Lead Opinion
OPINION OF THE COURT
This action arises out of a claimed violation of Labor Law § 240 (1). The plaintiff alleges that he was not provided with an adequate safety device, a guardrail, while working on a scaffold at the Time Warner Center on Columbus Circle. The plaintiff further alleges that, as a result, he fell off the scaffold and was seriously injured.
•The undisputed facts are that on July 28, 2003, the plaintiff was an employee of subcontractor New England Construction Company (hereinafter referred to as NEC) which was contracted to work at the CNN studios, between the third and eleventh floors of the 80-story building. The defendant Time Warner, Inc. is the owner of the building; the defendant Turner Construction Company was the general contractor of the construction project. On the day of the accident, the plaintiff was securing sheetrock to the ceiling on the third floor when he fell off a baker’s scaffold onto the concrete floor eight feet below. The scaffold measuring approximately two feet wide by six to eight feet long had guardrails on only two of its four sides.
The plaintiff commenced this action in February 2006, and subsequently moved for summary judgment alleging that the scaffold from which he fell was the only scaffold chained to the workers’ gang box on the third floor that day; that the scaffold lacked appropriate guardrails; and that he was not provided with any other safety devices to protect him from falling. He further alleged that he did not see any scaffolds with guardrails on the date of his accident, and that he was not instructed, at any time, that he should use only scaffolds with railings.
The defendants opposed plaintiffs motion, and cross-moved for summary judgment seeking dismissal of plaintiffs section 240 (1) cause of action. They alleged that the plaintiff was
Supreme Court denied both parties’ motions for summary judgment holding that a triable issue of fact exists as to whether safety guardrails were in place on the scaffold from which the plaintiff fell, and if they were not in place, whether they were made readily available on site for the plaintiffs use.
For the reasons set forth below, we affirm the motion court’s decision. It is well established that there is a statutory duty for contractors and owners to provide adequate safety devices for their workers. Labor Law § 240 (1) provides in pertinent part:
“All contractors and owners and their agents . . . 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, slings, 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” (emphasis supplied).
The failure to provide safety devices constitutes a per se violation of the statute and subjects owners and contractors to absolute liability, as a matter of law, for any injuries that result from such failure since workers “ ‘are scarcely in a position to protect themselves from accident.’ ” (Zimmer v Chemung County Performing Arts,
In order for a plaintiff to demonstrate entitlement to summary judgment on an alleged violation of Labor Law § 240 (1), he must establish that there was a violation of the statute, which was the proximate cause of the worker’s injuries. (Blake v Neighborhood Hous. Servs. of N.Y. City,
However, if adequate safety devices are provided and the worker either chooses not to use them or misuses them, then liability under section 240 (1) does not attach. (Robinson v East Med. Ctr., LP,
In Zimmer, the Court of Appeals was unequivocal as to what constituted the duty of an owner or contractor to “furnish or erect, or cause to be furnished or erected,” safety devices which “shall be so constructed, placed and operated as to give proper protection” in the performance of labor described in the statute. In that case, the Court held, “[t]he mere presence of ladders or safety belts somewhere at the worksite does not establish ‘proper protection.’ ” (Zimmer,
In more recent decisions, however, the Court has seemingly diluted this unequivocal stance to a point where it is possible to believe, as the dissent apparently does, that the statutory obligation of a contractor or owner to provide safety devices must be matched by an obligation on the part of the worker to exhibit a “normal and logical response” to search for the safety devices at the work site. (Montgomery v Federal Express Corp.,
