocovich at 513. In the instant case, the "falling worker" liability is not applicable as Plaintiff did not allege that the ladder, which he was standing on malfunctioned and he was not injured as a result of the fall. Felker at 224. Since the ladder had no legally sufficient causal connection to Plaintiff's injuries, it could not be deemed inadequate under these facts. Narducci at 269. Contrary to Plaintiff's contentions, a safety belt was not necessary as the provision of a safety belt would not have prevented the air conditioning unit from striking Plaintiff and the lack of a safety belt was not the cause of Plaintiff's injuries.

With respect to the "falling object" claim, the falling of an object is related to a significant risk inherent in the relative elevation at which materials or loads must be positioned or secured. Narducci at 268. In order to prevail on a falling object claim, the Plaintiff must therefore show that while an object was being hoisted or secured, it fell because of the absence or inadequacy of a safety device of the kind enumerated in the statute. Id. An object falling from a miniscule height is not the type of elevation-related injury that this statute was intended to protect against. Schreiner v. Cremosa Cheese Corp, 202 AD2d 657 (1994). Instead, the statute encompasses extraordinary elevation risks, not the usual and ordinary dangers of a construction site. Nieves at 916.

In the instant case, Labor Law 240(1) is implicated. The fact that the load or object was not being hoisted or secured at the time of the accident, or that the object had been previously secured is not detrimental to Plaintiff's claim. See generally, Outer v. City of New York, 5 NY3d 731 (2005) (unsecured dolly fell from height and struck Plaintiff at a lower track level); Cammon v. City of New York, 21 AD3d 196 (1st Dept. 2005) (unsecured timber was propelled into the air and struck Plaintiff at ground level); Orner v. Port Authority of New York and New Jersey, 293 AD2d 517 (2nd Dept. 2002) (unsecured waterproofing material fell from roof and struck Plaintiff at ground level); Ortlieb v. Town of Malone, 307 AD2d 679 (3rd Dept. 2003) (unsecured pipe rolled off ground and struck Plaintiff in trench); Ullman v. Musall, 306 AD2d 813 (4th Dept. 2003) (drywall struck Plaintiff positioned at a lower level); Faldetta v. State of New York, 7 Misc 3d 1018(A) (Ct. Claims 2005) (unsecured 10 to 23 foot beam tipped over and struck Plaintiff at ground level).

The determining factor is that Plaintiff was working with the air conditioner at the time that it fell, there was a height differential between the Plaintiff and the air conditioning unit and that there was a risk that the air conditioning unit could fall on the Plaintiff and cause injuries. Thus, the air conditioning unit was a "load that required securing for the purposes of the undertaking at the time it fell." See Narducci at 268. In this particular situation, it is of no avail that the air conditioning unit dropped only a couple of feet or 10 feet to the ground. The air conditioning unit needed to be adequately secured and there needed to be an adequate protective device to shield the Plaintiff from the harm resulting from the application of the force of gravity to the air conditioner. Ross at 501. Thus, the falling air conditioner was a type of hazard contemplated by the statute and this was a "situation where a hoisting or securing device of the kind enumerated in the statute would have been necessary or even expected." Narducci at 268. As such, Plaintiff met its burden in establishing that the air conditioning unit fell because of the absence or inadequacy of a safety device of the kind enumerated in the statute for securing or lowering a load. Salinas v. Barney Skanska Construction Co, 2 AD3d 619 (2nd Dept. 2003).

In opposition, there was not sufficient evidence presented to require a trial of the liability issue. Beauchesne v. City of New York, 261 AD2d 145 (1st Dept. 1999). Nor was evidence presented that a safety device was in place to prevent injuries in the event of that the air conditioning units became unsecured and/or fell. In addition, the recalcitrant worker defense is unavailing. Even if [*4]Plaintiff failed to install the drip pan as instructed, this had no causal connection to Plaintiff's accident and the drip pan would not have prevented Plaintiff's injuries.

Furthermore, Sterling's cases are inapplicable. In Narducci, the Plaintiff was not working at the window from which the glass fell. Unlike Narducci, the Plaintiff in this case was directly working with the air conditioning unit in order to attach the ductwork. Moreover, in order to adjust the height, the Plaintiff had to unscrew and unsecure the air conditioning unit, which then needed to be re-secured. It should have been anticipated that the air conditioning unit could fall. Thus, the air conditioning unit should have been secured by an alternate means.

In Nitz, the Plaintiff was engaged in a fight at the time he was injured. Notwithstanding the fact that the Court found that the barrel that fell on Plaintiff, fell from minuscule height, Plaintiff was not working or engaged in any undertaking with the barrel at the time of the accident.

In Sutfin, the Court found that there was no elevation differential. Plaintiff was located at the same level as his co-worker and the task to be performed was not at an elevation. In the instant case, the task to be performed by the Plaintiff was at an elevation. Accordingly, it is hereby

Ordered, that Plaintiff's motion for summary judgment on the issue of liability under Labor Law 240(1) is granted, and it is further

Ordered, that Third-Party Defendant Sterling Industries, Inc. and Defendant/ Third-Party Defendant Euro Mechanical, Inc.'s cross- motion for summary judgment dismissing Plaintiff's Labor Law 240(1) cause of action is denied.

This constitutes the Decision and Order of this Court.

Dated: September 25 , 2006________________________________

Hon. Mary Ann Brigantti-Hughes, J.S.C