Ross v. Curtis-Palmer Hydro-Electric Co.

180 A.D.2d 385, 585 N.Y.S.2d 516, 1992 N.Y. App. Div. LEXIS 7989

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 11, 1992
• Status: Published

Opinions

OPINION OF THE COURT

Casey, J.

Plaintiff seeks to recover damages for an injury to his back allegedly sustained while he was performing welding work for his employer, Bechtel Corporation, at a construction site in the Town of Corinth, Saratoga County. Defendants are Curtis-Palmer Hydro-Electric Company, the owner of the site, Sara-toga Development Corporation, a general partner of Curtis-Palmer, and International Paper Company, the general contractor. International contracted with Bechtel to perform a portion of the construction work. Plaintiffs complaint includes causes of action based upon alleged violations of Labor Law §§ 200, 240 (1) and § 241 (6).

International moved for summary judgment dismissing plaintiffs complaint against it and plaintiff cross-moved for summary judgment on the issue of International’s liability for the alleged violations of Labor Law § 240 (1) and § 241 (6). Supreme Court dismissed plaintiffs complaint against all defendants and denied plaintiffs motion for reconsideration, resulting in this appeal by plaintiff.

Plaintiff was required to perform the welding work from a temporary platform positioned over a 40-to-50-foot-deep concrete shaft. Because of the type and location of the platform, plaintiff had to sit on the platform, lean out and bend, with his head some two feet below his waist, to do the welding work. Although he did not fall from the platform, plaintiff alleges that because of the placement of the platform he was required to assume a position for a substantial period of time which caused an injury to his back.

The issue raised by plaintiffs Labor Law § 240 (1) cause of action is whether absolute liability can be imposed when one of the statutory devices is so constructed and placed that it creates a risk of harm which causes an injury to a worker for whose benefit the device was erected. This issue was neither raised nor decided in Rocovich v Consolidated Edison Co. (78 NY2d 509). At issue in Rocovich was the applicability of Labor Law § 240 (1) in a case where the injured worker was not provided with any of the devices listed in the statute. Absent some elevation-related risk involving the effects of gravity inherent in the work being performed, none of the statutory devices was required and, therefore, the Court of Appeals held that Labor Law § 240 (1) was not applicable (supra, at 513-514). This court previously reached a similar result in Simon v Schenectady N. Congregation of Jehovah's Witnesses (132 AD2d 313, 316). There is no basis for extending these holdings or the rationale for them to the entirely different issue presented where, as here, it is undisputed that the injured worker was exposed to an elevation-related risk and one of the statutory devices was provided to the worker, who was injured as a result of a new and different risk of harm allegedly created by the improper construction, operation and/or placement of the statutorily required device.

Where there is an elevation-related risk and the worker is provided with one of the devices listed in Labor Law § 240 (1), the statute requires that the device "be so constructed, placed and operated as to give proper protection to” the worker performing the task. It would be illogical to conclude that a device need only provide proper protection from the specific elevation-related hazard which gave rise to the need for the device, without regard to whether the device is so constructed or placed as to create new hazards and dangers for the workers who use it, which may pose an even greater risk of harm than the original hazard. Neither the language of the statute itself nor the holding and rationale of the Court of Appeals in Rocovich (supra) requires or justifies such an illogical interpretation of the phrase "proper protection”. To the contrary, such an interpretation would conflict with the purpose of Labor Law § 240 (1), which is to protect workers at building construction sites who are not in a position to protect themselves (see, Rocovich v Consolidated Edison Co., supra, at 513). Workers are in no better position to protect themselves from hazards created by the improper construction, placement or operation of the statutory devices than they are to protect themselves from the elevation-related hazard that gave rise to the need for the device.

Relying upon dictum in Rocovich, which states that the statutory devices are to be constructed, placed and operated so as to avoid the contemplated hazards (supra, at 513), the dissent goes one step farther to conclude that the statutory devices are to be constructed, placed and operated so as to avoid only the elevation-related hazard which gave rise to the need for the device. That a device must protect a worker from the particular elevation-related hazard which gave rise to the need for the device does not mean the Legislature intended that no other hazard created by the construction, placement or operation of the device is within the scope of the "proper protection” requirement of Labor Law § 240 (1). The statute contains no words of limitation on the term "proper protection”, and the Court of Appeals did not address the issue in Rocovich.

This court has adopted an interpretation of Labor Law § 240 (1) which imposes absolute liability on an owner and/or contractor when a worker at a building construction site is exposed to an elevation-related risk and he sustains an injury as a direct and proximate result of improper construction, operation and/or placement of one of the devices listed in the statute. For example, in Region v Woodward Constr. (140 AD2d 758, lv dismissed 72 NY2d 952) a crane was being used to lift heavy objects and move them to another location. The process of lifting the objects clearly created an elevation-related risk that the object might fall and strike workers below and, therefore, Labor Law § 240 (1) required that the crane be placed and operated to give proper protection to those workers. During the work, the boom of the crane came in contact with a power line and one of the workers was electrocuted. We held that the crane was not placed and operated so as to give the statutorily required proper protection to the deceased worker.

