Jackson v Heitman Funds/191 Colonie LLC

[*1] Jackson v Heitman Funds/191 Colonie LLC 2012 NY Slip Op 51998(U) Decided on October 9, 2012 Supreme Court, Albany County Lynch, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 9, 2012
Supreme Court, Albany County

Donald L. Jackson, Jr., Plaintiffs,

against

Heitman Funds/191 Colonie LLC, and JONES LANG LaSALLE AMERICAS, INC., Defendants.



4182-2010



Anspach Meeks Ellenberger LLP

Attorneys for Defendants

(Kent D. Riesen, Esq. and David M. Stillwell, Esq.)

Main Place Tower, Suite 2400

Buffalo, New York 14202

Powers & Santola, LLP

Attorneys for Plaintiff

By: Daniel R. Santola, Esq.

39 N. Pearl Street 6th Floor

Albany, New York 12207-2785

Michael C. Lynch, J.

Plaintiff, a roofer, was injured while working on the roof at the Colonie Center shopping mall, a facility owned by Defendant Heitman Funds/191 Colonie LLC and managed by defendant Jones Lang LaSalle Americas, Inc. In this personal injury action, plaintiff asserts claims against defendant pursuant to Labor Law §240(1) and Labor Law §241(6)[FN1]. Now, plaintiff moves for partial summary judgment in his favor on the issue of liability and defendants seek summary [*2]judgment in their favor dismissing plaintiffs claims [FN2].

On October 26, 2009, plaintiff was injured when he and his co-workers were installing a rubber roof membrane.The membranes on the job were twenty feet wide by one hundred feet long, delivered folded into rolls that were ten feet long and weighed six to eight hundred pounds each. In order to lift and move a roll to the area where it could be installed, the plaintiff and his co-workers used a device called a Panther Roll Carrier.

In basic terms, a Panther Roll Carrier consists of a metal pipe and two wheel mounted, steel-framed eye-hooks that are engaged by T-shaped "arms" or levers. Each arm has two "legs", a "support leg" and a "push leg". After threading the pipe through the core of a membrane roll, each end of the pipe is attached to the levers. By pressing down on the handles [FN3], the levers engage the wheel-mounted eye-hooks, the pipe and roll is lifted from the roof surface, and the roll can be moved by two workers. In order to install the membrane, the workers could either place the roll flat on the roof and unroll it or; alternatively, pull it from the roll while it was on the roll carrier in the lifted position. Prior to unrolling the membrane from the carrier, each t-shaped handle must be pushed down until the support legs are flush against the roof surface, thereby "locking" the lever arms into place, and suspending the roll eighteen inches above the roof surface (see Negron Affidavit ¶ 16).

On the day he was injured, plaintiff and his co-workers were installing the membrane directly from a roll that was suspended on the roll carrier. The injury occurred in the early morning hours, and plaintiff alleges that there were patches of black ice on the surface of the flat roof where they were working. Plaintiff does not recall what happened, but a co-worker avers that he and plaintiff were standing behind the elevated roll, pushing and spinning it to manually assist the workers who were pulling and unrolling the membrane from the roll.According to the co-worker: suddenly the roll carrier on [plaintiff's] end twisted and slipped on the icy roof surface which allowed the heavy roll to force the T-shaped handle off the stands. Under the weight of the roll falling to the roof surface the T-shaped handle rapidly flipped up and hit Donald on the left side of his head

(Negron Affidavit ¶ 27). Plaintiff was knocked unconscious from the blow and later learned that his skull had been fractured.In a report generated immediately after the accident, plaintiff's foreman, who did not witness the accident, indicated that he thought ice caused the accident and, [*3]in response to a request that he provide a suggestion to prevent similar accidents, he answered, "chock wheels or don't work". (Plaintiff's Exhibit H).

As relevant here, Labor Law §240(1) requires owners to "...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."

Those workplace hazards that the statute was intended to address are "those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured" (Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1 [2011]., quoting Rocovich v Consol. Edison Co., 78 NY2d 509, 514 [1991] ).

