Hernandez v. Bethel United Methodist ChurchHernandez v. Bethel United Methodist Church
Plaintiff was injured November 7, 2002, while working for nonparty Master Fire Prevention Systems, installing fireproofing insulation on new duct work at premises owned by defendant Bethel United Methodist Church of New York. At the time of the accident, plaintiff was standing on the third step of a six-foot A-frame ladder in order to reach the duct work. The ladder was placed on a sheet of plastic that had been put down in order to protect the carpet. Plaintiff stated that, before he began to climb the ladder, he heard and saw the latches on each side lock into place. He was working alone in the room at the time and was the sole witness to his accident.
Plaintiff was using a nail gun to install the insulation and, at the time of the accident, had the nail gun in his right hand and the insulation in his left hand. He leaned to his left while standing on the third step of the ladder, in order to affix the insulation with the nail gun, and the ladder began to move unsteadily. The feet of the ladder on the right side then came off the ground and he started to fall. He tried to grab the ladder with his left arm in order to stop himself from falling, but continued to hold
Plaintiff initially brought this suit alleging causes of action for negligence and violations of
At his deposition, plaintiff testified that he was leaning to the left and the ladder “shook and wobbled.” He also clearly stated that he felt the ladder shaking and wobbling before two of the legs came off the ground. He acknowledged that he could have moved the ladder a foot closer to where he was working, but noted that he had previously been able to reach in that manner without incident.
In his affidavit, plaintiff again asserted that he leaned to his left to install the insulation and felt the ladder shaking and wobbling before the legs came off the ground. He also stated that there were no rubber grips or safety feet on the bottom of the ladder, nor was the ladder secured or fastened in any manner. In addition, plaintiff stated that no one was holding the ladder and that no safety devices of any kind were provided or made available to protect him from falling.
Supreme Court granted plaintiff‘s motion to amend the complaint but denied his motion for summary judgment, finding triable issues of fact as to whether the ladder afforded proper protection and whether plaintiff‘s actions were the sole proximate cause of the accident. Plaintiff subsequently moved to reargue the motion for summary judgment. Supreme Court granted reargument and granted plaintiff‘s motion for summary judgment on the issue of liability under
“Where a ladder is offered as a work-site safety device, it must be sufficient to provide proper protection. It is well settled that [the] failure to properly secure a ladder, to ensure that it remain steady and erect while being used, constitutes a violation of
Plaintiff satisfied his prima facie burden by establishing that he was using the ladder to install fireproofing in the course of his employment, that the ladder was shaking and wobbling, that the feet of the ladder came off the ground and that defendant failed to provide plaintiff with adequate safety devices or to properly secure the ladder. Under these circumstances, plaintiff cannot be deemed the sole proximate cause of his injuries.
Contrary to defendant‘s argument, plaintiff‘s affidavit is not inconsistent with his deposition testimony. Plaintiff was asked at his deposition whether he “fe[lt] anything before the legs came off the ground?” His response was, “The shaking and the wobbling.” Plaintiff‘s previous statement that he “was leaning to [his] left so the right two legs were coming off the ground” was made in response to a question asking whether the feet of the ladder stayed in place. The most reasonable interpretation of his answer is that he was indicating which of the ladder‘s feet left the ground, not that the feet came off the ground due to his movement. He did not state that the feet left the ground before the shaking and wobbling. In fact, both plaintiff‘s subsequent testimony and his affidavit clearly indicate that was not the case.
The dissent states that plaintiff had “two options“—either to reposition the ladder or to direct another worker to hold his ladder while he worked. However, the
Here, plaintiff established that defendant‘s failure to provide adequate safety devices or to properly secure the ladder was a contributing cause of his accident. In opposition, defendant was unable to raise an issue of fact whether plaintiff was the sole proximate cause of the accident. Thus, plaintiff is entitled to summary judgment on the issue of liability under
Nardelli and Buckley,
Plaintiff Christian Hernandez was employed by Master Fire Prevention Systems, Inc. (Master Fire) as a welder/installer and claims that on November 7, 2002, he was injured as the result of a fall from a ladder. Master Fire had been hired by defendant Bethel United Methodist Church of New York to install new duct work in a two-floor building it owned, which was designated as 3404 Bailey Avenue, the Bronx. The duct work was to be installed throughout the inside of the building on both floors and, at the time of the accident, plaintiff was in a back office affixing fireproof insulation around the new duct work with a standard nail gun.
