Cohen v. Memorial Sloan-Kettering Cancer Center , 850 N.Y.S.2d 435 ( 2008 )

OPINION OF THE COURT

Saxe, J.

Labor Law § 240 (1) requires that adequate safety devices be provided to workers for tasks that “entail a significant risk . . . because of the relative elevation at which the task must be performed” (see Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]). The statute directs that the devices must be “so constructed, placed and operated as to give proper protection to a person so employed” (Labor Law § 240 [1]), explicitly recognizing that a defect in a device may derive not from its construction but from the way in which it is placed at the site. If a worker at an elevated height is injured in a fall which is proximately caused by the inadequacy of the provided device or its placement, the owner and contractor are subject to absolute liability under the statute (Bland v Manocherian, 66 NY2d 452, 460 [1985]). Moreover, the provision requires that the device made available must not only allow the worker to safely perform the work at an elevation without falling (id.), but also to safely ascend to the necessary height, and safely descend back to the floor thereafter (see Potter v NYC Partnership Hous. Dev. Fund Co., Inc., 13 AD3d 83, 84 [2004]). We hold that plaintiffs should have been awarded summary judgment on their cause of action under Labor Law § 240 (1), because the safety device made available to perform the assigned task at an elevation could not be properly placed at that spot in a position that would provide adequate protection to the worker from the risk of falling when he descended the ladder.

Plaintiff Edward Cohen was employed with an electrical subcontractor on a renovation project at defendant Memorial Sloan-Kettering Cancer Center, for which project defendant HRH Construction was the construction manager. At the time in question, plaintiff was assigned the task of installing metal racks in a particular room’s ceiling. A six-foot A-frame ladder was made available for his use. However, as his testimony established, the ladder was inadequate for the task at one spot in the room, not because it was too short or lacked appropriate parts, but because when the ladder was placed in the only possible position at the location, its first rung was completely blocked and inaccessible. A metal rod protruded from a piece of cast iron installed in the wall as a plumber’s roughing for a toilet to be installed subsequently. Plaintiff was therefore forced to step directly from the second rung to the floor when descending. Moreover, another cast iron rod protruded a few inches behind the ladder’s second rung.

The accident occurred when plaintiff began to step down to the floor from the second rung with his right foot; his left foot got caught between the second rung and the rod behind it, his knee twisted and, while grabbing his knee, he fell to the concrete floor.

Plaintiffs here made the requisite prima facie showing for section 240 (1) liability on the part of the owner and general contractor. They established that the device made available to plaintiff to perform the assigned task was inadequate to safely perform a portion of the work, since the provided ladder did not permit him to safely ascend and descend. In opposing the application, defendants failed to offer any evidence that would justify concluding that an adequate safety device had in fact been made available, that the accident was caused solely by plaintiffs misuse of an adequate safety device, or that the accident was unrelated to the lack of an adequate safety device.

Defendants argue that summary judgment on the Labor Law § 240 (1) claim was properly denied by the motion court, relying on case law that “[wjhere an employee is injured in a fall from a ladder, which is not otherwise shown to be defective, the issue of whether the ladder provided the employee with the proper protection required under this statute is a question of fact for the jury” (Taglioni v Harbor Cove Assoc., 308 AD2d 441, 442 [2003]).

However, while it is appropriate to deny summary judgment where there is an issue of fact as to whether a plaintiff s fall was caused by a failure to provide an adequate safety device (see e.g. id.; Chan v Bed Bath & Beyond, 284 AD2d 290 [2001]), there is nothing here to contradict plaintiffs showing that his fall was proximately caused by his inability to step down one rung at a time because of the absence of a safety device which would allow his safe descent to the floor.

Defendants, and our dissenting colleagues, emphasize that there was no defect in the ladder. However, that is not the nature of the claimed violation of Labor Law § 240 (1). Defendants had the statutory obligation to provide a safety device appropriate to the task. Just as it would be a violation of section 240 (1) to provide a worker with a nondefective six-foot ladder in circumstances where a 10-foot ladder was necessary to perform the assigned task, plaintiff here established that the device he was provided, though not itself defective, and sufficient for the task at other portions of the work site, was insufficient to permit him to safely perform the elevated task at that particular part of the work site.