A closer analysis of the cases on which the dissent relies, however, demonstrates that the Court of Appeals did not intend and could not have intended to provide support for such a lax
The Court of Appeals, nevertheless, affirmed as follows: “We agree with the Appellate Division that, since ladders were readily available, plaintiffs ‘normal and logical response’ should have been to go get one.” (Montgomery,
The Court repeated the language and the rationale a year later again to find a worker the sole proximate cause of his injuries. This time, the Court found sole proximate cause in the worker’s failure to replace his six-foot ladder with an eight-foot ladder more suited for the job. (Robinson,
While in Montgomery the Court gave no indication as to what might be considered “readily” available, in Robinson, on the other hand, the Court’s narrative included the facts that the worker knew there were eight-foot ladders on the job site and “knew what part of the garage [they] were in.” (Id. at 553.) Further, its decision included the worker’s testimony that “ T knew where the tools are located. It’s a practice of help yourself . . . ‘[y]ou just grab a ladder and do the job.’ ” (Id. at 553.) Hence, the Court concluded that the eight-foot ladder was readily available because “there were eight-foot ladders on the job site, . . . [the worker] knew where they were stored, and
Most recently in Miro v Plaza Constr. Corp. (
In essence, while the Court has not effectively defined readiness or ease of availability, the Robinson decision indicates that the requirement of a worker’s “normal and logical response” to get a safety device rather than having one furnished or erected for him is limited to those situations when workers know the exact location of the safety device or devices and where there is a practice of obtaining such devices because it is a simple matter for them to do so. The dissent’s observation does not reflect any such factors in this case. Indeed, the critical observation that “there is no evidence that plaintiff looked ‘beyond his immediate work location,’ i.e., the third floor” is predicated on the assumption that the plaintiff had an obligation to search all eight floors because he had seen scaffolds with guardrails somewhere on the job site prior to the day of the accident.
This is precisely the standard that the Zimmer Court rejected. Moreover, it is not the standard enunciated either in Montgomery or Robinson. It is highly unlikely that the availability of a scaffold with guardrails on a different floor would qualify as “ready” or “easy” availability. However, that question is not before us, since the record in this case does not establish exactly where such scaffolds were to be found on the day of the accident. To the extent that the statements and testimony of the plaintiff and the defendants conflict as to where the scaffolds with guardrails were located that day, they raise a triable issue of fact, and so preclude summary judgment.
Accordingly, the order of the Supreme Court, New York County (Edward H. Lehner, J.), entered November 28, 2007, which denied plaintiffs motion for partial summary judgment as to liability on his Labor Law § 240 (1) cause of action, denied defendants’ cross motion for summary judgment dismissing the Labor Law § 240 (1) claim, and granted plaintiffs cross motion for leave to amend the complaint to allege a cause of action under Labor Law § 241 (6), should be affirmed, without costs.
Dissenting Opinion
I disagree with the majority that a triable issue of fact exists with respect to whether plaintiffs actions were the sole proximate cause of his injuries. In my view, Montgomery v Federal Express Corp. (
Plaintiff was hired by defendant New England Construction Company to perform carpentry work on a project on which New England was a subcontractor. On the morning of the incident giving rise to this litigation, plaintiff was working on the third floor of the project installing sheetrock in the ceiling. To perform this task, plaintiff was standing on a six-foot baker’s scaffold that had guardrails on the front and back portions of the platform but lacked rails on its sides. Plaintiff obtained the scaffold from an area on the third floor near the workers’ gang box; it was the only scaffold on the third floor. As plaintiff was screwing a piece of sheetrock into the ceiling, he stepped off one of the unguarded ends of the scaffold and fell to the floor below.
