Court Finds No Labor Law Liability for Elevator Installer

Saturday, September 22, 2007 | 0

By Larry Rogak

Buckley v. Columbia Grammar and Preparatory, NYLJ 8/27/07 (1st Dept 2007)

Plaintiffs appeal from an order of the Supreme Court, New York County (Shirley Werner Kornreich, J.) which granted defendants' motions for summary judgment and denied plaintiffs' cross motion for summary judgment on their Labor Law Section 240(1) claim.

This lawsuit arose from an accident on July 21, 2001, at Columbia Grammar and Preparatory School in Manhattan when plaintiff Scott Buckley was injured while he and a co-worker were testing the operation of a car platform in the course of installing a new elevator, part of a renovation project at the school.

The plaintiff was an elevator mechanic's helper employed by third-party defendant Kone Inc. Pursuant to a written purchase order, Kone had been hired by defendant Kalikow Construction, the project manager, to furnish and install a "Monospace" AC gearless traction passenger elevator designed by Kone. Under the agreement, Kone was to provide all labor, materials and supervision relating to installation. The elevator moved by use of a motor, cables and counterweights housed in a frame that would travel up and down the shaft. At the time of the accident, the rails, counterweight frame, counterweights and motor had been installed. Although the elevator cab itself had not yet been installed, the platform on which it would sit had been. The elevator was designed so that when the car descended, a counterweight frame with partially enclosed weights on top of it would ascend, and vice versa. The Monospace design calls for the counterweights to be notched into their frame.

According to the testimony of the plaintiff and Birnbaum, his co-worker, at the time of the accident they were bringing the elevator platform down the shaft from the top (eighth) floor to the basement for the first time, using a hand-held control box. Plaintiff was standing in the doorway to the elevator shaft at the first sub-basement level and Birnbaum, an elevator mechanic from whom he took his instructions, was at the lobby level. As the counterweight frame was ascending, it hit a nail-like spike protruding from the wall of the elevator shaft, which damaged the frame, thus causing five of the counterweights to fall out of the compartment housing them. One or more of these counterweights struck plaintiff on his right side.

In a pre-trial deposition, Birnbaum testified that he believed the spike had been poured into the concrete. No contractor other than Kone worked in the shaft during the weeks prior to the accident. Kone was responsible for inspecting the interior of the elevator shaft before commencing its onsite work in June 2001. Kalikow's employees walked through the site to monitor progress and safety, but did not test the elevator devices and would not use the elevator until Kone's work was done. Kalikow did not supervise or control the methods and means of Kone's work.

Four rails inside the elevator shaft were part of the mechanical system that allowed the elevator and counterweights to go up and down, two for the counterweights and two for the elevator cab. These rails were attached to the hoistway walls by brackets. The counterweight frame assembly with the counterweights, each weighing between 50 and 75 pounds, inside the frame was undergoing its initial test at the time of the accident.

Buckley and his wife commenced this action against Columbia and Kalikow, alleging negligence and violations of Labor Law Sections 200, 240 (1) and 241(6). Kalikow impleaded Kone, which, under the terms of the purchase order, was obligated to indemnify Kalikow. Kalikow and Columbia separately moved for summary judgment dismissing the complaint. Plaintiffs cross-moved for partial summary judgment on liability under Labor Law Section 240(1). Supreme Court denied the cross motion and granted Kalikow's and Columbia's motions, holding Labor Law Section 240(1) inapplicable because the counterweights did not fall while being hoisted or secured, and their fall was not due to the absence of a statutorily enumerated safety device. It also found that the Industrial Code violations relied upon to support the section 241 (6) claim were factually inapplicable and insufficient. Finally, it determined that plaintiff had no sustainable claims for negligence or a Section 200 violation against Kalikow or Columbia because of the failure to show that either of them supervised or controlled the work of either the injured plaintiff or the concrete subcontractor allegedly responsible for the protruding spike.

The Appellate Division held, "Labor Law Section 240(1),1 popularly known as the Scaffold Law, was designed to protect workers in construction projects against injury from the expected risks of inherently hazardous work posed by elevation differentials at the work site. The use of the types of protective devices enumerated therein is required to prevent injuries from either a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured. It imposes absolute liability upon owners and contractors on proof that such a violation of the statute was a proximate cause of the injury sustained."

"The statute's protections, however, extend only to a narrow class of special hazards and do not encompass any and all perils that may be connected in some tangential way with the effects of gravity. In order for section 240(1) to apply, there must be a significant,inherent risk attributable to an elevation differential. The statute does not cover the type of ordinary and usual peril to which a worker is commonly exposed at a construction site. Moreover, since a defendant is liable only for the normal and foreseeable consequences of its acts, a worker who is caused to fall or is injured by the application of an external force is entitled to the protection of the statute only if the application of that force was foreseeable. .."

"Not every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law Section240(1). Rather, liability is contingent upon the existence of a hazard contemplated in section 240(1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein ..."

"Thus, the determination of the type of protective device required for a particular job turns on the foreseeable risks of harm presented by the nature of the work being performed."

"In addition, to establish a prima facie case under Section 240(1), a plaintiff must also establish that the absence of a protective device, or the presence of a defective one, of the type enumerated in the statute, was a proximate cause of the injuries alleged. Here,plaintiffs failed to establish that the work involved a significant inherent risk attributable to an elevation differential, that the injury was the foreseeable consequence of failure to provide proper protective devices of the type enumerated in the statute, or that the counterweights that fell on the worker constituted a load being hoisted or that required securing within the contemplation of the statute."