In order to determine whether Section 240(1) applies, it is necessary to distinguish between "routine workplace risks" and those "pronounced risks" that arise from work site elevation differentials (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]). "[T]he single decisive question is whether [a] plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Id.). In Runner, the Court of Appeals explained that "the weight of the [falling] object and the amount of force it was capable of generating even over the course of a relatively short descent" should be considered when determining whether an elevation differential is "physically significant" (Id.). As the Appellate Division has explained, however, Runner should not be construed as evincing an "[intent] to impose a blanket rule that a physically significant elevation differential exists whenever an injury is gravity-related or gravity can be said to have contributed to the injury" (Oakes v. Wal-Mart Real Estate Business Trust, ___ AD3d ___, 2012 Slp Opn. 5694 (3rd Dept. July 19, 2012). "Liability under Labor Law § 240 (1) depends on whether the injured worker's task creates an elevation-related risk of the kind that the safety devices listed in section 240 (1) protect against'" (Salazar v. Novalex Contr. Corp., 18 NY3d 134, 139 [2011] [cit. om.]).

Plaintiff contends that this case falls within the "falling object" category of cases, more specifically, that the defendants violated 240(1) because the membrane roll was not adequately secured in its elevated position. In support of his motion, plaintiff submits an affidavit by Richard Pikul, an engineer. Pikul opines that the roll carrier was being used for its intended purpose, but that it failed to maintain the elevated weight in a stable position because it came out of balance as a direct consequence of the workers unrolling the membrane as they were instructed. Under the circumstances present at the time of [plaintiff's] accident, including the slippery condition of the existing roof surface, the roll carrier by itself was an inadequate device to maintain the roll in a stationary, stable, elevated position while the workmen were attempting to unroll membrane from the heavy roll...[*4]

(Pikul ¶ 16). Further, Pikul opines, "plaintiff's injuries were the direct consequence of a failure to provide adequate protection against the risk of the roll carrier failing to maintain the elevated position of the membrane" and "plaintiff suffered harm that flowed directly from the application of the force of gravity to the membrane roll, that the roll needed to be adequately secured, and "Under the circumstances present at the time of this accident, including the slippery condition of the existing roof surface...the [roll carrier] should not have been used [in the elevated position], to attempt to unroll the heavy roll of roofing membrane in the manner of a towel dispenser, without the use of additional safety devices of the type listed in [Labor Law §240(1)]...to maintain the handles in a down and safe position.

(¶¶ 18-20).

Here, there is no question that the roll carrier was being used as it was intended to be used and for its intended purpose. In Runner, Supra, the work site was on two different levels and plaintiff's task was to use a jerry-rigged device to lower materials from one level to the lower level. In Strangio v. Sevenson Environmental Services, Inc. (15 NY3d 914)[FN4], plaintiff was engaged in hoisting an object (i.e a scoffold) over his head; and, in Wilcinski, (Supra), plaintiff was engaged in demolition work that exposed him to the risk of material or objects falling from over his head. Here, plaintiff was not engaged in a task that either exposed him to or created an elevation related hazard (see Toefer v. Long Island R.R., 4 NY3d 399 [plaintiff's "horrendous" injury caused when he was struck by an object that flew "either upwards or horizontally" was "not attributable to the sort of elevation-related risk that Labor Law § 240 (1) was meant to address]).

That the roll did not strike the plaintiff is not the determinative point.Viewing the evidence in the light most favorable to plaintiff, here, as in Runner, the injury did flow directly from the force of the falling roll on the T-handle, causing the handle to strike plaintiff. The controlling question presented is whether plaintiff was engaged in a task that exposed him to a hazard that can be characterized as arising from a "physically significant elevation differential" as defined in Runner.Relevant to the question of significance is the weight of the falling object and the amount of force it was capable of generating "even over the course of a relatively short descent" (Runner, Supra at 605). The descent in Runner was four steps; the hazard arose from the task of lowering an eight hundred pound reel down those steps. In Wilcinski, metal pipes that were four inches in diameter and ten feet tall, fell four feet before striking plaintiff; the hazard arose because the metal pipes were left unsecured during a demolition project. By comparison, the roll here was suspended eighteen inches about the roof surface.As recently explained in Oakes, Supra, the fact that the plaintiff's injury tangentially resulted from the effects of gravity does not resolve the core question of whether plaintiff's injury resulted from an elevation hazard within the scope of the statute. [*5]

In Oakes, the plaintiff was injured when a 10,000 pound truss, set upright on the ground, tipped over onto plaintiff, pinning him between two trusses. In concluding that there was "no elevation differential present", the Oakes Court emphasized that "the truss and plaintiff were both at ground level, and they were either approximately the same height or plaintiff was slightly taller than the truss (Oakes, Supra, at * 8). In contrast, while the plaintiff in Wilcinski and the ten foot pipe were both at ground level, the pipe was four feet higher and fell that distance prior to striking the plaintiff. If the focus here is to measure the differential between the height of the falling object and the injured plaintiff, as was done in both Oakes and Wilcinski, then there was no elevation differential here for the Panther Roll Carrier was no higher than plaintiff's knee. The distinction, however, between this case compared to Oakes and Wilcinski, is that the roll itself was elevated eighteen inches off the ground. Measured from that standpoint, in this Court's view, plaintiff's injury does not arise from a "physically significant elevation differential". For this reason, plaintiff's claim under Law Law §240(1) is dismissed.

