Egan v Monadnock Constr.
Annotate this CaseDecided on April 4, 2006
Supreme Court, Bronx County
Gerard Egan, Plaintiff,
against
Monadnock Construction, Defendant.
18707/2004
Gilroy, Downes, Horowitz & Goldstein (Michael M. Horowitz of Counsel) for plaintiff.
Landman, Corsi, Ballaine & Ford, P.C. (Christoopher S. Kozak of Counsel) for defendant.
Betty Owen Stinson, J.
This motion by plaintiff for partial summary judgment on the issue of liability under Labor Law § 240(1) is denied. Cross-motion by defendant for summary judgment dismissing plaintiff's entire complaint is granted.
Plaintiff was allegedly injured when an A-frame ladder, on which he was standing, and which was not fully opened, fell out from under him. Plaintiff was employed as a laborer for a masonry subcontractor at a construction site. Defendant was the general contractor for the project.
On the day of plaintiff's accident, all the block walls in the basement of the building under construction had been finished and at least one prefabricated staircase from the basement to the first level had been installed. Plaintiff testified that he covered that staircase opening on the first level to place scaffolding on top of it, so a block wall could be constructed on the first level. When he had to retrieve some outrigger pieces for the scaffolding from the basement where they had been left, he stepped down on the top of an A-frame ladder which had been left partially opened and leaning against one wall of a narrow corridor and climbed down its steps to the basement floor. Plaintiff retrieved the necessary materials and handed them up to a co-worker. He then climbed up the same partially-opened A-frame ladder and attempted to grab a piece of rebar protruding up from the top of the walls to hoist himself out, but the ladder fell over and he fell to the basement floor injuring his elbow. Plaintiff explained that he had to use the A-frame ladder in this way because it was the "only way to get down" into the basement after he had blocked the staircase. (Deposition of Gerard Egan, January 26, 2005, pp.61, 70).
Several workers came down to the basement to help plaintiff up. Plaintiff exited the [*2]basement after his fall by way of a straight wooden ladder that had been supplied by the defendant and was located in another part of the basement. There is testimony that workers from other trades, electricians and plumbers, were also working in different parts of the basement on that day.
Plaintiff sued the general contractor for Labor Law violations and made the instant motion for partial summary judgment on the issue of liability under Labor Law § 240(1) even before discovery was complete. Discovery had been completed, however, and the note of issue filed by the time the motion and defendant's cross-motion for dismissal of the plaintiff's complaint were finally marked submitted.
Summary judgment is appropriate when there is no genuine issue of fact to be resolved at trial and the record submitted warrants the court as a matter of law in directing judgment. Andre v. Pomeroy, 35 NY2d 361 (1974). A party opposing a motion for summary judgment must come forward with admissible proof that would demonstrate the necessity of a trial as to an issue of fact. Friends of Animals v. Associated Fur Manufacturers, 46 NY2d 1065 (1979).
Labor Law § 200 codifies common law and imposes a statutory non-delegable duty on general contractors and owners of property where work is performed to maintain a safe work place for all persons employed on the premises and all others lawfully frequenting the premises. Gasperino v. Larsen Ford, 426 F.2d 1151 (2d Cir. 1970), cert. denied 400 U.S. 941. For liability to apply, an owner or general contractor must have (1) voluntarily assumed and exercised supervision and control over the methods and tools of the worker, and (2) had notice of the defective or unsafe condition. Comes v. N.Y.S. Electric, 82 NY2d 876 (1993).
Labor Law § 241(6) requires owners, contractors and their agents involved in construction, demolition or excavation to see that the work is performed in compliance with specific safety rules and regulations so as to keep safe all persons employed there or lawfully frequenting the premises. This is a non-delegable duty regardless of whether owners or contractors exercise direct supervision or control over the work performed. However, a plaintiff who claims under this statute must plead a specific section of the Industrial Code that defendant is alleged to have violated. Comes, supra.
Labor Law § 240(1) imposes liability on owners and general contractors for failure to provide proper equipment for gravity-related hazards to covered persons. The statute provides, in relevant part, that "all contractors and owners . . . in the erection . . . of a building . . . shall furnish . . . for the performance of such labor, . . . ladders . . . and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed." For liability to attach in a § 240(1) case, violation of the statute is not enough, a plaintiff must also show that the violation was a contributing cause of his gravity-related injury. Blake v. Neighborhood Housing Services of New York, 1 NY3d 280 (2003). Summary judgment for a defendant may be granted when the record establishes conclusively that no § 240(1) violation was shown to be a proximate cause of the fall and the accident was, therefore, caused solely by plaintiff's conduct. Id. (jury finding that ladder was in proper working order and no further devices were necessary was "implicit" finding that fault for plaintiff's fall was entirely his own); Montgomery v. Federal Express Corp., 4 NY3d 805 (2005) (where stairs previously available had been removed and ladders were available on job site, plaintiff's choice to use inverted bucket to climb up and then jump down from motor room was sole cause of his injury). [*3]
In support of plaintiff's motion for partial summary judgment, he offered his bill of particulars, a Supervisor's Accident/Incident report, plaintiff's own deposition testimony, an affidavit by James McKenna, deposition testimony by Joseph Koerner and photographs of an A-frame ladder in a narrow corridor. Plaintiff's bill of particulars set forth his injuries. The Accident/Incident report related how plaintiff was injured and the nature of his injuries.
