Hernandez v. Bethel United Methodist Church

Plaintiff was injured November 7, 2002, while working for nonparty Master Fire Prevention Systems, installing fireproofing insulation on new duct work at premises owned by defendant Bethel United Methodist Church of New York. At the time of the accident, plaintiff was standing on the third step of a six-foot A-frame ladder in order to reach the duct work. The ladder was placed on a sheet of plastic that had been put down in order to protect the carpet. Plaintiff stated that, before he began to climb the ladder, he heard and saw the latches on each side lock into place. He was working alone in the room at the time and was the sole witness to his accident.

Plaintiff was using a nail gun to install the insulation and, at the time of the accident, had the nail gun in his right hand and the insulation in his left hand. He leaned to his left while standing on the third step of the ladder, in order to affix the insulation with the nail gun, and the ladder began to move unsteadily. The feet of the ladder on the right side then came off the ground and he started to fall. He tried to grab the ladder with his left arm in order to stop himself from falling, but continued to hold onto the nail gun with his right hand. He fell down the ladder and both of his feet landed on the first step. As he was falling, the nail gun hit one of the steps and a nail from the gun entered plaintiff’s right eye. Plaintiff was not wearing goggles or any protective eye covering at the time of the accident.

Plaintiff initially brought this suit alleging causes of action for negligence and violations of Labor Law §§ 200 and 241 (6). He later moved to amend the complaint to assert a cause of action for violation of Labor Law § 240 (1) and for summary judgment on the issue of liability pursuant to that section. In support of the motion, plaintiff submitted his deposition testimony and his own sworn affidavit.

At his deposition, plaintiff testified that he was leaning to the left and the ladder “shook and wobbled.” He also clearly stated that he felt the ladder shaking and wobbling before two of the legs came off the ground. He acknowledged that he could have moved the ladder a foot closer to where he was working, but noted that he had previously been able to reach in that manner without incident.

In his affidavit, plaintiff again asserted that he leaned to his left to install the insulation and felt the ladder shaking and wobbling before the legs came off the ground. He also stated that there were no rubber grips or safety feet on the bottom of the ladder, nor was the ladder secured or fastened in any manner. In addition, plaintiff stated that no one was holding the ladder and that no safety devices of any kind were provided or made available to protect him from falling.

Supreme Court granted plaintiff’s motion to amend the complaint but denied his motion for summary judgment, finding triable issues of fact as to whether the ladder afforded proper protection and whether plaintiff’s actions were the sole proximate cause of the accident. Plaintiff subsequently moved to reargue the motion for summary judgment. Supreme Court granted reargument and granted plaintiff’s motion for summary judgment on the issue of liability under section 240 (1), without elaboration.

“Where a ladder is offered as a work-site safety device, it must be sufficient to provide proper protection. It is well settled that [the] failure to properly secure a ladder, to ensure that it remain steady and erect while being used, constitutes a violation of Labor Law § 240 (1)” (Montalvo v J. Petrocelli Constr., Inc., 8 AD3d 173, 174 [2004] [citations and internal quotation marks omitted]). “It is sufficient for purposes of liability under section 240 (1) that adequate safety devices to prevent the ladder from slipping or to protect plaintiff from falling were absent” (Orellano v 29 E. 37th St. Realty Corp., 292 AD2d 289, 291 [2002]). Thus, “where the owner or contractor has failed to provide adequate safety devices to protect workers from elevation-related injuries and that failure is a cause of plaintiff s injury, ‘[n]egligence, if any, of the injured worker is of no consequence’ ” (Orellano, 292 AD2d at 291, quoting Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991], and citing Zimmer v Chemung County Performing Arts, 65 NY2d 513, 524 [1985]).

Plaintiff satisfied his prima facie burden by establishing that he was using the ladder to install fireproofing in the course of his employment, that the ladder was shaking and wobbling, that the feet of the ladder came off the ground and that defendant failed to provide plaintiff with adequate safety devices or to properly secure the ladder. Under these circumstances, plaintiff cannot be deemed the sole proximate cause of his injuries.

Contrary to defendant’s argument, plaintiffs affidavit is not inconsistent with his deposition testimony. Plaintiff was asked at his deposition whether he “fe[lt] anything before the legs came off the ground?” His response was, “The shaking and the wobbling.” Plaintiffs previous statement that he “was leaning to [his] left so the right two legs were coming off the ground” was made in response to a question asking whether the feet of the ladder stayed in place. The most reasonable interpretation of his answer is that he was indicating which of the ladder’s feet left the ground, not that the feet came off the ground due to his movement. He did not state that the feet left the ground before the shaking and wobbling. In fact, both plaintiff’s subsequent testimony and his affidavit clearly indicate that was not the case.

The dissent states that plaintiff had “two options”—either to reposition the ladder or to direct another worker to hold his ladder while he worked. However, the Labor Law does not require a plaintiff to have acted in a manner that is completely free from negligence. It is absolutely clear that “if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it” (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 290 [2003]).

Here, plaintiff established that defendant’s failure to provide adequate safety devices or to properly secure the ladder was a contributing cause of his accident. In opposition, defendant was unable to raise an issue of fact whether plaintiff was the sole proximate cause of the accident. Thus, plaintiff is entitled to summary judgment on the issue of liability under Labor Law § 240 (1). Concur—Lippman, P.J., Gonzalez and Sweeny, JJ.