State of New York
Supreme Court : County of Monroe

- against -

Index No. 2000/7124

This opinion is uncorrected and is subject to revision in the official Reports

ANDREW V. SIRACUSE, J.

The plaintiff in this Labor Law § 240 (1) case has brought two motions. One may be dealt with simply: it seeks to discontinue the action as against Tri-County Mechanical. There was no opposition to this motion, and it was granted at oral argument. An appropriate order is already being circulated, and it will not be treated in the remainder of this decision.

The plaintiff's other and more contentious motion is for partial summary judgment for liability under Labor Law § 240 (1) against defendant Benderson Development Co., the owner and construction manager of the premises where plaintiff was injured. In addition to opposing this motion, Benderson has cross-moved to dismiss the plaintiff's causes of action alleging violations of Labor Law §§ 200 and 241 (6) and for common law negligence. The plaintiff has not responded to the cross-motion, which the court grants; this is a Scaffold Law case in its purest form.

Plaintiff was working in the interior of a construction project, transporting spools of wire up to an open mezzanine area for storage at the end of the work day. The mezzanine was approximately 20 feet above a concrete floor, and plaintiff used a ladder and then pulled himself up to the mezzanine surface to place the spools. He had all but reached the mezzanine with the last spool when the ladder vanished from under his feet, as he later recalled. Though he tried to grab on to the mezzanine to keep from falling he ended up on the floor and partially on top of the ladder, sustaining serious injuries.

Although the plaintiff's fall itself was unwitnessed, the circumstances do not preclude summary judgment. Another worker deposed that he heard the crash and turned around to see the plaintiff lying in agony, partly on the ladder. The plaintiff's own testimony is consistent, and though he did not know why or how the ladder moved out from under him he is not required to establish these facts. It is clear that the ladder failed to meet the 'core objective' of the statute, which is to keep workers exposed to gravity-related risks from falling (Gordon v Eastern Railway Supply, 82 NY2d 555, 561).

Defendant Benderson Development has raised numerous objections and defenses, arguing that there are questions of fact that require a jury trial on liability. None of the alleged questions of fact are relevant to the defendant's liability, however. Most appear to arise from a misinterpretation of the Court of Appeals decision in Weininger v Hagedorn and Co. (91 NY2d 958). As this court has noted before (in Secord v Willow Ridge Stables, 179 Misc 2d 366, and From absolute to relative liability: recent changes in the Scaffold Law, New York Law Journal, March 10, 1999 and www.netacc.net/~amsir/1999_LL240_art.html), that case does not change the standards for liability in Scaffold Law cases, holding only that a jury trial is required if there is a genuine issue of fact as to the possibility that plaintiff's own actions were the sole proximate cause of the accident. So long as the failure of safety equipment is part of the causal chain which leads to the injury, section 240 (1) attaches.

These are the defendant's objections:

Plaintiff does not know how he fell. That is, the plaintiff has no theory or explanation for the sudden disappearance of the ladder. It is sufficient, however, for the plaintiff to show that the ladder was suddenly unavailable to support him, and he has done so through his own testimony and that of the witness who saw him lying on the ladder on the floor. Any possibility that plaintiff's acts were the sole proximate cause of his injuries would be entirely speculative, without any foundation in the evidence presented. Even if the plaintiff had mistaken the location of the ladder, stepped into air, and fell on top of the ladder, knocking it down along with him, his acts would be merely negligent. It is well settled that the plaintiff's negligence is 'of no consequence' in Section 240 cases (Rocovich v Consolidated Edison, 78 NY2d 509, 513) . The court hastens to add that no such account is implied by the record.

It is unclear if the ladder was secured. This is indeed a question of fact, but it is completely irrelevant to the issue of the defendant's liability. While there is diverging testimony on whether the ladder was wired at the top and/or properly secured at its base, it failed to remain in place as the plaintiff used it regardless of the presence or absence of wiring. Since the ladder fell and did not support plaintiff, any securing wire actually there was clearly inadequate.

There is conflicting testimony on how the ladder was placed vis a-vis the mezzanine. This is also true, but it is also irrelevant. Whether the ladder projected two or four feet above the mezzanine floor has no bearing on its performance in keeping the plaintiff from falling. Construed most generously to the defendant, it might raise a question as to the way the plaintiff got from the ladder to the mezzanine floor, but this would be relevant only if his negligence were an issue. Since this is a Labor Law § 240 (1) case, liability is absolute regardless of the plaintiff's negligence. Once again, it is necessary to add that there is no evidence of any such negligence.

Whether a defect in the ladder caused its collapse or the damage seen to the ladder was caused by the plaintiff's striking it as he fell. There was damage found on the ladder after the accident, and it is unclear if this damage was a cause of the collapse or a result of the fall. But even if the ladder were otherwise intact, it failed to keep plaintiff from falling. Plaintiff is not required to show a particular defect in order to recover. This repeats in its essentials the argument first raised, and may be answered the same way: if the plaintiff had missed his step and fallen on top of the ladder, thus damaging it, his conduct would still be merely negligent. In any event, there is no evidentiary support for this speculative scenario.

The ownership of the ladder is unclear. This is not relevant for Benderson's § 240 (1) liability, which as an owner (and general contractor as well) is statutory and 'flat and unvarying' (Koenig v Patrick Constr. Corp., 298 NY 313, 318) regardless of the particular subcontractor whose defective equipment or work practices were the immediate cause of the injury.

Thus, the defendant has failed to show any reason to withhold summary judgment to the plaintiff on the issue of liability under Labor Law § 240 (1), though his claims as to the other sections of that law and under common law should be dismissed. Mr. Heilman may draft an order so stating, with costs.

DATED: Rochester, New York

March 4, 2002

Andrew V. Siracuse, J.S.C.

This opinion is not available for publication in any official or unofficial reports, except the New york Law journal, without the approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

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