Jordon v Giles Stores, Inc.
Annotate this CaseDecided on December 12, 2006
Supreme Court, Yates County
William Jordon, Plaintiff
against
Giles Stores, Inc., Defendant.
2005-038
Collins Maxwell,LLP
(Alan D. Voos, Esq., of Counsel)
Osborn, Reed & Burke, LLP
(Christian C. Casini, Esq., of Counsel)
W. Patrick Falvey, J.
Defendant moves for summary judgment, dismissing this personal injury action involving an alleged Labor Law violation, when plaintiff fell off the roof at defendant's store on May 7, 2004. Plaintiff opposes the motion, but only as it regards his Labor Law §240(1) claim. There being no opposition by the plaintiff to the dismissal of his other claims, that part of defendant's motion is granted, without discussion.
Further, the defendant's motion to dismiss the Labor Law §240(1) claim is also granted.
The uncontroverted proof is that Alan Giles, president of defendant, contacted A.W. Farrell & Son about a Roof Maintenance Program in 2002. Work was done on the defendant's roof over the next two years. On May 7, 2004, plaintiff, an employee of A.W. Farrell & Sons, was working with Anthony Yeoman, another employee of the roofing company, on the store roof. The two men were laying in strips of rubber roofing membrane material on the flat roof. Plaintiff had been a roofer for 10 years. The van the plaintiff drove to the store was equipped with ladders, safety harnesses, safety ropes with triangle flags, safety cones and tools. The two workers used one of the ladders from the truck to get onto the roof, and set up a "tag line" to pull up their tools, etc. Both were wearing safety harnesses, which are needed to protect a man from falling. The plaintiff's safety harness was in working order that day. Plaintiff used the harness during all the work that day, but when the work was done, and the two men had reloaded the van, they realized that they did not know how much material they had used. This information was needed to figure the amount of the bill to be presented to the defendant. The men decided to go back onto the roof to take measurements of the roofing product they had used. They both [*2]went back, wearing hard hats, but neither wore their safety harnesses or brought back any other safety equipment.
Yeoman said "Hey Bill" and nodded at plaintiff when plaintiff was walking backwards or sideways towards an edge of the roof at 10 feet, 5 feet and then 2 feet from the edge. Plaintiff nodded and smiled, and Yeoman thought plaintiff was aware of his location with respect to the edge of the roof. Yeoman saw plaintiff start to bend down when he was two feet from the edge, and Yeoman put his end of the tape measure down to make his mark, then looked up and plaintiff had fallen. Plaintiff said nothing when he fell. The roof had a raised wall or parapet all around its edge.
The Defendant did not tell the workmen how to do their work; nor did it provide Plaintiff or Yeoman any instructions or supervision. Plaintiff and Yeoman did not tell any employees or officers of defendant that they were going back up on the roof. They did not ask the defendant for safety equipment, as it was provided by their employer. Defendant did not provide Plaintiff or Yeoman with any instructions or supervision.
The defendant argues that the cause of action under Labor Law §240(1) should be dismissed because plaintiff failed to use available safety devices. Robinson v East Medical Center, 6 NY 3rd 550, states that an injured worker's claim under Labor Law §240(1) should be dismissed where a worker does not use adequate safety devices which are available at the job site. Here, plaintiff had a safety harness, safety rope and safety cones. He also had a line with flags, that he could have put around the perimeter to mark the edge of the roof. This equipment had in fact been used by the men when they began their work that day, but it had been returned to the truck prior to the plaintiff's fall.
Defendant further argues that plaintiff was not engaged in an activity protected by the Labor Law at the time of his accident, since he had completed his work and measuring in order to prepare a cost estimate does not fall within the activities protected by Labor Law §240(1).
Karaktin v Gordon Hillside, 143 AD2d 637; Martinez v NYC, 93 NY2d 322.
Defendant also argues that the roofing project only involved routine maintenance, which is not a protected activity under Labor Law §240(1). Abbatiello v Lancaster , 3 NY3d 46; Esposito v NYC IDA, 1 NY3d 526; Nagel v D&R, 99 NY2d 98.
The plaintiff argues in opposition to the dismissal of the Labor Law §240(1) cause of action, that there are questions of fact. He asserts that he was at the store to perform repairs, not maintenance. The 2002 quote for work on the roof was completed May, 2003, and so at the time he fell in 2004, the work was not part of the maintenance program, but was a separate repair of the roof. The 2003 invoice said, "Roofing work performed as quoted. This is the final and last phase."
Alan Giles, in his deposition, said, "They did some maintenance on the west parapet wall and there may have been another leak or spot they repaired." So, even if some of the work was maintenance, some was also repair. Also, Mr Yeoman, who saw the paperwork describing the work to be done that day, testified that it was "Leak call paperwork". He also said the laps on the roof were being repaired because they were leaking. They also did some flashing. Yeoman also said it was a time and materials job. If it was part of a larger, previously quoted project, they would not need to do time and material paperwork, because the price for the work had already been established. Therefore, there is a question of fact as to whether the work was construction work or maintenance work. [*3]
Plaintiff says that his actions cannot be found to be the sole proximate cause of his injuries as a matter of law. Mr. Yeoman was in charge, and so it was his decision to return to the roof after all the safety equipment had been removed. Yeoman never requested that plaintiff use safety devices. So, plaintiff cannot be classified as a recalcitrant worker. Also, Yeoman never warned plaintiff that he was approaching the edge of the roof. There is no proof that plaintiff knew he was working within 10 feet of the edge of the roof after Yeoman determined it was necessary to go back on the roof without safety equipment.
