146 A.D.2d 292 | N.Y. App. Div. | 1989
OPINION OF THE COURT
On this appeal, we are called upon to reconsider our prior decisions holding that absolute liability under Labor Law § 240 (1) may be imposed only upon a showing that the injured worker fell from an elevated work surface or was struck by an object falling from an elevated work surface. We decline plaintiffs’ invitation to overrule our prior decisions and instead we adhere to the “falling worker or objects” test. Accordingly, we reverse the order granting partial summary judgment to plaintiffs on their section 240 (1) claim and grant summary judgment to defendant dismissing that claim.
The papers submitted on plaintiffs’ motion establish that plaintiff Paul Staples,
Plaintiffs commenced this action against the Town and the Town impleaded Morgan. Although plaintiffs’ amended complaint is not contained in the record, it apparently states causes of action for negligence; violation of Labor Law §§ 200, 240 (1) and § 241 (6) and regulations promulgated thereunder; and violation of OSHA and rules and standards promulgated
The Town and Morgan argue that Labor Law section 240 (1) is inapplicable to these facts and that summary judgment therefore should be granted to defendant dismissing that claim. They contend that section 240 (1) imposes liability only where the worker falls from an elevated work site or is hit by an object falling from an elevated work site. In response, plaintiffs contend that section 240 (1) does apply to these facts and that we should reconsider our prior decisions employing the falling worker or objects test. We agree with appellants that, according to our prior decisions, a plaintiff may not recover under section 240 (1) for injuries sustained in an excavation cave-in (see, Fox v Jenny Eng’g Corp., 122 AD2d 532, affd 70 NY2d 761) and we reject plaintiffs’ invitation to overrule our precedents and discard the falling worker or objects test. In our view, the test has historical roots, is based upon a rational reading of the statute, is in keeping with the legislative intent, and has proven to be a useful tool in segregating meritorious claims from those that are not appropriate for summary disposition and imposition of absolute liability.
Labor Law § 240 (1) provides, in pertinent part: "All contractors and owners * * * 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.” Historically, this statute, which has existed in various forms since 1885 (see, Wingert v Krakauer, 76 App Div 34, 39-40), was known as the "Scaffolding Law”, and accordingly was given an extremely narrow interpretation (see, e.g., Broderick v Cauldwell-Wingate Co., 301 NY 182 [plaintiff denied recovery for fall resulting from collapse of formwork which he was building for a concrete floor; held, platform
"It seems to be evident, from the language of all this legislation, that its primary purpose was to protect the lives and limbs of persons who should be employed upon scaffolding, and in the enumeration of the appliances and contrivances which the master is under an absolute duty to make safe, is found hoists, stays, ladders or other mechanical contrivances. * * * In terms the statute protects the workmen in the use of a scaffolding for the alteration of any structure. It does not assume to define what the structure shall be or in what the alteration shall consist. If it be a structure, and if it be an alteration of such a character as requires the erection of a scaffolding to make it, it would seem to come, not only within the spirit, but literally within the terms of the act. It is as essential to protect the life and limb of a person in making use of a scaffolding necessary to effect an alteration in a room as it is to protect the same person in the use of a scaffolding in the erection or repairing of a house or structure where there exists necessity for the use of scaffolding. * * *
"[I]t is this insecurity in the use of the scaffold which the statute designed to protect rather than in the character of the work which was being prosecuted in order to effect the alteration.” (Wingert v Krakauer, supra, at 40-41.)
