Foundation to Basement Covered by Scaffold Law

Saturday, November 5, 2005 | 0

By Larry Rogak

WORKER'S FALL FROM TOP OF BUILDING FOUNDATION INTO BASEMENT IS AN ELEVATION RELATED RISK

Oliveira v. Long Island Home Development Corp., NYLJ 10/11/05 (Supreme Court, Nassau County) (FEINMAN, j)

This personal injury action arose out of an incident that occurred on September 24, 2002 at 8 Drohan Street, Huntington, New York. The plaintiff was working as an employee of subcontractor, Santa Maria Concrete Corp. The plaintiff was engaged in the construction and the erection of a structure. The contractor-owner was involved in the building of the structure, LI Home was the general contractor, and 57 Dorhan Road Corp. owned the premises.

On the date of loss, plaintiff was stripping forms off of a foundation which had been poured a day or two earlier. While he was in the course of his work, he was standing on top of the foundation wall prying forms off of the wall. He was using a 6 foot pry bar to accomplish this task, and no other equipment was provided to him, including no other safety equipment. Mr. Oliveira testified that at the time of the incident, he was on top of the basement foundation, removing wood forms, and fell backward inside the foundation, approximately 8 feet down.

Plaintiff moved for summary judgment on liability under Labor Law section 240(1), the "Scaffold Law."

Section 240(1) of the Labor Law requires that owners and general contractors "in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, swings, hangers, blocks, pulleys, braces, irons, ropes and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed." Violation of Labor Law section 240(1) mandates the imposition of liability regardless of negligence and is deemed to create a statutory cause of action unrelated to questions of negligence. Labor Law section 240 imposes absolute liability on owners, contractors and agents for their failure to provide workers with safety devices that properly protect against elevation-related special hazards. The statute is to be interpreted liberally to accomplish its purpose.

It is well settled that the "injured's contributory negligence is not a defense to a claim based on Labor Law section 240(1) and that the injured's culpability, if any, does not operate to reduce the owner/contractor's liability for failing to provide adequate safety devises." The so-called "recalcitrant worker" defense cannot be invoked when no safety devises are provided.

"Here," ruled the Court, "the plaintiff has met his prima facie burden for entitlement to partial summary judgment on liability against the defendants on the Labor Law section 240(1) claim. The plaintiff has demonstrated that he was engaged in the building of a structure at the direction of LI Home, owned by 57 Drohan Road Corp. The plaintiff has averred and testified that he was exposed to a gravity- related risk, in that the basement foundation which he was working atop was uncovered, no safety devices were provided, and that while he was working thereto, he fell backward into the basement, approximately 8 feet down. Accordingly, the plaintiff has demonstrated entitlement to summary judgment as a matter of law against the defendants, owner-contractor, by establishing that he was subject to an elevation-related risk and that the defendants violated Labor Law section 240(1) by not providing any safety devices."

"Importantly, the defendant does not dispute that there were no safety devices in place to prevent the plaintiff from falling from the ground floor into the basement. Once the absolute nondelegable duty set forth in Labor Law section 240(1) has been imposed any negligence on the part of the injured worker is of no consequence." Therefore, the defendant's argument that the plaintiff's own negligence contributed to the accident is of no merit. Additionally, the defendant has not raised a genuine issue to support the assertion that the plaintiff's own actions were the sole proximate cause of his alleged injuries. Moreover, here, when the statutory violation is the cause of the injury, the plaintiff cannot be solely to blame for it."

"The defendant also argues or suggests that the plaintiff's fall does not fall within the ambit of Labor Law section 240 as the plaintiff was working at ground level and was not suspended in the air at the time of the fall, or working at a height. Labor Law section 240(1) applies to the 'falling worker' who is working at a gravity- related risk. Gravity-related risks have been held to occur at or near ground level. In Brandl v. Ram Builders, Inc., 7 AD3d 655, an injured plaintiff stepped backwards into an unprotected opening in the floor of a home he was renovating, and fell from the ground floor to the basement. The Court held that the plaintiffs established their prima facie entitlement to summary judgment on the issue of liability pursuant to Labor Law section 240(1) by submitting evidence that the injured plaintiff fell through an uncovered opening, that no safety device was in place to protect him from the uncovered opening and that this violation was the proximate cause of the injuries he allegedly sustained. A collapsed floor has been held to constitute prima facie evidence of a violation of Labor Law section 240(1). See, Richardson v. Matarese, 206 AD2d 353 and Clute v. Ellis Hosp., 184 AD2d 942. Gravity-related risks have been found when a painter fell in an uncovered staircase opening, Serpe v. Eyris Prods., 243 AD2d 375, when a painter fell into a protected hole in the floor, Carpio v. Tishman Construction Corp., 240 AD2d 234), and when a plaintiff fell through corrugated metal decking, Robertti v. Chang, 227 AD2d 542. In Carpio v. Tishman Construction Corp., 240 AD2d 234, the Court stated that while roof work may appear more elevation-related because a roof is usually the top portion of a structure, where a plaintiff fell into a hole with a three-foot elevation differential, such a risk would fall within the statute even if it existed at ground level."

"The Court of Appeals defined the covered risks as those related to the effects of gravity where protective devices are called for either because of 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." Carpio v. Tishman Construction Co., 240 AD2d 234, citing Rocovich v. Consolidated Edison Co., 78 NY2d 509. In the case at bar, a risk of injury existed because of the difference between the elevation level of the required work, (the top of the foundation wall of the basement), and a lower level, (the basement floor, approximately 8 feet below). Therefore, this accident was gravity-related."

"Accordingly, the plaintiff is entitled to an award of partial summary judgment against the defendants on the issue of liability pursuant to Labor Law section 240(1)."

Article by Larry Rogak. 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.

-------------------

The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.