The parties also seek summary judgment in their favor on plaintiff's claims pursuant to Labor Law § 241 (6). This statute " requires owners and contractors to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor'" (St. Louis v. Town of N. Elba, 16 NY3d 411 [quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502, [1993] [internal quotation marks omitted]). "In order to state a claim under section 241 (6), a plaintiff must allege that the property owners violated a regulation that sets forth a specific standard of conduct and not simply a recitation of common-law safety principles" (Id.). Under Labor Law § 241 (6), plaintiff need not show that the defendant exercised supervision or control over the work site (see Ross v Curtis-Palmer, supra, p 502).

Here, plaintiff alleges that respondents violated 12 NYCRR 23-1.7 (d), which provides that, "[e]mployers shall not . . . permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing."This regulation provides sufficiently concrete specifications to invoke the non-delegable duties of Labor Law section 241(6) (Rizzuto v L.A. Wenger Contr. Co. Inc., 91 NY2d 343 [1998]).

Plaintiff's claim is based on Mr. Negron's affidavit, wherein he avers that there were patches of black ice on the roof making it very slippery (Negron ¶23). He explains that he did not position the roll carrier in the area where they were working when plaintiff was injured, but that he believed that roll carrier slipped on the "icy roof surface".At his deposition, plaintiff confirmed that roof would get "frosty...because of the moisture on the roof" but that to his knowledge, this did not cause a safety concern (Tr. p. 59, 61). Plaintiff also testified that the roll carrier was positioned in an area where the membrane had just been installed, that the new membrane was "frosty" and "slippery" because of the moisture; and, although he couldn't remember what happened, he testified that he "was told that with the frost, the accumulation of the frost, and with them pulling and us pushing at the time, it made it snap back up" (Tr. p. 74).

Defendants contend that they are entitled to summary judgment dismissing plaintiff's Labor Law 241(6) claim premised on 12 NYCRR 1.7(d) because plaintiff's injury was not caused by slippery conditions on the roof (see Memorandum of Law pp. 25-26). In support of this [*6]claim, defendants rely on an affidavit by their expert, Mr. Hogan, who avers that when he tested the roll carrier on a slippery surface, it did move laterally, but "in a manner that still failed to generate toppling as was experienced during the accident" (Hogan Aff. ¶ 8).

In this Court's view, because the record presents questions of fact with regard to (1) whether the surface was icy; and (2) whether the slippery surface was a proximate cause of the plaintiff's injury, neither party has demonstrated entitlement to summary judgement on plaintiff's Labor Law 241(6) cause of action premised on the purported violation of 12 NYCRR 1.7(d) (see Kwang Ho Kim v. D & W Shin Realty Corp., 47 AD3d 616 [2008]; cf. Urbano v Rockefeller Ctr. N., Inc., 91 AD3d 549 [2012]).

Plaintiffs also contend that the defendants violated 12 NYCRR §23 1.8(c), which provides: c) Protective apparel. (1) Head protection. Every person required to work or pass within any area where there is a danger of being struck by falling objects or materials or where the hazard of head bumping exists shall be provided with and shall be required to wear an approved safety hat. Such safety hats shall be provided with liners during work in areas or at such times where the temperature is below 55 degrees Fahrenheit

Here, plaintiff contends that the regulation was violated because plaintiff was not required to wear a hard hat and he was struck in the head.Indisputably, there were no materials stored or work performed overhead on the roofing job. Plaintiff was not struck in the head by a falling object as a result of a "head bumping" hazard. Accordingly, the cited regulation does not apply and defendants are entitled to summary judgment dismissing plaintiff's cause of action pursuant to Labor Law §241(6) to the extent it is premised on 12 NYCRR 23-1.8(c)[1] (Modeste v. Mega Contr., Inc., 40 AD3d 255 [2007])

Plaintiff also contends that defendants violated 12 NYCRR § 23-1.28(c), which provides: 1.28 Hand-propelled vehicles (c) Buggy counterbalance. Loose weights shall not be hung on buggy handles as counterbalances. When counter balance weights are used, they shall be fastened securely to the buggy handles.