The Wingert court thus authorized recovery under the statute to a plaintiff injured when a scaffold collapsed on his foot (Wingert v Krakauer, supra, at 37-38). As recently as 1948, the Court of Appeals took a more restrictive view of the statutory protection. In Koenig v Patrick Constr. Corp. (298 NY 313), the court imposed liability under the statute for injuries sustained by a worker who fell from a ladder. Concluding that plaintiff was within the class protected by the statute, the court nonetheless stated, in dictum: "A different case would be before us if the injured person were a passerby or a workman struck by a falling ladder; as to them — persons outside the class for whose special benefit the statute was designed — a violation might do no more than evidence negligence.” (Koenig v Patrick Constr. Corp., supra, at 319 [emphasis supplied].) Thus, the weight of early authority seems to be that, in order to recover under the statute, plaintiff must have fallen while using one of the enumerated devices or, possibly, been struck
This court has applied that interpretation of the statute in a line of cases dating from our 1983 decision in DaBolt v Bethlehem Steel Corp. (92 AD2d 70, lv dismissed 60 NY2d 554, appeal dismissed 60 NY2d 701). In DaBolt, our first comment upon the issue in recent times, we held that "[s]ection 240 has historically been employed to protect workers at elevated heights from falls caused by defective safety equipment” (DaBolt v Bethlehem Steel Corp., supra, at 74). We rejected the section 240 (1) claim of a worker whose hand was crushed while he was repairing a conveyor belt on a steel slag separator. Subsequently, we rejected a section 240 (1) claim brought by a worker who was injured by an electric shock when an aerial lift in which he was standing came into contact with power lines (Van Slyke v Niagara Mohawk Power Corp., 93 AD2d 990, affd 60 NY2d 774). There, we held that the court erred in submitting the section 240 (1) claim to the jury because "[t]hat section benefits only those persons injured by a fall from an elevated height due to a lack of, or defective, safety devices designed to prevent such a fall” (Van Slyke v Niagara Mohawk Power Corp., supra, at 991). Similarly, in Nagel v Metzger (103 AD2d 1), we reiterated our holding in DaBolt that the statute historically had been employed to protect the safety of employees working on scaffolding and other elevated structures, and dismissed a section 240 (1) claim brought on behalf of a worker who was killed when struck in the head by a tree trunk. The accident occurred when the tree, which was suspended from a crane by a wire, spun into the decedent when the wire twisted (Nagel v Metzger, supra).
Our next significant decision in this area was Siragusa v State of New York (117 AD2d 986, lv denied 68 NY2d 602), where we affirmed the dismissal of a section 240 (1) claim by a worker injured when he drove a vehicle off a highway under construction. We held, "The statute is addressed to situations in which a worker is exposed to the risk of falling from an elevated work site or being hit by an object falling from an elevated work site” (Siragusa v State of New York, supra, at 987). In Fox v Jenny Eng’g Corp. (122 AD2d 532, affd 70 NY2d 761, supra), we dismissed a section 240 (1) claim by a worker who was struck by a rock that fell from the ceiling of a sewer
The other Departments have adopted differing interpretations of the statute. In a recent decision, the First Department dismissed a section 240 (1) claim brought by a worker injured while working at the bottom of an elevator shaft when a supporting chain proved insufficient to suspend a steel platform over his head (Yaeger v New York Tel. Co., — AD2d — [Mar. 7, 1989]). The Yaeger court held that the devices enumerated in the statute "all relate to work performed at elevated heights”, and thus concluded that the statute is directed exclusively "at work which is especially hazardous because it concerns heights” (Yaeger v New York Tel. Co., supra, at —). The Yaeger court indicated that it "preferred]” this court’s interpretation that that statute should be invoked only "where an employee’s injury is somehow related to work performed at heights,” yet took a more restrictive approach than our falling worker or objects test and seems to have insisted upon a strict fall requirement (supra, at —). Indeed, the dissent in Yaeger cited our Siragusa case (supra) in support of its contention that section 240 (1) permitted recovery on those facts (Yaeger v New York Tel. Co., supra [Asch, J., dissenting]).