In order to reach the area where the insulation was to be installed, plaintiff was using a small, four-step A-frame ladder that had been supplied by Master Fire. Plaintiff testified at an examination before trial conducted on June 14, 2006 that he had set up the ladder on plastic sheeting which had been laid over a carpeted floor and, before climbing onto the ladder, had heard, and was certain, both latches on the legs of the ladder had locked into place. Plaintiff stated that at the time of the accident, he was standing with both feet “firmly planted” on the third step of the ladder, which step was approximately 2 1/2 feet off the ground, and had insulation in his left hand and the nail gun in his right hand.
Plaintiff further testified that he was holding the nail gun above his head in order to secure the precut insulation to the duct and that, prior to his fall, he was “leaning to my left so the right two legs [of the ladder] were coming off the ground.” Plaintiff maintained that the ladder began to shake and wobble and as he tried to hug the ladder with his left hand to prevent a fall, he lost his balance and slipped from the third rung to the first, causing the nail gun to strike one of the steps and discharge, resulting in a nail striking his eye.
In response to questioning regarding why plaintiff did not reposition the ladder, rather than leaning to the left and above his head to reach the area where he was securing the insulation, the following colloquy took place:
“Q. Did anything stop you before the accident from getting off the ladder and repositioning it under where you needed to?
“A. No, getting down and stuff like that, it was going to take a few minutes but it could have been a difference, like I didn‘t thought [sic] it was going to be something happening, you know. It was just like reaching just real quick, you know.
“Q. Was the reason you chose to reach from the ladder because you had been able to reach like that before without accident? “A. Yes.
“Q. Did you think you would be able to reach from the ladder without making the ladder come off the ground because you had done it before?
“A. Yes.”
Plaintiff had commenced this action by the service of a summons and complaint in April 2005, asserting causes of action grounded in negligence and various violations of the
The Court of Appeals has long and repeatedly observed that the purpose of the statute is to protect workers by placing the ultimate responsibility for safety practices where such responsibility belongs, on the owners and general contractors, instead of on the individual workers who are not in a position to protect
In Blake v Neighborhood Hous. Servs. of N.Y. City (1 NY3d 280, 286-287 [2003]),* however, the Court of Appeals endeavored to clarify the use of the words strict or absolute liability in conjunction with the statute, noting that those terms do not appear in the current, or any of the former variations of the statute but, rather, were first utilized by the Court of Appeals in 1923 to describe an employer‘s duty under that section. The Court in Blake went on to caution that “[i]t is imperative . . . to recognize that the phrase ‘strict (or absolute) liability’ in the
In sum, in order to prevail on a
It is clear then that plaintiff, in light of his deposition testimony, had two options, and chose to avail himself of neither. Plaintiff, instead of leaning off the ladder to his left to save a few minutes, could have stepped down the 2 1/2 feet and repositioned the ladder. Plaintiff also could have directed another member of his crew to stabilize the ladder while he worked and, in my view, a jury could conclude that plaintiff‘s failure to exercise either of those safety options, which were readily available, was the sole proximate cause of his injury (see generally Egan v Monadnock Constr., Inc., 43 AD3d 692 [2007]; Mercado v New York Univ., 29 AD3d 496 [2006]).
Finally, I disagree with the majority‘s conclusion that there are no material inconsistencies between plaintiff‘s deposition testimony and his affidavit in support of his motion for summary judgment. Indeed, plaintiff, in his affidavit, claims that the ladder began to shake and wobble before the legs came off the ground, which is in stark contrast to his deposition testimony which indicates that he was leaning to his left while working on the duct above his head when the right legs of the ladder came off the ground, and then the ladder became unstable. Those inconsistencies not only raise issues as to how the accident occurred, but also as to plaintiff‘s credibility, and I disagree with the majority‘s finding that a reasonable interpretation of the sequence of questions asked of plaintiff at the deposition, and the answers given, is to the contrary. Moreover, while I agree with the majority‘s conclusion that the