Johnson v Metropolitan Transp. Auth. of State of N.Y.
Annotate this CaseDecided on July 27, 2006
Supreme Court, New York County
Rodney Johnson, Plaintiff,
against
Metropolitan Transportation Authority of The State of New York, MTA NEW YORK CITY TRANSIT and THE CITY OF NEW YORK, Defendants.
104976-2004
Rosalyn Richter, J.
This is an action to recover damages for personal injuries sustained by a worker when he fell from a work platform into a trench below. Plaintiff Rodney Johnson moves, pursuant to CPLR 3212, for partial summary judgment on the issue of liability under Labor Law § 240 (1). Defendants Metropolitan Transportation Authority of the State of New York (MTA), MTA New York City Transit and The City of New York (together, defendants) cross-move, pursuant to CPLR 3212, for summary judgment dismissing plaintiff's Labor Law 240 (1) and 200 causes of action, on the ground that claimant has failed to show facts sufficient to require a trial of any issue.
On the date of plaintiff's alleged accident, October 10, 2003, plaintiff was employed as a carpenter mechanic by Slattery Skanska, Inc. (Slattery), the contractor hired by the MTA to work on a construction project to rehabilitate the 53rd Street & Lexington Avenue subway station. Specifically, plaintiff was building a temporary work platform (platform) inside the south vent trench located within and below the roadway of East 53rd Street between Lexington and Third Avenues in Manhattan. The trench was about a half-block long and contained partially completed walls and an open top. The platform was located between approximately six feet and eight feet above the trench floor. Plaintiff was building the platform from four-by-four-inch timbers and plywood, which he would cut to construct the platform's various parts. The four-by-four-inch timbers, often referred to as "ribs," were placed across the width of the trench and acted like floor joists to support the plywood deck, which was to be laid down as the floor for the elevated platform. When completed, the temporary work platform would be used by construction workers to install forms for the pouring of the trench's concrete walls. Plaintiff testified that photographs taken of the work site correctly depicted the area and the position of the ribs at the time of his accident.
Plaintiff had extensive experience building work platforms on construction sites, and received no direction from a supervisor as to how to construct the platform. At the time of his accident, plaintiff testified that he was standing on one of the wooden ribs in order to take a measurement needed to size the plywood for installation onto the ribs. As he began to crouch down, the rib that he was standing on, and which was not yet nailed down, shifted. Plaintiff then mis-[*2]stepped and lost his balance, which caused him to fall and straddle the rib, before tumbling approximately six feet to the bottom of the trench, where he landed on a pile of scrap timber, sustaining personal injuries.
Plaintiff stated that he was not instructed by anyone at the construction site to use any safety equipment. In addition, other than a hard hat, safety glasses and a reflective vest, which he was wearing at the time of his alleged accident, plaintiff did not observe any safety fall equipment available at the construction site, nor was he provided with any safety fall equipment, such as a harness, lanyard or life netting. Plaintiff also noted that there were no guardrails surrounding the platform that he was working on, nor was there anything to anchor himself to while standing on the ribs.
Slattery's safety manager, Charles Turner (Turner), who was at the accident scene, interviewed plaintiff following the alleged accident and prepared the incident report. The incident report reiterated that plaintiff had mis-stepped, causing him to straddle the four-by-four timber and then fall approximately six feet to the floor of the trench. Turner also stated that a ladder, used by Slattery workers to get in and out of the shaft, was in place approximately 10 feet to the east of where plaintiff was working.
Turner testified that he was not aware of any safety equipment constructed, placed or in operation in the area at the time of plaintiff's alleged accident to prevent plaintiff from falling. Turner also stated that the work that the plaintiff was performing did not require the use of a safety harness, and that he did not have any reason to conclude that plaintiff was performing in an unsafe manner while standing on the ribs installing plywood decking. In addition, Turner asserted that plaintiff was properly using the safety equipment that was provided to him, namely the hard hat, safety glasses and reflective vest.
Manuel Kakkan (Kakkan), an electrical engineer employed by the New York City Transit Authority and involved with the management of the project, testified that he verbally directed Turner to use safety devices and other personal protection equipment when working. He also noted that, although the MTA provided some safety training to Slattery's workers, the safety training was primarily limited to track safety. Kakkan further testified that he had never seen Slattery workers working at heights without using safety lines, and that if he had, he would have stopped them and told them to put on proper protection equipment. When asked how one might build a platform without standing on it while it is being built, Kakkan stated that workers would usually utilize another moving platform, like a Baker's scaffold, or a ladder.