According to plaintiff, This section was violated because there were no counterweights attached to the "buggy" (wheeled load support unit) handle (lever arm support leg) to prevent the elevated load from accidentally falling and the handle (lever arm) from flipping and striking [plaintiff] during the unrolling operation

(Santola Affirmation ¶43)

Even accepting plaintiff's premise that the roll carrier was a "hand propelled vehicle" subject to the cited regulation, the regulation does not require the use of counterweights but instead specifically directs how counterweights should be affixed "[w]hen counterweights are used" (Id., [emphasis added]). Accordingly, because it is not disputed that no counter weight balances were used with the roll carrier, plaintiffs have failed to demonstrate that the cited regulation is applicable to the facts of this case. [*7]

The parties remaining arguments have been considered and are either without merit or not necessary to resolve given the above determinations.

Accordingly, based on the foregoing, it is

ORDERED AND ADJUDGED that plaintiff's motion for summary judgment in his favor on his Labor Law §240(1) cause of action is denied; and it is further

ORDERED AND ADJUDGED that defendants' motion for summary judgment dismissing plaintiff's Labor Law §240(1) cause of action is granted; and it is further

ORDERED AND ADJUDGED that plaintiff's Labor Law 240(1) cause of action is dismissed; and it is further

ORDERED AND ADJUDGED that plaintiff's motion for summary judgment in his favor on the Labor Law §241(6) cause of action is denied; and it is further

ORDERED AND ADJUDGED that defendants' motion for summary judgment dismissing plaintiff's Labor Law §241(6) cause of action is granted, in part; and it is further

ORDERED AND ADJUDGED that defendants' motion for summary judgment dismissing plaintiff's Labor Law §241(6) cause of action based on 12 NYCRR §23 1.8(c)

and 12 NYCRR § 23-1.28 (c) is granted; and it is further

ORDERED AND ADJUDGED that defendants' motion for summary judgment dismissing plaintiff's Labor Law §241(6) cause of action based on 12 NYCRR §23 1.7(d) is denied.

This Memorandum constitutes the Decision and Order of the Court. This original Decision and Order is being returned to the attorney for defendants. The below referenced original papers will be filed with the Albany County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provision

of that rule regarding filing, entry, or notice of entry.

Dated:October 9, 2012

Albany, New York

___________________________________

Michael C. Lynch

Justice of the Supreme Court

Papers Considered:

(1)Notice of Motion dated March 6, 2012, with Affirmation in Support (Daniel R. Santola, Esq.) and Exhibits thereto, Affidavit in Support sworn August 29, 2011 (Javier Negron) with Exhibits, Affidavit in Support sworn December 5, 2011 (Richard R. Pikul, PE EngD) with Exhibits, Affidavit in Support sworn February 27, 2011 (Donald L. Jackson) Memorandum of Law;

(2)Notice of Motion dated July 3, 2012, with Affidavit in Support sworn July 3, 2012 ( Kent D. Riesen, Esq.)with Exhibits A-J thereto, Memorandum of Law;

(3)Reply Affirmation dated July 11, 2012 (Daniel R. Santola, Esq.), Exhibits thereto, and Memorandum of Law;

(4)Affidavit sworn August 1, 2012 (Kent D. Riesen, Esq.), Exhibits thereto, Memorandum [*8]of Law.

(5)Correspondence dated August 2, 2012, August 7, 2012, and August 9, 2012. Footnotes

Footnote 1:Plaintiff's counsel advises that plaintiff has withdrawn his cause of action premised on Labor Law §200.

Footnote 2:The Court acknowledges plaintiff's August 2, 2012 objection to the timing of defendants' submissions in reply/support.Under the circumstances presented, and in the absence of any demonstration of prejudice to the plaintiff, the Court will consider all papers submitted on this motion and cross motion (see CPLR 2214(c)).

Footnote 3:Defendants' expert submits an affidavit wherein he avers that the t-handles have to be "pushed down", explaining that [w]hen properly oriented, the dolleys are automatically pushed down by the mass of the roll. If the beam eyehooks are oriented wrong, handles do indeed have to be pushed down and held in that position or they will rise from the roof surface (Hogan Affidavit ¶8).

Footnote 4:In Strangio, the plaintiff was injured when he was struck in the face by the handle of a hand-operated mechanism used to raise and lower a scaffold as he was raising the scaffold. Strangio is therefore similar to Runner but unlike the instant case, inasmuch as plaintiff was not injured while he was using a device to raise an object to a higher level or to lower an object to a lower level.