Plaintiff testified that the photographs offered were taken by his friend and co-worker, Jerry Morris, on the evening of the accident. (Deposition of Gerard Egan, January 26, 2005, p. 33). There were plumbers present in the basement on the day of his accident. Id., p. 39. Plaintiff's job was to supply cinder block and mortar to masons and to erect scaffolding. Id., p. 37. No one gave him instructions on the day of the accident; he knew what needed to be done and he did it. Id., p.40. He was building scaffolding across the stairs so that a wall could be constructed. Id., pp. 66-67, 68-69. After the scaffolding was built, he could no longer use the staircase to get down to the basement because the stairs were blocked by the scaffolding. Id., pp. 65-66. It was the only place the scaffold could be erected. Id. After covering the stairs, plaintiff remembered that he needed some outriggers that were in the basement. Id., p. 161. He did not dismantle the scaffolding to go down and get them, because it was too big a job to dismantle after it had all been set up. Id.
Plaintiff saw an A-frame ladder below in the basement corridor, and "stepped down on it." Id., p. 62. He did not lock the ladder's braces because there was "no room" to open the ladder fully. Id., p. 57. The A-frame ladder shown in the picture is the "exact ladder" he used. Id., pp. 48, 59. It did not extend above the top of the basement wall. Id., p. 60. He had never used an A-frame ladder to go from one level to another before. Id., pp. 70-71. It was the first time he needed a ladder on that project. Id., p. 76. He did not ask for a different sort of ladder because "that one was there already." Id., p. 72. He was unaware if any other ladder was available. Id., p. 73.
Plaintiff retrieved the outriggers and handed them up to James McKenna, a co-worker. He then climbed to the top of the A-frame ladder and was standing on it and trying to grab a rebar to hoist himself out, when the ladder fell to one side and he to the other. Id., pp. 46-47. The ladder fell because it was unsteady and not locked. Id., p. 57. James McKenna saw him fall. Id., p. 83. Plaintiff was "not sure" how he got out of the basement after his fall. Id., pp. 85, 86. Martin McDonnel, Jerry Morris and Danny Brady came down to help him. Id., pp. 89-91.
The affidavit by James McKenna, dated July 6, 2004, stated that, on the day of the accident, the staircase from the basement to the first level was "planked over" and a scaffold set on top. The "only way" to get from the basement to the first floor was to climb an A-frame ladder that was left in the narrow open area below. The A-frame ladder could not be completely opened because of the narrowness of the space. The braces could not be locked. The ladder had no safety shoes, making it shaky and unstable. The basement was about twelve and a half feet deep. The ladder was about nine feet tall. This left a gap of about three and one half feet between the top of the ladder and the top of the basement wall. The only way to get out of the basement was for workers to stand on top of the ladder and hoist themselves up from there. Plaintiff was reaching for rebar to hoist himself up when the ladder went out from under him and he was "thrown up into the air and fell to the ground below." In order to get down to the basement to help him, James McKenna had to "climb on the scaffold that was taking up the [*4]middle of the staircase, lower myself down as far as possible and drop down the remaining several feet to reach him."
Joseph Koerner testified that he was the construction supervisor for the defendant on the day of plaintiff's accident. (Deposition of Joseph Koerner, March 8, 2005, p. 6). If Joseph Koerner saw a safety violation, he would refer it to the foreman of whichever trade was creating the hazard. Id., p. 33. He first became aware of plaintiff's accident when he returned from lunch. Id., p. 33. Plumbers and electricians were there on the day of the accident. Id., pp. 55, 62. Joseph Koerner went to the basement around one or two o'clock. Id., p. 65. At that time, workers were planking over the staircase. Id., p. 49. It was still three-quarters open. Id., p. 50. The A-frame ladder in the photographs was marked "JES", which was the name of the plumbing contractor. Id., pp. 68, 71.
