Allen v. City of Buffalo

161 A.D.2d 1134, 555 N.Y.S.2d 944, 1990 N.Y. App. Div. LEXIS 9108

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 11, 1990
• Status: Published

Opinions

Order reversed on the law without costs and motion granted. Memorandum: Supreme Court erroneously denied plaintiff’s motion for partial summary judgment on the issue of liability pursuant to Labor Law § 240 (1). The record establishes that the field of approximately 50 manholes over the compartments of the north coagulation basin was part of the over-all worksite (see, Hagins v State of New York, 159 AD2d 941). On December 16, 1985, the date of decedent’s fall, many of the manholes were uncovered or partially covered. Decedent and his crew reached their subterranean work area initially by walking along the perimeter of the field and then traversing the field until they reached the specific manhole through which they were to descend to the work area. It is undisputed that decedent and his crew were able to gain access to the work area only by climbing down ladders placed at the opening of the uncovered manholes (see, Klien v General Foods Corp., 148 AD2d 968). A heavy snowstorm began early on the morning of December 16, 1985; by late afternoon, snow covered the manholes so they could not be seen from the surface. Under these circumstances, the uncovered manhole through which decedent fell was an elevated worksite. Accordingly, absolute liability should be imposed under Labor Law § 240 (1) because decedent’s death was the result of a fall from an elevated worksite and there were no safety or protective devices in place at the time of his fall (see, Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520-521, rearg denied 65 NY2d 1054; Joyce v Rumsey Realty Corp., 17 NY2d 118; Heath v Soloff Constr., 107 AD2d 507, 511-512).

All concur, except Pine and Balio, JJ., who dissent and vote to modify the order, in the following memorandum.