O'Brien v. Port Auth. of N.Y. & N.J.

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: Chief Judge DiFIORE.
• Citation: O'Brien v. Port Auth. of N.Y. & N.J., 29 N.Y.3d 27, 74 N.E.3d 307, 52 N.Y.S.3d 68 (N.Y. 2017)
• Decision Date: 30 March 2017
• Parties: Thomas J. O'BRIEN, Jr., Respondent, v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY et al., Appellants, et al., Defendants.

29 N.Y.3d 27

74 N.E.3d 307

52 N.Y.S.3d 68

Thomas J. O'BRIEN, Jr., Respondent,

v.PORT AUTHORITY OF NEW YORK AND NEW JERSEY et al., Appellants, et al., Defendants.

Court of Appeals of New York.

March 30, 2017.

Shaub, Ahmuty, Citrin & Spratt LLP, Lake Success (Christopher Simone, Robert M. Ortiz and Gerard S. Rath of counsel), and Fabiani Cohen & Hall, LLP, for appellants.

The Perecman Firm, P.L.L.C., New York City (David H. Perecman and Peter D. Rigelhaupt of counsel), for respondent.

OPINION OF THE COURT

Chief Judge DiFIORE.

The issue on appeal is whether the Appellate Division properly determined that plaintiff Thomas O'Brien was entitled to summary judgment on liability on his Labor Law § 240(1)cause of action. We conclude that there are triable issues of fact and that, therefore, summary judgment should have been denied.

Plaintiff was an employee of DCM Erectors (DCM), a subcontractor at the 1 World Trade Center construction site. Defendant Port Authority of New York and New Jersey was the owner of the premises and defendant Tishman Construction Corporation of New York was the general contractor.

On the day of the accident, plaintiff was working a 6:00 a.m. to 11:00 p.m. shift, maintaining two welding machines located on ground level at the site. It had been raining periodically during the day. At around 8:00 p.m., plaintiff headed downstairs to DCM's shanty, one level below ground, to get his rain jacket. Plaintiff used a temporary exterior metal staircase—also referred to as a temporary scaffold. He testified at his examination before trial that the metal staircase was wet due to exposure to the elements, that his foot slipped off the tread of the top step and that he fell down the stairs, sustaining injuries. Plaintiff testified that the stairs were "steep, slippery and smooth on the edges." He also stated that his right hand was on the handrail, but he was unable to hold on because the handrail was wet.

Plaintiff commenced this Labor Law action and, as relevant here, sought partial summary judgment on his Labor Law §§ 240(1) and 241(6) causes of action. In support, plaintiff submitted an expert affidavit from Walter Konon, a professional engineer and licensed building inspector with expertise in construction engineering and construction safety. Konon did not view the stairs themselves, but based his opinion on photographs in the record. Konon opined that the stairs were "not in compliance with good and accepted standards of construction site safety and practice" or with an Occupational Safety and Health Administration provision, which requires that slippery conditions on stairways be eliminated before use. Konon also stated that the stairs were "smaller, narrower and steeper than typical stairs," making it more difficult to maintain proper footing, and that the front portion of the stairs, which comes into contact with the workers' footwear, tended to become worn and slippery with use.

Konon claimed that the stairs showed signs of longstanding wear and tear. According to Konon, the only anti-slip measures in place at the time of plaintiff's fall were "small round protruding [metal] nubs," which offer "limited anti-slip protection" even when they are not worn down, as he maintained they were here. He further asserted that steel stairs have a tendency to become slippery when wet and have a decreased coefficient of friction, particularly when worn down. Konon concluded that

"[a]ll of these conditions coupled with the fact that the stairs were wet due to rain and that the workers were allowed to work and use the stairs despite the rain and the wet stair treads, created a dangerous condition that was not in compliance with good and accepted standards of construction site safety and created a significant risk of slipping on the stairs and of thus falling down the stairs."

Plaintiff also submitted an affidavit from a coworker, who stated that the stairs were slippery when wet and that "[a]lmost everyone was aware of the slippery nature of the stairs."