The Fourth Department would apparently have reached a contrary result under its "falling worker or object” test because electrocution is a risk of common everyday work activities not involving heights (see, Staples v Town of Amherst, 146 AD2d 292, 300). If, however, the boom of the crane had come in contact with the power line after the heavy objects had been lifted in the air, and as a result of that contact the crane failed, causing the objects to fall on the worker, absolute liability would be imposed under the "falling worker or object” test (see, supra). From the worker’s point of view the crane was clearly not placed or operated to give proper protection regardless of whether the crane’s contact with the power line killed him directly by electrocution or by causing the heavy objects to fall on him. There is simply no justification in the language of Labor Law § 240 (1), or its purpose or legislative history, to construe the statute as applicable in the latter circumstance, but not the former. The incongruity in such an interpretation becomes even more apparent in a case where the crane’s improper placement and operation near a power line is the proximate cause of two workers’ deaths, one by electrocution because he was touching the crane and the second as a result of being struck by the heavy objects which fell when the crane mechanism failed due to the contact with the power line. It would be illogical to conclude that Labor Law § 240 (1) was intended to protect one of the workers but not the other. That injuries resulting from non-elevation-related hazards, including electrocution, caused by improper construction, placement or operation of the statutory devices might give rise to causes of action under Labor Law §§200 and 241 (6), which do not impose absolute liability, is irrelevant to the question of whether the term "proper protection” in Labor Law § 240 (1) includes protection from such hazards.

We note that the Fourth Department has apparently carved out an exception to its "falling worker or object” test for injuries sustained when a worker falls at a height, but not from a height (Aruck v Xerox Corp., 144 Misc 2d 367, affd 166 AD2d 907; see, Pietsch v Moog, Inc., 156 AD2d 1019). Injuries from falling (as opposed to falling from a height) are obviously risks of common everyday work activities not involving heights (see, Rocovich v Consolidated Edison Co., supra) and, therefore, it is difficult to rationalize the holding of Aruck v Xerox Corp. (supra) with the Fourth Department’s "falling worker or object” test. It is our view that the holdings in the Aruck and Pietsch v Moog, Inc. (supra) cases expose the inadequacy of attempting to fashion a rigid formula applicable to all cases. Rather, each case must be decided on the basis of all of the relevant facts and circumstances to determine whether the injured worker was exposed to an elevation-related risk, and if a Labor Law § 240 (1) device was provided, whether that device was constructed and placed so as to give proper protection to the worker. If the improper construction, operation or placement of the device is a proximate cause of the worker’s injuries, the "proper protection” requirement of Labor Law § 240 (1) has not been complied with and absolute liability should be imposed regardless of whether the elevation-related risk itself caused the injuries. That is the rule in this Department (see, e.g., Region v Woodward Constr., supra) and the Rocovich case does not instruct us to abandon or limit our rule.

In the case at bar, the platform was so constructed and placed that plaintiff had to sit on the platform, lean out and bend, with his head some two feet below his waist, to do the welding work. Had he fallen into the hole while in this position there would be no question as to the imposition of absolute liability under Labor Law § 240 (1). The fact that he was agile enough to do the work without falling should not relieve defendants of absolute liability for injuries to plaintiff directly and proximately caused by the construction and placement of the platform. The proximate cause issue presents a question of fact in this case and, therefore, no party is entitled to summary judgment on the Labor Law § 240 (1) cause of action.

Turning to the Labor Law § 200 cause of action, we conclude that a question of fact has been raised concerning International’s supervisory control over Bechtel’s activities which caused plaintiff’s injuries. This is not a case where International had no contractual or other actual authority to control the injury-causing activity (see, Rapp v Zandri Constr. Corp., 165 AD2d 639, 641-642). To the contrary, the contract between International and Curtis-Palmer imposed upon International the duty and authority to provide all construction management and supervision. In these circumstances, the affidavit of International’s safety supervisor, which alleges that International did not control or supervise Bechtel’s workers, is insufficient to establish International’s entitlement to judgment as a matter of law on this issue (see, Pritchard v Murray Walter, Inc., 157 AD2d 1012, 1014). Accordingly, summary judgment on plaintiff’s Labor Law § 200 cause of action is inappropriate.

We reach a contrary conclusion as to plaintiff’s Labor Law § 241 (6) cause of action. Plaintiff alleges that he was not adequately protected in the workplace, which is essentially the same claim as that asserted under the Labor Law § 200 cause of action and is insufficient to create a factual issue which would defeat International’s summary judgment motion (see, Simon v Schenectady N. Congregation of Jehovah’s Witnesses, 132 AD2d 313, 316-317, supra).

We note, however, that Supreme Court’s grant of summary judgment to the nonmoving defendants, who submitted no evidentiary materials to show their entitlement to such relief, was clear error. As to the appealable portion of the order denying plaintiff’s motion for reconsideration, we conclude that the renewal motion is academic. International failed to submit competent evidence sufficient to establish its entitlement to judgment as a matter of law on the issue of causation and, therefore, the physician’s affidavit submitted with plaintiff’s motion to renew is not necessary. The question of causation, in particular the question of whether the alleged improper construction and/or placement of the platform was a proximate cause of plaintiff’s injuries, is a factual issue and the physician’s affidavit would not require a contrary conclusion.