Oakes v. Wal-Mart Real Estate Business TrustOakes v. Wal-Mart Real Estate Business Trust
APPEARANCES OF COUNSEL
Lewis, Brisbois, Bisgaard & Smith, LLP, New York City (Michael N. Jagiani of counsel), for Wal-Mart Real Estate Business Trust and another, respondents-appellants.
Napierski, Vandenburgh, Napierski & O‘Connor, LLP, Albany (Mark J. Dolan of counsel), for Luck Brothers, Inc., respondent-appellant.
Mercure, J.P.
Plaintiff Darby J. Oakes (hereinafter plaintiff) and his wife, derivatively, commenced this personal injury action after his legs were crushed in an accident on the premises of a construction site owned by defendant Wal-Mart Real Estate Business Trust in the Town of Massena, Franklin County. Plaintiff, an iron worker, was employed as a supervisor by third-party defendant, J.T. Erectors, LLC, a subcontractor retained by the general contractor, defendant Murnane Building Contractors, Inc. Defendant Luck Builders, Inc. (sued herein as Luck Brothers, Inc., hereinafter Luck) was the subcontractor hired to perform site preparation work, which included leveling, grading and filling.
As supervisor, plaintiff was responsible for reading the numbered tags on pieces of structural steel and, after comparing them to the blueprint, directing the sequence for the placement of the steel components into the building structure. Immediately prior to the accident, plaintiff was walking between two steel trusses—girders that measured approximately 30 feet long by 5 1/2 feet high by 1 foot wide—viewing their numbered tags. The trusses were standing upright on their one-foot sides in preparation for installation, and had been placed on wooden planks (or dunnage) three to four feet apart from each other. A forklift operated by another employee of J.T. Erectors allegedly drove over a “soft spot” in the ground, causing its right tire to sink six to eight inches. As a result, the unsecured bar joist that the forklift was carrying shifted sideways approximately two feet and struck one of the vertically positioned trusses, which fell over onto plaintiff and pinned him between two trusses.
Plaintiffs asserted claims under
Initially, we reject plaintiffs’ argument that Supreme Court erred in dismissing their
“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.”
To establish entitlement to recovery under the statute, the plaintiff must demonstrate both that a violation of the statute—i.e., a failure to provide the required protection at a construction site—proximately caused the injury and that “the injury sustained is the type of elevation-related hazard to which the statute applies” (Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 7 [2011]; see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 288-289 [2003]). As acknowledged by the Court of Appeals, its “jurisprudence defining the category of injuries that warrant the special protection of
Two decades ago, the Court of Appeals first clarified the nature of the occupational hazards that warrant the protection of
“[t]he ‘special hazards’ . . . do not encompass any and all perils that may be connected in some tangential way with the effects of gravity[, but] . . . are limited to such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured” (id.).
That is, in the context of “elevation-related hazards” (id. at 500), liability attaches when a “protective device [has] proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person” (id. at 501).
Subsequently, the Court reaffirmed that “where a plaintiff was exposed to the usual and ordinary dangers of a construction site, and not the extraordinary elevation risks envisioned by
In other words, the Court repeatedly held, implicitly and explicitly, that it is not enough that a plaintiff‘s injury flowed directly from the application of the force of gravity to an object or person, even where a device specified by the statute might have prevented the accident. Absent an elevation differential, “[t]he protections of
More recently, the Court of Appeals has determined that the prior cases read
“[T]he dispositive inquiry . . . does not depend upon the precise characterization of the device employed or upon whether the injury resulted from a fall, either of the worker or of an object upon the worker. Rather, the single decisive question is
whether plaintiff‘s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” (Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d at 10, quoting Runner v New York Stock Exch., Inc., 13 NY3d at 603).
