Scaffold fall no basis for summary judgment unless defect shown.

Friday, November 16, 2007 | 0

By Larry Rogak

Falling from scaffold, without showing of collapse or defect, does not entitle worker to summary judgment.

Pisarcik v. Triboro Bridge & Tunnel Auth. 2007 N.Y. Slip Opinion 52154 (Unpublished)
Decided on Oct. 30, 2007 by the Supreme Court, Queens County.

Plaintiff Rudolf Pisarcik allegedly was injured by falling from a scaffold while performing lead paint and asbestos abatement work on a construction project at the Queens Midtown Tunnel ventilation building. The accident occurred as he was descending from a platform on the upper level of a mobile scaffold by climbing down the horizontal tubes or rungs on the end of the frame of the scaffold. At the time, the scaffold was not equipped with an internal stairway or any other built-in or attached ladder, and the vertical side railings on the end of the frame were about four feet apart.

It was alleged that the injured plaintiff fell 10 feet to the ground when his hand slipped from the horizontal rung, causing him to lose his grip and fall backward. Defendant TBTA is the owner of the ventilation building and hired CDE as the general contractor for the renovation project. TBTA also contracted with LiRo to act as the construction manager. The injured plaintiff was employed by nonparty Benjamin Kurzban, Inc. (Kurzban), a subcontractor hired by CDE. In this action, plaintiffs assert claims sounding in common-law negligence and for violation of Labor Law Sections 200, 240(1) and 241(6).

The Court held, "Plaintiffs have failed to demonstrate their entitlement to judgment as a matter of law on their claim under Labor Law Section 240(1). Labor Law Section 240(1) requires that contractors, owners, and their agents provide workers with appropriate safety devices to protect them against such specific gravity-related accidents as falling from a height. To prevail on a cause of action under Section 240(1), a plaintiff must establish that the statute was violated and that the violation was a proximate cause of the injuries sustained."

"Where, as here, the scaffold supplied to a worker as a safety device did not collapse, move or malfunction, the mere fact that the worker fell off the scaffold is insufficient, in and of itself, to establish that the device did not provide proper protection pursuant to Labor Law Section 240(1). (See, Blake v. Neighborhood Hous. Servs. of New York City, 1 NY3d 280 [2003]; Panek v. County of Albany, 99 NY2d 452 [2003].)

Rather, the issue of whether such a scaffold provided proper protection is generally a question of fact for the jury. Without regard to whether it would otherwise be of probative value, the affidavit of plaintiffs' expert is insufficient to make a prima facie showing of a statutory violation since it is based upon a review of materials that were not submitted to the court in admissible form."

Further, "the conflicting testimony as to whether, in response to a request, plaintiff was told that no scaffold ladder or suitable
extension ladder was available for accessing the scaffold and that he should climb up and down on the scaffold itself raises an issue of fact as to whether plaintiff knowingly failed to use a provided safety device."

However, "Contrary to the contention in TBTA's cross motion, plaintiffs have alleged the violation of an administrative safety regulation sufficient to serve as a predicate for a claim under Labor Law Section 241(6). The requirements of 12 NYCRR 23-5.3(f) concerning the provision of ladders, stairs, or ramps for access to and egress from the platform level of certain metal scaffolds are concrete and specific, and are applicable to the facts of this case. The provisions of 12 NYCRR 23-5.18(c) relating to proper access to a manually propelled mobile scaffold are also specific enough to sustain a section 241(6) claim and
arguably applicable to the facts of this case. Issues of fact exist as to whether the regulations were violated."

Plaintiff's Motion for summary judgment on his scaffold law claim, and the TBTA's cross-motion on that claim, were both denied.

Larry Rogak is an insurance defense attorney in New York. He writes The Rogak Report, a daily insurance law newsletter, and his insurance law articles appear in several industry publications. For more information see www.Rogak.com.