Meade v. Rock-Mcgraw, Inc. , 760 N.Y.S.2d 39 ( 2003 )

OPINION OF THE COURT

Sullivan, J.

This appeal presents the interplay of two recurring issues in the profusion of litigation spawned by the Scaffold Law, Labor Law § 240 (1). The injured worker contends that the owner and lessees of the construction site where he was injured failed to provide him with any safety devices. On the other hand, the owner/lessees contend that the worker was provided with one of the statute’s enumerated safety devices, which he proceeded to misuse, and that such misuse was the sole proximate cause of his injuries. The matter is before us on appeal from the denial of the worker’s motion for partial summary judgment on liability pursuant to Labor Law § 240 (1).

The record reveals the following. Plaintiff, a journeyman carpenter in the employ of third-party defendant A. Papa John Co., was injured while he was replacing ceiling tiles in a hallway closet on the 44th floor of 1221 Avenue of the Americas, which was undergoing renovation. In attempting to replace three missing tiles in a hallway closet approximately 8 feet high, 30 inches wide and 20 inches deep, he determined that the six-foot ladder he had been using to replace the tiles was too big to use inside the closet and located a five-foot, wooden A-frame ladder, which he described as being in good working order.

Plaintiff initially positioned the five-foot ladder inside the closet with the bottom steps outside of the closet, but determined that it was too big to allow him to do the job safely as he could not fit between the door header and the top of the ladder. He then positioned the ladder against the closet wall in the closed position at a slight angle and checked its stability. In this position, the top of the ladder was approximately three feet from the ceiling. Plaintiff climbed up to the third step and took both hands off the ladder to begin his work on the ceiling when he felt the ladder slide out from under him. Ultimately, plaintiff came to rest on top of the ladder. Plaintiff testified that he was approximately two to three feet off the ground when the accident occurred. Plaintiff denied that the ladder had been placed on uneven ground or that it had been defective. He testified further that the ladder had wood footings but no rubber on the footings.

Plaintiff’s supervisor testified that he arrived at the scene immediately after the accident and found the ladder to be intact and in good working order. He was of the opinion that plaintiff, approximately 5 feet, 10 inches tall, could have opened a six-foot ladder inside the closet, albeit one end of the ladder would have stuck out. He further opined that, based on his experience, plaintiff should have known that using the ladder in a closed position was improper. While the supervisor noticed dried glue on the floor of the premises, he did not notice any on the closet floor after the accident.

After discovery, plaintiff moved for summary judgment against defendants, Rock-McGraw, Inc., the building owner, McGraw-Hill Companies, Inc., the building lessee, and Morgan Stanley & Co., Incorporated, the sublessee of the 44th floor, on his Labor Law § 240 (1) claim, arguing that the ladder was not secured by another worker, that the ladder fell because the floor was slippery and the ladder lacked footings and that defendants had breached their duty to insure that the ladder was placed so as to give him proper protection. In papers submitted in reply, he claimed that defendants failed to furnish him with any safety devices and that he was required to use improper equipment, supporting the latter argument with an expert’s opinion stating that a small platform or a three-foot stool would have been the appropriate safety device.

In opposition, defendants argued that the five-foot ladder was a safety device that, had plaintiff used it properly in the open position, would have provided the necessary protection. They further argued that a question of fact was raised as to whether plaintiff’s improper use of the ladder was the sole proximate cause of the accident. Supreme Court denied the motion on the ground that, while plaintiff established a prima facie case in that defendants failed to secure the ladder, summary judgment was precluded by issues of fact such as, inter alia, whether the ladder would have fully opened inside the closet and, thus, whether plaintiffs improper use of the ladder was the sole proximate cause of the accident. The determination should be affirmed.