In opposition to the motion, and in support of its cross-motion, defendant offered the deposition testimony of James McKenna, Martin McDonnel, Gerard Morris and Daniel Brady, and affidavits by Joseph Koerner and Daniel Brady. James McKenna testified that he was a bricklayer working for the same subcontractor as the plaintiff. His supervisor was "Mark". On the day of plaintiff's accident, James McKenna was building the staircase wall. (Deposition of James McKenna, June 8, 2005, p. 15). There were electricians, plumbers and masons present on that day. Id., p. 17. McKenna was standing on the wooden planks that were covering the staircase when plaintiff fell. Id., p. 19. Plaintiff was climbing the ladder and trying to grab rebar when the ladder slipped. Id. McKenna jumped down to see if he was all right. Id., p. 20. He got down by grabbing rebar, lowering himself and then dropping the rest of the way to the floor. Id., p. 21. The A-frame ladder was six feet tall, leaning against the wall and not fully opened because the hall was too narrow. Id., p. 23. There was only one staircase in the basement. Id., p. 25. McKenna stated that, to get plaintiff out, "I think some of the boys went and got a large ladder and we took him out that way . . . ." Id., p. 25. "They had" that straight wooden ladder from the start of the job so they could get out of the basement "before the floors were put on, or staircases or anything." Id., p. 26. McKenna did not know where the straight wooden ladder was right before the accident. Id. Plaintiff built the scaffolding planking over the staircase. Id., p. 31.
Martin McDonnel was a bricklayer working for plaintiff's employer. (Deposition of Martin McDonnel, June 8, 2005, p.9). He was building a wall in the center of the building. Id., p. 12. There were electricians and plumbers working in the basement on the day of plaintiff's accident both in the morning and the afternoon. Id., p. 12. McDonnel arrived at the scene of the accident perhaps twenty seconds after plaintiff fell. Id., p. 14. McDonnel did not see the A-frame ladder there before the accident. Id., p. 16. He did not remember how he got down into the basement. Id., p. After plaintiff's accident, Danny and Mark told him that if anyone went down into the basement, there was a ladder over in the far corner in the front of the building they should use. Id., p. 22. It was a straight wooden ladder between ten and fifteen feet long. Id., p. 22. Plaintiff used that same ladder to exit the basement after he was injured. Id., p. 23. McDonnel did not know if it was there before plaintiff's accident. Id., 24. He had seen the straight wooden ladder earlier when they were building the basement walls and had used it himself to go up and down. Id., p. 24. He did not see it on the day of the accident. Id. He knew that plaintiff had to have exited by that ladder because, how else could he have gotten out? Id. [*5]The staircase was blocked with planks either the evening before or the morning of the accident. Id., p. 25. McDonnel got out just by climbing back up the scaffolding. Id., pp. 27-28.
Gerard Morris testified that he is a distant cousin of the plaintiff and was working as a laborer on the project, erecting scaffolding and helping the masons. Daniel Brady was his immediate supervisor. Morris had been standing on the planking before plaintiff's accident. Id., p. 17. He got down into the basement by hanging on a piece of rebar, lowering himself into the basement and dropping the last two and one half feet to the basement floor. Id., p. 17. He saw plaintiff on the ground, Jerry McKenna and Martin McDonnel there. Id., p. 22. Mark and Daniel Brady were also there. Id., p. 22. Martin McDonnel came down the same way Morris did. Id., p.22. They all took plaintiff to the opposite side of the building where there was a fifteen- or sixteen-foot straight wooden ladder "erected" and they carried plaintiff up there. Id., p. 23. Morris did not know if the ladder was there before the accident. Id., p. 23. To get plaintiff out, they had to walk from the position in which he was found through a corridor and over into another area and exit up the straight wooden ladder. Id., p. 29. Morris took the photographs of the A-frame ladder and positioned it for that purpose. Id., pp. 31-32. It was not the same ladder as the one which fell with plaintiff on top; it was the same design, but a newer model. Id., p. 32. When asked how many staircases there were in the basement, Morris answered, "From what I had seen, one." Id., p. 34.
Daniel Brady was the labor foreman on the job; he directed the laborers where to go, to clean up jobs and to set up scaffolding. Mark Mallulo, the brick-layer foreman, is Brady's brother-in-law. Plaintiff's employer had a straight ladder on the site. (Deposition of Daniel Brady, June 10, 2005, p. 18). Every trade had ladders on the site, including A-frame ladders. Id., p. 19. The defendant also provided two fourteen-foot access ladders. Id., pp. 20-21. The straight ladder shown in the photograph marked "D-2" is one of those fourteen-foot access ladders. Id., p. 23. There was another access ladder in the front of the building. Id., pp. 27-28. Brady got down into the basement by using the fourteen-foot ladder. Id., p. 30. There were two staircases in the basement. Id., p. 40. Even after the staircases were installed, you would still have straight ladders because you have access points at different parts of the building. Id., p. 41, 42.