In addition, Kakkan stated that tools and safety supplies, such as ladders, Baker's scaffolds, safety belts, and safety lines were stored on the construction site within a container located in a shanty downstairs in the mezzanine of the subway station.
Plaintiff's alleged accident was witnessed by electrician Robert Gonzalez (Gonzalez), who was working for an electrical subcontractor at the time of plaintiff's alleged accident. He testified that he was standing on a ladder in a pit and looking up, when he saw plaintiff's body fall and straddle the four-by-four cross-timber. Plaintiff then fell backwards six or seven feet into the trench. Gonzalez did not see what plaintiff was doing at the time of the alleged accident, or what plaintiff had been standing on when he fell. Gonzalez stated that he did not observe any safety equipment in use by plaintiff at the time.
" The proponent of a summary judgment motion must make a prima facie showing of [*3]entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact'" (Wolff v New York City Transit Authority, 21 AD3d 956, 956 [2d Dept 2005], quoting Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]). The burden then shifts to the motion's opponent to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact" (Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 [1st Dept 2006]; see also Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]; Grossman v Amalgamated Housing Corp., 298 AD2d 224, 226 [1st Dept 2002]).
Labor Law § 240 (1) is referred to as the Scaffold Law (Ryan v Morse Diesel, Inc., 98 AD2d 615, 615 [1st Dept 1983]). Labor Law § 240 (1) provides, in relevant part:
All contractors and owners and their agents * * * 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.
Liability under Labor Law § 240 (1) turns on whether "proper protection" in the safety equipment provided to the worker is given (see Bland v Manocherian, 66 NY2d 452, 461 [1985]). In other words, " Labor Law § 240 (1) was designed to prevent those types of accidents in which the scaffold ... 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'" (John v Baharestani, 281 AD2d 114, 118 [1st Dept 2001], quoting Ross v Curtis-Palmer Hydro-Electric Company, 81 NY2d 494, 501 [1993]).
Labor Law § 240 (1) imposes absolute liability upon an owner or general contractor for failing to provide or erect safety devices necessary to give proper protection to a worker who sustains injuries proximately caused by that failure (Zimmer v Chemung County Performing Arts, Inc., 65 NY2d 513, 523 [1985]; Correia v Professional Data Management, Inc., 259 AD2d 60, 63 [1st Dept 1999]). The duty imposed by Labor Law § 240 (1) is nondelegable, and an owner or contractor who breaches that duty may be held liable in damages regardless of whether they actually supervised or controlled the work (Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d at 500).
Labor Law § 240 (1) expresses a clear legislative intent to provide exceptional protection for workers against special hazards which arise on work sites which are either elevated or positioned below the level where materials or loads are hoisted or secured (see Rocovich v Consolidated Edison Company, 78 NY2d 509, 515 [1991]). In order to prevail on a section 240 (1) claim, the plaintiff must show that the statute was violated and that this violation was a proximate cause of the plaintiff's injuries (Felker v Corning Inc., 90 NY2d 219, 224-225 [1997]).
Here, it should be noted that, although plaintiff was working below ground level, he still fell from an elevated height, because the platform he was working on was located eight feet above the trench floor (see Ciancio v Woodlawn Cemetery Association, 249 AD2d 86, 87-88 [1st Dept 1998][burial vault installer fell into an open grave from a six-inch wide platform. The Court held that the grave constituted an elevation-related risk, and that the plank positioned over the grave constituted a "scaffold" within the purview of Labor Law § 240 (1)]; see also Tooher v Willets Point Contracting Corp., 213 AD2d 856, 856-857 [3d Dept 1995]). [*4]
Although defendants argue that the height of plaintiff's fall does not bring the accident within the purview of the statute, the extent of the elevation differential may not necessarily determine the existence of an elevation-related risk (Rocovich v Consolidated Edison Company, 78 NY2d at 515). The Scaffold Law does not apply merely because work is performed at elevated heights, but rather applies where the work itself involves risks related to differences in elevation (Brennan v RCP Associates, 257 AD2d 389, 390-391 [1st Dept 1999]).
In addition, the platform, although temporary in nature and in the process of being constructed, still constituted a scaffold within the parameters of Labor Law § 240 (1). In a similar case, Kyle v City of New York (268 AD2d 192, 193-194 [1st Dept 2000]), the plaintiff was attaching prefabricated platforms to the underside of a bridge at the time of his accident, which, once attached, would serve as a work surface for bridge repairs. The Court noted that, as the plaintiff could only perform the work while standing on the platform, and since no alternative scaffolding was provided, the platform constituted a scaffold within the purview of Labor Law § 240 (1) (id. at 198). The Court further stated that Labor Law § 240 (1) applies "even in those situations where the scaffold which is alleged to have failed was in the process of being dismantled or constructed" (id. at 197; see also Pritchard v Murray Walter, Inc., 157 AD2d 1012, 1012-1013 [3d Dept 1990][section 240 (1) applied when plaintiff fell from a scaffold that he was dismantling]); Trillo v City of New York, 262 AD2d 121 [1st Dept 1999].