In determining whether an elevation differential is “physically significant” versus “de minimis,” the Court instructed that “the weight of the [falling] object and the amount of force it was capable of generating, even over the course of a relatively short descent,” must be taken into account (Runner v New York Stock Exch., Inc., 13 NY3d at 605; see Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d at 10; Harris v City of New York, 83 AD3d 104, 110 [2011]; see also Brown v VJB Constr. Corp., 50 AD3d 373, 376-377 [2008]).
In Runner, the Court also ruled that liability under the statute in a falling object case “does not . . . depend upon whether the object has hit the worker“; the “relevant inquiry” in that regard is “whether the harm flows directly from the application of the force of gravity to the object” (Runner v New York Stock Exch., Inc., 13 NY3d at 604). It does not appear that the Court intended to equate the “single decisive question” of whether there was a failure to provide protection against a “physically significant elevation differential” (id. at 603) with the “relevant inquiry” in “falling object cases” of “whether the harm flows directly from the application of the force of gravity to an object” (id. at 604). Put another way, there is no indication in Runner that the Court intended to impose a blanket rule that a physically significant elevation differential exists whenever an injury is gravity-related or gravity can be said to have contributed to the injury. Rather, this portion of Runner appears simply to have been instructing that liability under
In our view, plaintiffs’ argument reflects an incorrect understanding of the law. Runner did not overturn the core holdings of Ross and Rocovich “that
Moreover, the Court has subsequently reaffirmed that “[w]hether a plaintiff is entitled to recovery under
Here, the falling object was a 10,000-pound truss that had been set upright but remained on the ground in preparation for placement into the building structure. Plaintiffs allege that the truss “tipped over and fell” after it was struck by the bar joist being carried by the forklift, and that the truss hit plaintiff in the shoulder on its way down, knocking off his helmet and pushing him into an adjacent truss, which also fell. The truss that knocked plaintiff down as it fell generated sufficient force to cause severe injuries, crushing plaintiff‘s legs. It is undisputed that, as plaintiff asserts, “there is no question but that [he] was injured by the operation of gravity on the trusses.”
Notwithstanding the substantial weight of the truss and the significant force generated as it fell due to the force of gravity, however, there was no elevation differential present here, let alone a “physically significant elevation differential” (Runner v New York Stock Exch., Inc., 13 NY3d at 603). The truss and plaintiff were both at ground level, and they were either approximately the same height or plaintiff was slightly taller than the truss. Plaintiff‘s injury occurred after the truss was rendered unstable by an object that hit it horizontally—the bar joist, which shifted sideways on the forklift and pushed the truss into plaintiff (see Toefer v Long Is. R.R., 4 NY3d 399, 408 [2005], supra). Under these circumstances, plaintiff was exposed to “‘the usual and ordinary dangers of a construction site, and [not] the extraordinary elevation risks envisioned by
The parties’ remaining arguments do not require extended discussion. With respect to their
Furthermore, Supreme Court correctly denied defendants’ motion for summary judgment dismissing plaintiffs’
Here, plaintiffs alleged both that defendants failed to remedy a hazardous condition existing at the work site—the uneven ground, unstable soil and holes—and that the work was performed in a dangerous manner due to the failure to secure the bar joist on the forklift and the truss on the ground, and Luck‘s failure to properly prepare the site. While it is undisputed that defendants had no authority to supervise or direct the manner in which the work was performed, issues of fact exist regarding the cause or causes of the accident, and whether defendants had actual or constructive notice of the hazardous condition at the site (see Cook v Orchard Park Estates, Inc., 73 AD3d at 1265; see also Harrington v Fernet, 92 AD3d at 1071-1072; Reyes v Arco Wentworth Mgt. Corp., 83 AD3d 47, 52-53 [2011]; Gadani v Dormitory Auth. of State of N.Y., 43 AD3d at 1221). Finally, while plaintiffs’
The parties’ remaining arguments are rendered academic by our decision or not properly before us or, upon consideration, have been found to be lacking in merit.
Rose, Stein and McCarthy, JJ., concur.
Ordered that the order is affirmed, without costs.