Plaintiff commenced this Labor Law § 240 (1) action against, among others,
A defendant cannot be held liable under Labor Law § 240 (1) where the worker’s actions were the “sole proximate cause” of the worker’s injuries (Blake v Neighborhood Hous. Servs. of N.Y. City,
In Montgomery, the plaintiff and his supervisor were assigned to do work in an elevator motor room, which was located four feet above the roof level of the building in which they were working. The plaintiff and his supervisor went to the roof and found that the stairs that had previously led from the roof to the motor room had been removed. There was no ladder in the immediate vicinity, but ladders were available at the job site. Rather than leaving the roof and retrieving a ladder from elsewhere on the job site, the plaintiff and his supervisor climbed to the motor room by standing on an inverted bucket that the plaintiff had found. After finishing the task, the plaintiffs supervisor jumped down to the roof without incident; the plaintiff also jumped but injured his knee in the process. Affirming an order of the Appellate Division dismissing the
“[w]e agree with the Appellate Division that, since ladders were readily available, plaintiffs ‘normal and logical response’ should have been to go get one. [The] [p]laintiff s choice to use a bucket to get up, and then to jump down, was the sole cause of his injury, and he is therefore not entitled to recover under Labor Law § 240 (1)” (4 NY3d at 806 , citing Blake, supra).
In Robinson, the plaintiff, working in a building that was under construction, was using a six-foot ladder to install components of pipe hanging systems onto overhead structural beams. The ladder was sufficient to allow the plaintiff to perform safely his task in a hallway; however, when the plaintiff moved from the hallway into an office he observed that the structural beams were at a height of 12 to 13 feet from the floor, a height greater than in the hallway. Nevertheless, the plaintiff stood on the top cap of the six-foot ladder and continued with his work. As he was using a wrench to tighten a clamp to the top of a beam, the plaintiff lost his balance and sustained back injuries in the process of steadying the tipping ladder. According to the plaintiff, a couple of hours before the incident he had asked his foreman for an eight-foot ladder and the foreman replied “I’ll see if I can get you one.” (
The Court of Appeals affirmed the dismissal of the section 240 (1) claim but on a different basis. The Court determined that the plaintiff’s conduct was, as a matter of law, the sole proximate cause of his injuries. The Court noted that
“plaintiff knew that he needed an eight-foot ladder in order to screw the rods into the clamps once he left the hallway and entered the office suite. He acknowledges that there were eight-foot ladders on*242 the job site, that he knew where they were stored, and that he routinely helped himself to whatever tools he needed rather than requesting them from the foreman. While intimating that all the eight-foot ladders may have been in use at the time of his accident, plaintiff also conceded that his foreman had not directed him to finish the piping in the office suite before undertaking other tasks, and testified that there was sufficient other work to occupy him for the rest of the workday. He also testified that on prior occasions he had waited for a ladder to be freed up by other workers. He claims to have asked his foreman for an eight-foot ladder only an hour or two before he started to install the rods in the office suite. Yet he proceeded to stand on the top cap of a six-foot ladder, which he knew was not tall enough for this task, without talking to the foreman again, or looking for an eight-foot ladder beyond his immediate work location” (6 NY3d at 554-555 ).
Holding that a defendant cannot be held liable where “adequate safety devices are available at the job site, but the worker either does not use or misuses them” (id. at 554), the Court concluded that “there were adequate safety devices—eight-foot ladders— available for plaintiffs use at the job site” (id. at 555). Accordingly, the Court determined that the “[p]laintiff s own negligent actions—choosing to use a six-foot ladder that he knew was too short for the work to be accomplished and then standing on the ladder’s top cap in order to reach the work—were, as a matter of law, the sole proximate cause of his injuries” (id.).
