Scaffold Law Case Review
Saturday, December 31, 2005 | 0
BUILDING'S BALCONY IS NOT A "SCAFFOLD," DOES NOT SUPPORT SCAFFOLD LAW
CLAIM
Caruana v. Lexington Village Condominiums at Bay Shore, 2005 NY Slip
Op 08940, Index no. 21059-1997 (2d Dept 2005)
When is a scaffold not a scaffold? When it is a permanent part of a
building. As a result, a workman who was using a building balcony as
a scaffold does not have a case under the Scaffold Law, held the
Second Department.
Plaintiff Paul Caruana was injured when a condominium balcony, from
which he was discarding debris into a dumpster on the ground,
collapsed. The plaintiffs alleged that a violation of Labor Law section 240
(1) occurred because the balcony was being used as a scaffold. The
Supreme Court, Queens County, granted summary judgment to defendants,
dismissing the Scaffold Law cause of action. The Appellate Division
affirmed.
"The owners established their entitlement to judgment as a matter of
law. Labor Law section 240(1) is inapplicable because the balcony is not a
scaffold, but rather a permanent appurtenance to the building," ruled
the Court.
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.
Comments