Kropp v. Town of Shandaken

• Decision Date: 12 January 2012
• Citation: 937 N.Y.S.2d 345,91 A.D.3d 1087,2012 N.Y. Slip Op. 00161
• Parties: John P. KROPP Jr. et al., Respondents, v. TOWN OF SHANDAKEN, Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00161

91 A.D.3d 1087

937 N.Y.S.2d 345

John P. KROPP Jr. et al., Respondents,

v.TOWN OF SHANDAKEN, Appellant, et al., Defendants.

Supreme Court, Appellate Division, Third Department, New York.

Jan. 12, 2012.

Mauro, Lilling Naparty LLP, Great Neck (Matthew W. Naparty and Anthony F. DeStefano of counsel), for appellant.

Melley Platania, P.L.L.C., Rhinebeck (Steven M. Melley of counsel), for respondents.

Before: PETERS, J.P., ROSE, KAVANAGH, McCARTHY and GARRY, JJ.

GARRY, J.

Appeal from an amended order of the Supreme Court (Cahill, J.), entered March 28, 2011 in Ulster County, which, among other things, partially granted plaintiff's motion for partial summary judgment.

In 2009, plaintiff John P. Kropp Jr. (hereinafter plaintiff) was struck and injured by an iron pipe while employed by Merritt Construction, Inc., which had contracted with defendant Town of Shandaken (hereinafter defendant) to construct a new water system. Plaintiff and his wife, derivatively, thereafter commenced this personal injury action alleging, among other things, violations of Labor Law § 240(1) and § 241(6). Following discovery, plaintiffs moved for partial summary judgment on the issue of liability under both statutes. Defendant opposed the motion and cross-moved for summary judgment dismissing the cause of action pursuant to Labor Law § 241(6). Defendant also separately moved to vacate the note of issue and certificate of readiness. Supreme Court granted plaintiffs' motion as to Labor Law § 240(1), did not address their motion as to Labor Law § 241(6) or defendant's cross motion, and denied defendant's motion to vacate the note of issue. Defendant appeals.

Initially, defendant contends that summary judgment as to liability under Labor Law § 240(1) is precluded by issues of fact as to how the accident occurred. The parties essentially agree that at the time of the accident, plaintiff was working at the bottom of a trench that was between four and eight feet deep, connecting lengths of pipe that were being lowered into the trench by an excavator operated by plaintiff's supervisor. They further agree that plaintiff was struck by an iron pipe measuring 18 inches in diameter and 18 feet long, and that fittings had been attached to one end of the pipe to permit it to be connected with a narrower pipe, resulting in a total weight of approximately 1,500 pounds. A device called a four way, consisting of a ring from which four chains with hooks on the ends were suspended, was used to lower the pipe into the trench. The ring was attached to the bucket of the excavator, and the chains were hooked to slings made of nylon straps wrapped around the pipe. While the parties agree that the pipe dropped as it was being moved, they disagree as to how far it dropped, why this occurred, and whether the hoisting equipment was adequate to meet the requirements of the task and Labor Law § 240(1).

Plaintiff testified that, just before the accident, he did not know that the pipe was being moved. He stated that he was squatting in the trench with his back to the excavator, cleaning the end of a previously laid pipe, when he heard chains rattling overhead and stood up. He allegedly saw the pipe as it fell past the surface level of the trench, struck him in the “midsection” and legs, and pinned him briefly against the wall of the trench. Plaintiff testified that the pipe was still suspended from its slings after it struck him and that he did not know why it fell, but that his supervisor and Mark Fisher, another Merritt employee, witnessed the accident and later told him that the chains had come unhooked. Plaintiffs submitted a workers' compensation employer's report (form C–2) prepared by a Merritt employee on the day after the accident stating that the accident occurred because a “chain let go and rehooked.” ¹

Steven Jacobs, a coworker, testified by affidavit that he was working in the trench near plaintiff when he saw the pipe being hoisted overhead. He stated that he moved away because he believed the load was improperly secured and that, when the pipe was six to eight feet above the bottom of the trench, he heard chains rattling and saw the pipe “drop free of the hooks” and strike plaintiff in the legs. Jacobs averred that the hooks lacked safety clips to prevent them from coming loose, and that Merritt had used this hoisting method only because it did not have an “OSHA-approved” clamp large enough for the 18–inch pipe. Plaintiffs' expert, a board-certified safety professional, opined that the accident was caused by the use of improper hoisting equipment that failed to properly balance and secure the pipe, allowing it to slip unexpectedly in its bindings, drop downward at one end, and strike plaintiff. He opined that tag lines, hooks fitted with safety self-closing latches, and an 18–inch pipe clamp, among other things, should have been used. We agree with Supreme Court that the foregoing evidence was sufficient to establish on a prima facie basis that plaintiff's injury arose from an elevation-related hazard, that defendant failed to provide adequate safety devices, and that the failure proximately caused the injury ( see Labor Law § 240[1]; Georgia v. Urbanski, 84 A.D.3d 1569, 1569, 923 N.Y.S.2d 274 [2011]; Jock v. Landmark Healthcare Facilities, LLC, 62 A.D.3d 1070, 1071–1072, 879 N.Y.S.2d 227 [2009] ).