It was plaintiffs burden to establish that Labor Law § 240 (1) was violated and that the violation was a proximate cause of his injuries (Kyle v City of New York, 268 AD2d 192, 196 [2000], lv denied 97 NY2d 608 [2002]). Specifically, “Labor Law § 240 (1) requires that safety devices such as ladders be so ‘constructed, placed and operated as to give proper protection’ to a worker” (Klein v City of New York, 89 NY2d 833, 834-835 [1996]). Moreover, “[t]he failure to secure the ladder on which plaintiff was standing against slippage by any means whatsoever constitutes a violation of Labor Law § 240 (1) as a matter of law” (Rodriguez v New York City Hous. Auth., 194 AD2d 460, 461 [1993] [internal quotation marks omitted]; see Wasilewski v Museum of Modern Art, 260 AD2d 271 [1999]). Contrary to Supreme Court’s ruling, however, plaintiff did not establish a Labor Law § 240 (1) violation for failure to secure the ladder. That the ladder was inadequately secured was due to plaintiffs improper use of it, which would not give rise to a Labor Law violation.

Depending on the factfinder’s determination, plaintiff may, however, establish a section 240 (1) violation for failure to provide a proper safety device. Militating against such a finding, of course, is the testimony of plaintiffs supervisor that the six-foot ladder originally provided plaintiff could have fit into the closet with one end sticking out. Even though the supervisor did not express a view as to whether plaintiff could have performed his work, safely or otherwise, with the ladder in that position, in the circumstances, summary judgment is inappropriate since a jury could find that plaintiff was provided with a ladder so constructed as to give him proper protection as required by Labor Law § 240 (1).

The dissenting opinion is replete with the observation that defendants failed to provide plaintiff with any safety device. This is based on plaintiffs deposition testimony that he was told by his supervisor to “find a ladder, just go find a ladder, whatever you can find.” First of all, this argument is not entitled to consideration since plaintiff failed to make this claim until his reply papers on the motion for summary judgment and defendants were thus not afforded an opportunity to respond to it (see Scherrer v Time Equities, 218 AD2d 116, 120 [1995]). In any event, there is no merit to the claim. The supervisor directed plaintiff to find a ladder; a number of them were available at the worksite. There is no requirement that the owner or contractor itself procure the ladder or that the ladder be the owner or contractor’s property. Thus, the dissent’s inability to discern any factual version of the accident to support a conclusion that plaintiffs conduct was the sole proximate cause of his injuries is predicated on an incorrect premise.

Moreover, in suggesting that defendants’ failure to provide plaintiff with a ladder or any other safety device is, in itself, a sufficient basis for the imposition of liability, the dissent ignores the requirement that, for liability to attach, the absence of a safety device must be a proximate cause of the worker’s injury (Felker v Corning Inc., 90 NY2d 219, 225 [1997]; Zimmer v Chemung County Performing Arts, 65 NY2d 513, 519 [1985]). In this regard, defendants have made a showing, sufficient to defeat summary judgment, that plaintiffs own conduct was the sole proximate cause of his injury (compare Tavarez v Weissman, 297 AD2d 245 [2002]). Plaintiff did not speak to his supervisor before setting up the ladder in the closet. It was he who chose to place the ladder against the wall in a closed position, an improper use of the device. In Weininger v Hagedorn & Co. (91 NY2d 958 [1998]), the plaintiff, standing on an A-frame ladder while running wire and cable from one room to another, was injured when the ladder collapsed. The Court of Appeals held that a jury could conclude that the plaintiffs actions were the sole proximate cause of his injuries (see Gomes v State of New York, 272 AD2d 440 [2000]; Vouzianas v Bonasera, 262 AD2d 553 [1999]). Thus, the strict liability benefit of Labor Law § 240 (1) is not available to a worker whose own act in failing to use an otherwise adequate safety device properly is the sole proximate cause of his injury.

It should be noted in passing that other factual issues exist as a result of plaintiffs conflicting accounts of the accident. At his deposition he testified that there was dried glue as a result of the removal of carpet as well as some dust on the closet’s concrete floor, whereas in his supporting affidavit on the motion he stated that the ladder slipped because the floor was slippery. He also testified that he observed wooden footings on the five-foot ladder. In his affidavit, he stated that “the ladder did not have footings.”

Thus, plaintiff’s motion for summary judgment as to liability on his Labor Law § 240 (1) claim was properly denied.

Accordingly, the order of the Supreme Court, New York County (Louise Gruner Gans, J.), entered July 9, 2002, which denied plaintiffs motion for partial summary judgment on liability pursuant to Labor Law § 240 (1), should be affirmed, without costs or disbursements.