Under Montgomery and Robinson liability under Labor Law § 240 (1) cannot be imposed where the injured worker knows that adequate safety devices are available at the job site but for no good reason fails to use them. We have applied this rule to preclude recovery under section 240 (1) in a number of cases (see e.g. Egan v Monadnock Constr., Inc.,
Here, plaintiff needed a scaffold to perform his task and obtained the one he used from an area near the workers’ gang box on the third floor. Although it was the only scaffold on the third floor—the floor on which he was working—plaintiff acknowledged that there were scaffolds on the job site that had proper guardrails. Plaintiff testified that, prior to the date of the incident, he observed scaffolds with proper guardrails on
In light of these facts, the baker’s scaffold without siderails is indistinguishable from the bucket in Montgomery and the six-foot ladder in Robinson. Plaintiff’s “normal and logical response” should have been to go look for a scaffold with proper guardrails or ask a superior to provide him with one. Thus, defendants established as a matter of law that (1) adequate safety devices were available at the job site, (2) plaintiff knew that the devices were available and (3) plaintiff, for no good reason, failed to use an available adequate safety device. Because plaintiff offered no evidence raising a triable issue of fact with regard to the issue of whether his conduct was the sole proximate cause of his injuries, defendants are entitled to summary judgment dismissing the complaint as against them (see Robinson,
Miro v Plaza Constr. Corp. (
We reversed an order of Supreme Court granting plaintiff’s motion for summary judgment on the issue of liability on his Labor Law § 240 (1) claim and granted the defendants summary judgment dismissing that claim (
Although the Court of Appeals affirmed so much of our order as reversed Supreme Court’s order granting the plaintiffs motion for summary judgment on liability on the section 240 (1) claim, it modified our order by denying summary judgment to the defendants on that claim. The Court held that the defendants were not entitled to summary judgment because “it is not clear from the record how easily a replacement ladder could have been procured” (
The majority correctly observes that in Zimmer v Chemung County Performing Arts (
“A line of cases preceding Blake denied recovery to so-called ‘recalcitrant workers’ who ignored specific instructions to use readily available safety equipment. In Cahill v Triborough Bridge and Tunnel Authority [4 NY3d 35 (2004)], however, the Court of Appeals stated that ‘[t]he controlling question is not whether plaintiff was “recalcitrant,” but whether a jury could have found that his own conduct, rather than any violation of Labor Law § 240 (1), was the*245 sole proximate cause of the accident’ ” (IB PJI3d 2:217, at 1185 [2009] [citations omitted]).
Accordingly, the language from Zimmer that the majority relies upon cannot be regarded as authoritative. Moreover, that language cannot be reconciled with the legal principle for which Montgomery and Robinson stand—liability under Labor Law § 240 (1) cannot be imposed where the injured worker knows that adequate safety devices are available at the job site but for no good reason fails to use them (Robinson,
The majority writes
“that the requirement of a worker’s ‘normal and logical’ response to get a safety device rather than having one furnished or erected for him is limited to those situations when workers know the exact location of the safety device or devices and where there is a practice of obtaining such devices because it is a simple matter for them to do so.”
I respectfully disagree, as nothing in Montgomery or Robinson supports reading such a limitation into their holdings. To the contrary, the relevant inquiry under both cases is whether the injured worker knew that adequate safety devices were available at the job site but for no good reason failed to use them. Moreover, by obligating workers to avail themselves of safety devices they know to be available on the job site, the holdings of Montgomery and Robinson provide workers with a strong incentive to engage in behavior that promotes the statutory goal of worker safety. In limiting that obligation to situations in which workers know the “exact location” of safety devices and an antecedent “practice of obtaining such devices” has been established, the majority dilutes that incentive. To that extent, the “lax statutory interpretation” is the one the majority embraces. Finally, the majority’s reliance on the fact that the work site consisted of eight floors of the building is misplaced. Regardless of whether safety devices that are not on the job site itself can be “readily available” (see Miro,
With respect to that aspect of the order granting plaintiffs motion to amend his complaint to assert a cause of action under
In sum, I would modify the order to grant defendants’ cross motion for summary judgment dismissing the complaint and to deny plaintiffs cross motion for leave to amend the complaint.
Mazzarelli, J.P., Acosta and Renwick, JJ., concur; McGuire, J., dissents in a separate opinion.
Order, Supreme Court, New York County, entered November 28, 2007, affirmed, without costs.
Notes
Plaintiff also sued two other defendants to recover damages for injuries he suffered in a motor vehicle accident that occurred several months after his fall from the scaffold. Plaintiff alleged that the injuries he sustained as a result of his fall from the scaffold were aggravated by the motor vehicle accident.