Defendant contends that triable issues of fact exist based on the sharply different accounts of the accident offered by the other witnesses and its expert. Plaintiff's supervisor, who had a “bird's-eye” view of the trench from within the excavator, and Fisher, who was standing on the surface beside the trench, testified that before the pipe was hoisted, plaintiff was standing in the trench, facing the excavator, and that he signaled to the supervisor to move the pipe. The supervisor allegedly operated the excavator's bucket to raise the pipe about one foot off the ground and position it over the trench; Fisher then helped to guide the pipe as it was lowered into the trench. They testified that plaintiff put his hands on the pipe to guide it into place when the pipe was at the approximate level of his waist, and that the end of the pipe to which the fittings had been attached then dropped downward about one foot, striking plaintiff in the leg. Both testified that the hooks were equipped with safety clips and did not detach from the slings, and that the pipe was still suspended from the chains and slings after the accident occurred. Fisher testified that plaintiff did nothing to cause the accident, and that it was a “possibility” that the pipe slipped sideways in the sling before it dropped. Although the supervisor testified that the pipe “slid,” he also testified that he did not know if it had slipped, and he believed that plaintiff caused the pipe to drop by pushing downward on it with his hands. Defendant's expert engineer opined by affidavit that the hoisting mechanism was adequate and appropriate for the circumstances, and the accident occurred because plaintiff altered the balance of the load when he pushed on the pipe.²

Initially, we agree with Supreme Court that summary judgment in plaintiffs' favor is not precluded by the discrepancies in the witness accounts as to the distance of the pipe's fall. Despite defendant's contention that a one-foot drop, if proven, would be “de minimis” and thus outside the scope of protection of Labor Law § 240(1) ( Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 270, 727 N.Y.S.2d 37, 750 N.E.2d 1085 [2001] ), the dispositive inquiry is not merely how far the pipe fell, but “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 ” ( Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 603, 895 N.Y.S.2d 279, 922 N.E.2d 865 [2009] [emphasis added] ). The accident occurred while the 1,500–pound pipe in question was being lowered at least five or six feet into the trench where plaintiff was working; even if, as defendant contends, it did not fall until near the end of its descent and dropped only one foot before it struck plaintiff, such an elevation differential “cannot be viewed as de minimis, particularly given the weight of the object and the amount of force it was capable of generating” ( id. at 605, 895 N.Y.S.2d 279, 922 N.E.2d 865; see Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d 1, 10, 935 N.Y.S.2d 551, 959 N.E.2d 488 [2011] [standing metal pipes fell four feet]; Harris v. City of New York, 83 A.D.3d 104, 110, 923 N.Y.S.2d 2 [2011] [one-ton concrete slab fell three or four feet]; Pritchard v. Tully Constr. Co., Inc., 82 A.D.3d 730, 730–731, 918 N.Y.S.2d 154 [2011] [300–pound motor fell three feet]; Gutman v. City of New York, 78 A.D.3d 886, 886–887, 911 N.Y.S.2d 458 [2010] [1,300–pound rail fell 12 to 16 inches]; Brown v. VJB Constr. Corp., 50 A.D.3d 373, 376, 857 N.Y.S.2d 56 [2008] [1,000–pound stone slab fell three feet]; see also Ortlieb v. Town of Malone, 307 A.D.2d 679, 679–680, 763 N.Y.S.2d 174 [2003] [850–pound pipe rolled 15 feet down a slope and then fell three feet into a trench] ). The accident was attributable to “ ‘the pronounced risks arising from construction work site elevation differentials' ” and thus falls within the scope of Labor Law § 240(1) ( Davis v. Wyeth Pharms., Inc., 86 A.D.3d 907, 909, 928 N.Y.S.2d 377 [2011], quoting Runner v. New York Stock Exch., Inc., 13 N.Y.3d at 603, 895 N.Y.S.2d 279, 922 N.E.2d 865). However, the conflicting expert opinions as to the adequacy of the hoisting equipment and the divergent testimony as to whether safety clips were present on the hooks, and whether the accident occurred because these hooks came loose, because the pipe slipped in its slings or because plaintiff altered its balance by pushing on it, pose issues of fact as to whether the absence or inadequacy of a safety device...