Of course, if adequate safety devices were made available to the worker, but the worker either does not use or misuses them, there will be no liability (see Robinson v East Med. Ctr., LP, 6 NY3d 550, 554 [2006]); notably, however, “[t]he mere presence of ladders or safety belts somewhere at the worksite” is not enough to establish that the worker was provided with an appropriate device (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 524 [1985]). It is suggested that some other type of device, such as some sort of scaffold, would have served the purpose at that spot. Yet, defendants did not offer any evidence establishing that any more appropriate equipment was made available to plaintiff for the task, or even that—contrary to plaintiff’s assertion—the ladder could have been placed in a manner that would have allowed plaintiff to safely perform the work. Nor does the dissent satisfactorily explain its rejection of plaintiffs suggestion that a device such as a scaffold set up in that portion of the work site would have provided a safe means of performing the work and descending thereafter.

There was no basis to conclude, as defendants suggest, that the sole cause of the accident was plaintiffs own negligence, either in choosing to use that ladder, choosing to place it as he did, or choosing to use it in the manner that he did. To so conclude would turn on its head the purpose of section 240 (1), which is “to protect workers by placing ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor, instead of on workers, who are scarcely in a position to protect themselves from accident” (Rocovich v Consolidated Edison Co., 78 NY2d at 513 [citations and internal quotation marks omitted]).

Defendants, and our dissenting colleagues, also urge that plaintiffs injury resulted from a separate hazard unrelated to the danger that brought about the need for the ladder in the first instance (citing Nieves v Five Boro A.C. & Refrig. Corp., 93 NY2d 914 [1999]). In Nieves, the plaintiffs misstep was caused by something on the ground, not something he was forced to encounter in the course of making his descent. The hazard presented by his working at an elevation was no longer present once he was on the ground. Similarly, in Melber v 6333 Main St. (91 NY2d 759, 764 [1998]), the plaintiff tripped on a conduit protruding from an unfinished floor, and the Court observed that the hazard was not one that section 240 (1) protected against.

Here, in contrast, the hazard was encountered by plaintiff in the course of his descent. The statute directs the owner and contractor to provide safety devices in order to ensure that the worker can safely perform his task at an elevation, and safely descend thereafter; therefore the failure of the provided safety device to give proper protection to allow him to descend without the interference of the dangerous protruding cast iron rods constituted a clear violation of the statute.

Admittedly, there are many situations in which a worker is injured, even when working at a height, and section 240 (1) nevertheless is inapplicable. For example, in Ross v Curtis-Palmer Hydro-Elec. Co. (81 NY2d 494 [1993]), the injury did not result from the failure to protect the worker from the elevation-related risk, but rather, “flowed from a deficiency in the device that was wholly unrelated to the hazard [of elevation]” (id. at 501 [citation and internal quotation marks omitted]), in that the placement of a raised platform forced the plaintiff to work in a contorted position, causing him injury. Or, in Rocovich v Consolidated Edison Co. (78 NY2d at 514-515), the employee who was working on a roof slipped, and his foot and ankle fell into a 12-inch trough on the roof which contained heated industrial oil, the Court explained that the hazard presented by the trough did not entail the type of elevation-related risk which called for any of the protective devices of the types listed in the statute. Indeed, none of the listed devices would have been of any assistance to the plaintiff in Rocovich.

Here, however, plaintiff was caused to fall due to the lack of a proper device, amenable to placement in that spot in a manner that would permit him to avoid the hazard in the course of his descent. Because plaintiff here demonstrated that the ladder provided for him to perform his assigned work was not adequate to the task in the assigned location, and defendants failed to make a showing that the safety device they provided was adequate to the task, or that plaintiff misused or failed to use it, the motion court should have granted plaintiffs’ cross motion for summary judgment on their claim under Labor Law § 240 (1).

The motion court properly found that neither Industrial Code (12 NYCRR) § 23-1.7 (e) (1) nor any other section of the Code applies to this set of facts and properly dismissed the cause of action under Labor Law § 241 (6).

Accordingly, the order of the Supreme Court, New York County (Walter B. Tolub, J.), entered January 5, 2007, which granted defendants’ motion for summary judgment dismissing the cause of action under Labor Law § 241 (6) and denied plaintiffs’ cross motion for summary judgment on their claim under section 240 (1), should be modified, on the law, and plaintiffs’ cross motion for summary judgment on their Labor Law § 240 (1) claim granted, and as so modified, affirmed, without costs.