Further, in the instant case, whether the rib shifted or plaintiff mis-stepped on the rib is of no consequence, as the absence of fall protection was a proximate cause of plaintiff's alleged accident (see Vergara v SS 133 West 21, LLC, 21 AD3d 279 [1st Dept 2005][it did not matter whether plaintiff mis-stepped off the scaffold's side, or the scaffold tipped over. Under either circumstance, the absence of protective devices was the proximate cause of his accident]; Laquidara v HRH Construction Corp., 283 AD2d 169, 169 [1st Dept 2001][where there was no question that the plaintiff's injuries were at least partially attributable to the defendants' failure to provide guardrails, safety netting and other protection, the Court noted that "[t]he precise manner in which plaintiff's fall occurred is immaterial"]).
The defendants assert that they are not liable for plaintiff's alleged injuries under Labor Law § 240 (1), because plaintiff was recalcitrant in not utilizing the safety equipment stored at the construction site. In addition, defendants assert that in order to maintain safety, plaintiff should have been working on a ladder or another scaffold while constructing the platform. Where plaintiff's own actions are the sole proximate cause of the accident, there can be no liability under Labor Law § 240 (1) (Cahill v Triborough Bridge and Tunnel Authority, 4 NY3d 35, 39 [2004][where an employer has made available adequate safety devices and an employee has been instructed to use them, the employee may not recover under Labor Law § 240 (1) for injuries caused solely by his violation of those instructions]).
Here, however, the defense of the recalcitrant worker is not available to defendants. Defendants failed to put forth sufficient evidence to suggest that plaintiff was provided with or even notified of the existence of any safety devices or fall protection available for his use. In addition, there is no evidence in the record that plaintiff received any instruction regarding the use of any safety devices, or that plaintiff refused such instruction. Further, plaintiff testified that he never observed any harnesses, netting or other types of anchors that could have been used while he was constructing the temporary platform. [*5]
In addition, Turner asserted that he was not aware of any safety equipment constructed, placed or in operation at the time of plaintiff's alleged accident. He also noted that the work that plaintiff was performing did not require the use of a safety harness, and that he had no reason to believe that plaintiff was performing in an unsafe manner while standing on the ribs installing plywood decking. Turner also stated that plaintiff was correctly using the safety equipment that was provided to him.
Although Kakkan asserted that ladders, scaffolds, safety belts and safety lines were available to the workers at the construction site, he also stated that these supplies were stored within a container located in a shanty downstairs in the mezzanine of the subway station. The hidden nature of the safety equipment suggests that the use of the equipment was not a priority at the construction site. In addition, Kakkan did not set forth that plaintiff was ever notified of the existence of the container of safety supplies.
Also, defendants assert that in order to maintain safety, plaintiff should have been working on a ladder or another scaffold while constructing the platform. However, plaintiff is an experienced carpenter mechanic with an extensive background in building work platforms. In order to take the measurements needed to close the platform, plaintiff found it necessary to stand on the horizontal rib, and not on a ladder or separate scaffold.
As such, plaintiff is entitled to summary judgment on the issue of liability under Labor Law § 240 (1), as sufficient evidence was presented to show that the platform at issue was being used by plaintiff as a scaffold for the purposes of Labor Law § 240 (1), and that defendants' failure to provide proper fall protection was the proximate cause of plaintiff's alleged injuries. However, as defendants have made the requisite showing of entitlement to summary judgment on the Labor Law § 200 cause of action, and as plaintiff has failed to raise an issue of triable fact as to the Labor Law § 200 cause of action, or even address it in any way, defendants are entitled to summary judgment dismissing the complaint as to that cause of action. Accordingly, it is
ORDERED that plaintiff Rodney Johnson's motion for partial summary judgment on liability is granted under Labor Law § 240 (1); and it is further
ORDERED that defendants Metropolitan Transportation Authority of the State of New York, MTA New York City Transit and The City of New York's cross motion for summary judgment, dismissing the Labor Law § 200 cause of action, is granted, and this cause of action is severed and dismissed; and it is further
ORDERED that the remainder of the action shall continue.
This constitutes the decision and order of the Court.
July 27, 2006
Justice Rosalyn Richter
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