Defendants submitted two affidavits from their construction safety expert, David H. Glabe. Glabe is a licensed professional engineer and a consultant to the construction industry, specializing in scaffolding and staircases at construction sites. Like Konon, in his first affidavit, Glabe based his opinion on photographs of the staircase. He opined that the staircase was designed for both indoor and outdoor use and was "designed and manufactured so as to provide traction acceptable within industry standards and practice in times of inclement weather." He found "no evidence" that the perforated steel treads had been worn down by foot traffic. He further observed that the staircase provided both perforated holes to allow rain to pass through and raised metal nubs for traction, and opined that these anti-slip measures were sufficient. Glabe also disputed that the staircase was smaller, narrower or steeper than usual—rather, based on his experience, training and familiarity with this type of staircase, "the tread depth and width met good and acceptable construction industry standards."

In a subsequent affidavit, Glabe described his inspection of a staircase of the same make and model as the one at issue. He confirmed that there was adequate space on the tread surface of the steps so that a person descending the stairs could avoid contact with the "nose or front of the step." He characterized Konon's opinion that the stairs had a decreased coefficient of friction as "utterly meaningless" given Konon's failure to inspect or test the actual staircase either alone or in conjunction with testing plaintiff's footwear. Glabe also opined that the use of both handrails could have helped prevent plaintiff's fall. Finally, Glabe stated that, contrary to Konon's opinion, it was "not possible" to conclude from photographs in the record that the treads had been worn down. Rather, "the components of the staircase as designed will routinely outlast the use of a particular staircase and these types of staircases may eventually be replaced based only upon a new design rather than due to wear and tear."

Supreme Court denied the cross motions for summary judgment on plaintiff's Labor Law § 240(1) claim, finding that there were issues of fact as to whether the temporary staircase provided proper protection. The court, however, granted plaintiff's motion for partial summary judgment on the Labor Law § 241(6) claim, based on its determination that there had been a violation of Industrial Code (12 NYCRR) § 23–1.7(d) (relating to slipping hazards).

The Appellate Division modified the order, on the law, granting plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim and denying plaintiff summary judgment on the Labor Law § 241(6) claim (131 A.D.3d 823, 16 N.Y.S.3d 533 [1st Dept.2015] ).¹ The Court observed that there were conflicting expert opinions as to the adequacy and safety of the staircase but nonetheless held that it was "undisputed that the staircase, a safety device, malfunctioned or was inadequate to protect plaintiff against the risk of falling" (131 A.D.3d at 825, 16 N.Y.S.3d 533 ).

One Justice dissented in part and would have affirmed the denial of summary judgment on the Labor Law § 240(1) claim. The dissent would have held that the conflicting expert affidavits gave rise to questions of fact concerning whether the accident was the result of a statutory violation.

The Appellate Division granted defendants leave to appeal by certified question, asking "Was the order of the Supreme Court, as modified by this Court, properly made?" (2015 N.Y. Slip Op. 93137[U], 2015 WL 8394728 [1st Dept.2015] ). We answer the certified question in the negative.

Under Labor Law § 240(1), contractors and owners engaged "in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure" must provide "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." Although the statute is meant to be liberally construed to accomplish its intended purpose, absolute liability is "contingent upon the existence of a hazard contemplated in section 240(1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" (Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267, 727 N.Y.S.2d 37, 750 N.E.2d 1085 [2001] ). In other words, "[l]iability may ... be imposed under the statute only where the ‘plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential’ " (Nicometi v. Vineyards of Fredonia, LLC, 25 N.Y.3d 90, 97, 7 N.Y.S.3d 263, 30 N.E.3d 154 [2015], quoting 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] ).

To the extent the Appellate Division opinion below can be read to say that a statutory violation occurred merely because plaintiff fell down the stairs, it does not provide an accurate statement of the law. As we have made clear, the fact that a worker falls at a construction site, in itself, does not establish a violation of Labor Law § 240(1) (see e.g. Berg v. Albany Ladder Co., Inc., 10 N.Y.3d 902, 904, 861 N.Y.S.2d 607, 891 N.E.2d 723 [2008] ; Toefer v. Long Is. R.R., 4 N.Y.3d 399, 407, 795 N.Y.S.2d 511, 828 N.E.2d 614 [2005] ; Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 288, 771 N.Y.S.2d 484, 803 N.E.2d 757 [2003] ; Narducci, 96 N.Y.2d at 267, 727 N.Y.S.2d 37, 750 N.E.2d 1085 ). Moreover, the present case is distinguishable from "cases involving ladders or scaffolds that collapse or malfunction for no apparent reason" where we have applied "a presumption that the ladder or scaffolding device was not good enough to afford proper protection" (Blake, 1 N.Y.3d at 289 n. 8, 771 N.Y.S.2d 484, 803 N.E.2d...