Cohen v. Memorial Sloan-Kettering Cancer Center

50 A.D.3d 227, 850 N.Y.S.2d 435
CourtAppellate Division of the Supreme Court of the State of New York
DecidedFebruary 5, 2008
StatusPublished
Cited by2 cases

This text of 50 A.D.3d 227 (Cohen v. Memorial Sloan-Kettering Cancer Center) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cohen v. Memorial Sloan-Kettering Cancer Center, 50 A.D.3d 227, 850 N.Y.S.2d 435 (N.Y. Ct. App. 2008).

Opinions

OPINION OF THE COURT

Saxe, J.

Labor Law § 240 (1) requires that adequate safety devices be provided to workers for tasks that “entail a significant risk . . . because of the relative elevation at which the task must be performed” (see Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]). The statute directs that the devices must be “so constructed, placed and operated as to give proper protection to a person so employed” (Labor Law § 240 [1]), explicitly recognizing that a defect in a device may derive not from its construction but from the way in which it is placed at the site. If a worker at an elevated height is injured in a fall which is proximately caused by the inadequacy of the provided device or its placement, the owner and contractor are subject to absolute liability under the statute (Bland v Manocherian, 66 NY2d 452, 460 [1985]). Moreover, the provision requires that the device made available must not only allow the worker to safely perform the work at an elevation without falling (id.), but also to safely ascend to the necessary height, and safely descend back to the floor thereafter (see Potter v NYC Partnership Hous. Dev. Fund Co., Inc., 13 AD3d 83, 84 [2004]). We hold that plaintiffs should have been awarded summary judgment on their cause of action under Labor Law § 240 (1), because the safety device made available to perform the assigned task at an elevation could not be properly placed at that spot in a position that would provide adequate protection to the worker from the risk of falling when he descended the ladder.

Plaintiff Edward Cohen was employed with an electrical subcontractor on a renovation project at defendant Memorial Sloan-Kettering Cancer Center, for which project defendant HRH Construction was the construction manager. At the time in question, plaintiff was assigned the task of installing metal racks in a particular room’s ceiling. A six-foot A-frame ladder was made available for his use. However, as his testimony [229]*229established, the ladder was inadequate for the task at one spot in the room, not because it was too short or lacked appropriate parts, but because when the ladder was placed in the only possible position at the location, its first rung was completely blocked and inaccessible. A metal rod protruded from a piece of cast iron installed in the wall as a plumber’s roughing for a toilet to be installed subsequently. Plaintiff was therefore forced to step directly from the second rung to the floor when descending. Moreover, another cast iron rod protruded a few inches behind the ladder’s second rung.

The accident occurred when plaintiff began to step down to the floor from the second rung with his right foot; his left foot got caught between the second rung and the rod behind it, his knee twisted and, while grabbing his knee, he fell to the concrete floor.

Plaintiffs here made the requisite prima facie showing for section 240 (1) liability on the part of the owner and general contractor. They established that the device made available to plaintiff to perform the assigned task was inadequate to safely perform a portion of the work, since the provided ladder did not permit him to safely ascend and descend. In opposing the application, defendants failed to offer any evidence that would justify concluding that an adequate safety device had in fact been made available, that the accident was caused solely by plaintiffs misuse of an adequate safety device, or that the accident was unrelated to the lack of an adequate safety device.

Defendants argue that summary judgment on the Labor Law § 240 (1) claim was properly denied by the motion court, relying on case law that “[wjhere an employee is injured in a fall from a ladder, which is not otherwise shown to be defective, the issue of whether the ladder provided the employee with the proper protection required under this statute is a question of fact for the jury” (Taglioni v Harbor Cove Assoc., 308 AD2d 441, 442 [2003]).

However, while it is appropriate to deny summary judgment where there is an issue of fact as to whether a plaintiff s fall was caused by a failure to provide an adequate safety device (see e.g. id.; Chan v Bed Bath & Beyond, 284 AD2d 290 [2001]), there is nothing here to contradict plaintiffs showing that his fall was proximately caused by his inability to step down one rung at a time because of the absence of a safety device which would allow his safe descent to the floor.

Defendants, and our dissenting colleagues, emphasize that there was no defect in the ladder. However, that is not the [230]*230nature of the claimed violation of Labor Law § 240 (1). Defendants had the statutory obligation to provide a safety device appropriate to the task. Just as it would be a violation of section 240 (1) to provide a worker with a nondefective six-foot ladder in circumstances where a 10-foot ladder was necessary to perform the assigned task, plaintiff here established that the device he was provided, though not itself defective, and sufficient for the task at other portions of the work site, was insufficient to permit him to safely perform the elevated task at that particular part of the work site.

Of course, if adequate safety devices were made available to the worker, but the worker either does not use or misuses them, there will be no liability (see Robinson v East Med. Ctr., LP, 6 NY3d 550, 554 [2006]); notably, however, “[t]he mere presence of ladders or safety belts somewhere at the worksite” is not enough to establish that the worker was provided with an appropriate device (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 524 [1985]). It is suggested that some other type of device, such as some sort of scaffold, would have served the purpose at that spot. Yet, defendants did not offer any evidence establishing that any more appropriate equipment was made available to plaintiff for the task, or even that—contrary to plaintiff’s assertion—the ladder could have been placed in a manner that would have allowed plaintiff to safely perform the work. Nor does the dissent satisfactorily explain its rejection of plaintiffs suggestion that a device such as a scaffold set up in that portion of the work site would have provided a safe means of performing the work and descending thereafter.

There was no basis to conclude, as defendants suggest, that the sole cause of the accident was plaintiffs own negligence, either in choosing to use that ladder, choosing to place it as he did, or choosing to use it in the manner that he did. To so conclude would turn on its head the purpose of section 240 (1), which is “to protect workers by placing ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor, instead of on workers, who are scarcely in a position to protect themselves from accident” (Rocovich v Consolidated Edison Co., 78 NY2d at 513 [citations and internal quotation marks omitted]).

Defendants, and our dissenting colleagues, also urge that plaintiffs injury resulted from a separate hazard unrelated to the danger that brought about the need for the ladder in the [231]*231first instance (citing Nieves v Five Boro A.C. & Refrig. Corp., 93 NY2d 914 [1999]). In Nieves, the plaintiffs misstep was caused by something on the ground, not something he was forced to encounter in the course of making his descent.

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Cite This Page — Counsel Stack

Bluebook (online)
50 A.D.3d 227, 850 N.Y.S.2d 435, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cohen-v-memorial-sloan-kettering-cancer-center-nyappdiv-2008.