"Here, it was not foreseeable that the counterweights that fell on the injured plaintiff posed an elevation-related hazard inherent in testing the functioning of the elevator platform on the day of the accident. All that was involved was the moving of the platform up and down using a hand-held control unit. At the time, the counterweights were placed in a frame in their intended, eventual resting place in accordance with Kone's design of the elevator and the instructions in the installation manual. The elevator shaft was constructed according to Kone's specifications. As Birnbaum testified, before installing the counterweight rails, he inspected the walls of the shaft and looked for anything projecting from the walls that might impinge on the space where the counterweights would ascend and descend. According to Birnbaum, everything was in proper order."

"Thus, it could not reasonably be expected at the time of the testing that the counterweight frame would tilt or move in a way that would cause the counterweights to fall. Such an event was not a foreseeable risk inherent in the testing of the elevator, and as such, did not compel the need for a protective device as contemplated by Section 240(1).

Clearly, no such device was contemplated, given the design of the elevator. That some type of bracket was subsequently placed over the top of the counterweight frame does not alter the fact that the risk of the counterweights falling out of their frame was not foreseeable at the time of the accident. This was not a situation where a hoisting or securing device of the kind enumerated in the statute would have been necessary or even expected."

"We are all in agreement that the Labor Law Sections 241(6) and 200 and negligence claims were properly dismissed. Section 241(6), which imposes a nondelegable duty upon an owner or general contractor to see to it that the construction, demolition and excavation operations at the workplace are conducted so as to provide for the reasonable and adequate protection of the workers, is not self-executing. To establish liability under the statute, a plaintiff must specifically plead and prove the violation of an applicable Industrial Code regulation. The Code regulation must constitute a specific, positive command, not one that merely reiterates the common law standard of negligence. The regulation must also be applicable to the facts and be the proximate cause of the plaintiff's injury."

"Here, plaintiffs rely upon alleged violations of Industrial Code (12 NYCRR) Sections 23-1.7(a)(1) and 23-2.1(a)(2) , neither of which is applicable, as a matter of law. Section 23-1.7, entitled 'Protection from general hazards,' provides, in pertinent part:

"(a) Overhead hazards.

"(1) Every place where persons are required to work or pass that is normally exposed to falling material or objects shall be provided with suitable overhead protection. Such overhead protection shall consist of tightly laid sound planks at least two inches thick full size, tightly laid three-quarter inch exterior grade plywood or other material of equivalent strength. Such overhead protection shall be provided with a supporting structure capable of supporting a loading of 100 pounds per square foot."

"As plainly expressed, this regulation only applies to places normally exposed to falling material or objects. Thus, where an object unexpectedly falls on a worker in an area not normally exposed to such hazards, the regulation does not apply."

"Industrial Code Section23-2.1, relating to 'Maintenance and housekeeping,' provides in pertinent part:

"(a) Storage of material or equipment.

"(2) Material and equipment shall not be stored upon any floor, platform or scaffold in such quantity or of such weight as to exceed the safe carrying capacity of such floor, platform or scaffold. Material and equipment shall not be placed or stored so close to any edge of a floor, platform or scaffold as to endanger any person beneath such edge."

"Clearly, although there is a paucity of precedent interpreting this regulation, it does not apply to material and equipment that is not being stored. The few cases that have considered the issue have so held."

"Labor Law Section 200, the codification of the common law negligence standard, imposes a duty upon an owner or general contractor to provide construction site workers with a safe place to work. An implicit precondition to this duty . . . is that the party charged with that responsibility have the authority to control the activity bringing about the injury."

"Where an alleged defect or dangerous condition arises from a subcontractor's methods over which the defendant exercises no supervisory control, liability will not attach under either the common law or Section 200. Thus, Section 200 applies only to owners and contractor who actually exercise control or supervision over the work and had actual or constructive notice of the unsafe condition."

"Here, it is undisputed that neither Columbia nor Kalikow in any way supervised, directed or controlled the elevator work being performed by the injured plaintiff and Birnbaum on the day of the accident; Kone was exclusively responsible for supervising its employees. That Kalikow may have had general supervisory powers to coordinate the progress of the work and correct any unsafe conditions that came to its attention is insufficient to establish its liability."

"Faced with this obstacle, plaintiffs argue that the accident arose not out of Kone's methods, but out of a defective condition at the job site, namely, the five-inch spike protruding from the elevator shaft, of which Kalikow should have been aware by virtue of its employees' daily walk-throughs. But the accident did result solely from Kone's methods, over which Kalikow and Columbia undeniably exercised no supervision or control. In any event, while notice of the injury-causing condition is not enough - supervisory control still being necessary to make an owner or general contractor liable under the Labor Law - there is no evidence that either defendant had actual or constructive notice of any inherent defect in the elevator shaft."

One judge dissented.

Comment: This decision turns on the fine shades of meaning between construction materials which are being "hoisted," or which might be expected to fall if not secured -- and materials which are neither being hoisted nor should be expected to fall. The question of what kind of materials present a foreseeable hazard of falling is obviously open to interpretation (the one dissenting judge is proof of that). Apparently, in this case, the fact that elevator counterweights are supposed to move up and down differentiates them from construction materials being hoisted into place -- which makes sense. And they fell, not because they weren't secured, but because they struck an unexpected spike protruding from the elevator shaft -- which, according to this court, was not a foreseeable risk of the elevator installation.

Lawrence N. 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.

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