Plaintiff also states that since he has no memory of the day of the accident, he is entitled to a lesser degree of proof pursuant to Noseworthy v NYC, 298 NY 76 and Schecter v Klanfer, 28 NY2d 228.
Furthermore, Plaintiff asserts that he was within the protection of Labor Law §240(1) in that there is a question of fact as to whether he was "repairing" at the time. Bissell v Amherst, 6 AD3d 1229 (4th Dept, 2004).
Plaintiff concludes that his actions cannot be deemed the sole proximate cause of his injuries as a matter of law. In support, Plaintiff cites "recalcitrant" worker cases. DiVincenzo v Tripart, 272 AD2d 904. See also Montgomery v Federal Express, 4 NY3d 805. The Fourth Dept case decided before Robinson is Szuba v Marc Equity Properties, 19 AD3d 1176. Then after Robinson was Whiting v Dave Henning, 28 AD3d 1105. See also Trippi v Main-Huron, 28 AD3d 1069; Andrews v Ryan Homes, 27 AD3d 1197; Tronolone v Prazair, 22 AD 3rd 1031.
In reply, the defendant argues that it is not required to establish that plaintiff was a recalcitrant worker in order to obtain summary judgment. Plaintiff argues that because Plaintiff's safety devices were not present on the roof at the time he fell, he cannot be held to have recalcitrantly refused to use them. But, defendant points to Robinson v East Medical, 6 NY3d 550(2006), under which the nature of the duty mandated by Labor Law §240(1) has effectively been redefined, such that it is no longer necessary to scrutinize the conduct of the plaintiff and determine whether he is recalcitrant. Defendant says the new doctrine could be called the "everything necessary" test. Did the contractor make the work place a safe one by providing the necessary safety devices and making them accessible to workers? If so, workers who failed to make use of the devices have no recourse. The reasons for the worker's failure are irrelevant. See Weiniger v Hagedorn, 91 NY2d 958, where the Court of Appeals first held that the plaintiff's own conduct was the "sole proximate cause" of his injury, and so denied liability under Labor Law §240(1). Courts struggled with the concept of "sole proximate cause", but eventually decided Weininger meant that defendants had to exclude a violation of Labor Law §240 as a cause of the accident in order to escape liability. See Neighborhood Housing v NYC, 1 NY3d 280. But, now, after Robinson, the test is easier to apply. Did the contractor provide all the necessary safety devices and make them accessible to workers? In Robinson, the worker needed an eight foot ladder and told his foreman so. He then used a six foot ladder, stood on the top platform and injured himself when the ladder moved. There were adequate eight foot ladders on the site, plaintiff knew where they were, and they were easily obtainable, but he did not go get one. If adequate safety devices are available at the work site, then one of the prerequisites for liability has not been met, and there has been no violation of the Labor Law. As for the Fourth Department case of Whiting v Henning, 28 AD3d 1105, sited by plaintiff, decided two weeks after Robinson, it appears the Fourth Department was unaware of Robinson, and in any event, Robinson is controlling since it is was decided by the Court of Appeals. [*4]
Defendant asserts that the Noseworthy Doctrine sited by plaintiff does not apply because none of defendant's employees were on the roof with plaintiff at the time of the accident. Noseworthy is based on the theory that it is unfair to permit a defendant who has knowledge of the facts to benefit by remaining mute in a wrongful death action where decedent is unavailable to describe the occurrence. Here, plaintiff only opposes defendant's summary judgment motion concerning Labor Law §240(1), which is a strict liability statute, not a negligence statue, and so Noseworthy does not apply. Also, plaintiff has provided no medical evidence to support his claim of amnesia.
The motion for summary judgment dismissing all causes of action against the defendant should be granted, for the reasons stated by the defendant. The plaintiff does not contest dismissal of the non Labor Law §240(1) claims, and, clearly defendant exercised no control over the plaintiff's activities that day, nor did defendant have actual or constructive notice that the plaintiff was not using proper safety equipment.
As for the Labor Law §240(1) claim, Robinson v East Medical, 6 NY3d 550, states that the Court must look at the employer's conduct, not the plaintiff's. "(T)he owner or contractor must breach the statutory duty under section 240(1) to provide a worker with adequate safety devices, and this breach must proximately cause the worker's injuries. These prerequisites do not exist if adequate safety devices are available at the job site, but the worker either does not use or misuses them." Id., at 551.
Here, there were adequate safety devices at the work site, that is, ladders, full body safety harnesses, each with its own rope grab and safety line, safety ropes, safety lines with triangle flags, and safety cones provided by the contractor. Plaintiff has made no claim that any of this equipment was inadequate, or that there should have been additional safety equipment provided. Thus, as a matter of law, it was plaintiff's own negligent actions - failing to retrieve the safety equipment, and using it, before climbing back onto the roof - which were the sole proximate cause of his injuries. So, even accepting plaintiff's argument that the work that day met the Labor Law §240(1) prerequisite that it not be maintenance work, the plaintiff can not make out a prima facie case for a Labor Law §240(1) violation.
Accordingly, the defendant's motion for summary judgment is granted, in its entirety, with costs and disbursements.
SO ORDERED.
DATED: December 12, 2006
s/______________________________
Hon. W. Patrick Falvey
Acting J.S.C.
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