The position of the Second Department is less clear. In its first significant discussion of the issue in recent times, the court, in dictum, quoted our Van Slyke decision (supra) for the proposition that the statute " 'benefits only those persons injured by a fall from an elevated height due to a lack of, or defective, safety devices designed to prevent such a fall’ ” (Mack v Altmans Stage Light. Co., 98 AD2d 468, 473). The Mack court stated that, in order to come within the ambit of
The Third Department has adopted the most liberal interpretation of the statute, although that court has spoken inconsistently on the point. In Smith v Jesus People (113 AD2d 980), a preSiragusa case, the Third Department indicated its rejection of the fall requirement enunciated in DaBolt and Van Slyke (supra) and upheld a section 240 (1) claim brought by a plaintiff who was struck by a plank that fell from a scaffold. In a companion case to Smith, Dougherty v State of New York (113 AD2d 983), the court rejected the fall requirement set out in Van Slyke and sustained a section 240 (1) claim brought by a plaintiff who slid down an embankment while placing a ladder. The dissent in Dougherty took the position that it was necessary for plaintiff to have been working at an elevated height in order to recover under the statute, although a fall was not strictly necessary (Dougherty v State of New York, supra [Harvey, J., dissenting]). In Amedure v Standard Furniture Co. (125 AD2d 170), a 3 to 2 decision, the Third Department relied on a causation analysis to reject a section 240 (1) claim brought by a carpenter who was injured while kneeling on a scaffold when struck in the eye by a ricocheting nail. Plaintiff claimed that the scaffolding was
In urging us to reconsider our prior decisions, plaintiffs argue that the Third Department’s interpretation of the statute is correct and point out that the Court of Appeals, in affirming our decision in Fox, declined to approve our application of the falling worker or objects test (Fox v Jenny Eng’g Corp., 70 NY2d 761, 763, supra). The Court of Appeals affirmed our decision in Fox on the ground that defendants were not owners or agents of the owner within the meaning of Labor Law § 240 (1), thus avoiding comment on the fall or
In our view, the falling worker or objects test has proven to be a useful tool in segregating those claims that are appropriate for summary disposition and imposition of absolute liability from those that are not. We have employed that test to dismiss claims which, in our view, the Legislature could not have intended to come within the coverage of the statute. For example, in Sherlock v Niagara Mohawk Power Corp. (— AD2d — [Apr. 14, 1989]), we rejected the claim of a worker who was injured by an electrical shock when a power ladder/ hoist that he was operating from the ground came into contact with a power line. In Herman v Lancaster Homes (145 AD2d 926, lv denied 74 NY2d 601, supra), we dismissed a section 240 (1) claim brought by a worker whose eye was pierced by a ricocheting nail while he was standing on a beam. In Dentico v Rochester Gas & Elec. Corp. (130 AD2d 953), we held the statute inapplicable to a claim on behalf of a worker who was electrocuted while carrying a ladder (see also, Siragusa v State of New York, supra). In contrast, the Third Department’s more liberal interpretation of the statute has led to results which, in our view, could not have been intended by the Legislature. To impose absolute liability for injuries sustained by a worker who slid down a slope at a work site (Dougherty v State of New York, supra) or who had a heart attack as a result of lifting heavy equipment (Gregory v General Elec. Co., supra) seems wholly unwarranted. The risk of such injuries does not constitute the "especially hazardous” risk that the statute was designed to guard against (Yaeger v New York Tel. Co., supra). We find it significant that the devices enumerated in the statute all commonly relate to the elevation of workers and their materials at construction sites (see, Yaeger v New York Tel. Co., supra). Indeed, because the injuries in Dougherty (slip and fall), Gregory (heart attack), and Region (electrocution) are risks of "a myriad of common every day work activities not involving heights” (see, Yaeger v
For tne foregoing reasons, we adhere to our prior decisions and conclude that Labor Law § 240 (1) does not impose liability in favor of a worker injured in the collapse of an excavation trench. Accordingly, the order appealed should be reversed and summary judgment should be granted to defendant dismissing plaintiffs’ cause of action alleging violation of Labor Law § 240 (1).
Dillon, P. J., Boomer, Green and Lawton, JJ., concur.
Order unanimously reversed, on the law, without costs, and summary judgment granted to defendant dismissing the cause of action alleging violation of Labor Law § 240 (1).
The claim of plaintiff Carol Staples is derivative.