Joseph Koerner stated in his affidavit dated May 11, 2005 that he became aware of the accident when he returned from lunch. The defendant's laborer told him that a subcontractor's employee had been hurt and taken to the hospital. Koerner spoke to the masonry subcontractor's general foreman, who said plaintiff fell from a ladder. Koerner completed the accident report that day based on the information given him. He never saw the A-frame ladder. When he went to the location of the accident, the staircase leading to the basement was not covered with planks or blocked by any scaffolding. There were, however, several 2" x 12" planks lying near the stairs. After the accident, workers began planking over the staircase. The first floor concrete level was installed in conjunction with the prefabricated stairs. There were also straight wooden ladders on the site.
Daniel Brady stated in his affidavit dated May 6, 2005 that he arrived several minutes after the accident had happened and plaintiff was still in the basement. On the day of the accident, the basement was finished and concrete was poured for the first floor landing. Straight wooden ladders had been provided for movement between the basement and first floor level. They extended two feet above the first floor per OSHA regulations. Brady spoke to the plaintiff [*6]immediately after the accident and plaintiff told him he was climbing down a straight wooden ladder from the first floor to the basement, facing forward, when he fell. After the accident, Brady saw plaintiff climb out of the basement using the straight wooden ladder.
Defendant has established its entitlement to summary judgment which plaintiff has not refuted with admissible evidence. Defendant demonstrated that plaintiff has not made a prima facie showing necessary for a finding that defendant is liable pursuant to Labor Law § 200. Plaintiff cannot show that defendant had notice of a defective or unsafe condition on the work site, a necessary element of liability. An A-frame ladder in a narrow corridor leaning against a wall does not constitute a defective or unsafe condition. Plaintiff testified that he himself caused the basement stairs to be blocked.
Plaintiff has not made a prima facie showing that defendant violated a specific section of the Industrial Code. A violation of OSHA regulations does not establish liability under Labor Law § 241(6). Schiulaz v. Arnell Construction Corp., 261 AD2d 247 (1st Dept 1999). Plaintiff's citations to the Industrial Code, 12 NYCRR § 23, involve several sections that are inapplicable to the instant fact situation: § 23-1.6 (responsibility of employees to refrain from tampering with personal protection equipment), § 23-1.16 (safety belts, harnesses, tail lines and life lines), § 23-1.17 (life nets), § 23-1.19 (catch platforms) and § 23-5 (general safety standards for scaffolding). Sections 23-1.5 (general responsibilities of employers) and 23-1.7 (protection from general hazards) are too general to serve as a predicate for liability under Labor Law § 241(6). Section 23-1.21(b)(4)(portable ladders used as regular means of access should be nailed down) is immaterial; there is no evidence the portable ladders available on the site for access to the basement had not been nailed down, but even if they were not, there is no allegation that those portable ladders, of failure to secure them, were the cause of plaintiff's injuries. Plaintiff's accident admittedly involved a ladder that was not used for access between levels. See Deposition of Gerard Egan, January 26, 2005, pp. 70-71, 76.
Plaintiff cannot make a prima facie case of defendant's liability under Labor Law § 240(1). Although there are questions of fact as to whether there was more than one staircase available to access the basement of the construction site on the day of plaintiff's accident, questions of fact as to the happening of the accident, whether the stairs previously used by plaintiff were actually blocked at the time of the accident and whether appropriate straight ladders were already set up for use between levels at the time of the accident, they are not material to the disposition of this motion and cross-motion. Assuming for the purpose of these motions that the accident happened exactly as plaintiff described, his failure to ascertain whether there was a safer way down before misusing the A-frame ladder was not reasonably foreseeable and "an intervening act which constituted a superseding cause" for the injury to his elbow. See Montomery v. Federal Express Corp., 307 AD2d 865 (1st Dept 2003), aff'd 4 NY3d 805 (2005)(plaintiff's complaint under Labor Law § 240(1) for injuries incurred when plaintiff jumped down on inverted bucket from elevated height dismissed where, upon finding that stairs to motor room had been removed, "normal and logical response would have been to go and get a ladder or other appropriate safety device to gain access".) There is unrefuted testimony that appropriate ladders were available on the subject construction site, whether they were actually set up or not on that particular day, and plaintiff chose not to ask if one was available or look to see if there was another safe way to access the basement. Instead, he stepped down on a partially [*7]opened A-frame ladder that he acknowledged could not be adequately secured and did not even reach to the first floor level, let alone extend beyond it, and then tried to use the same obviously unsafe and inappropriate way to come back up. By his testimony, his own actions made the staircase unavailable, without even checking to see whether other workers in the basement had any means of coming out. Plaintiff's actions were thus the sole proximate cause of his injuries.
Movant is directed to serve a copy of this order on the Clerk of Court who shall enter judgment dismissing the complaint.
This constitutes the decision and order of the court.
Dated: April, 2006
Bronx, New York
_______________________________
BETTY OWEN STINSON, J.S.C..
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