Gordon v. Eastern Ry. Supply, Inc.

• Decision Date: 13 March 1992
• Citation: 581 N.Y.S.2d 498,181 A.D.2d 990
• Parties: Albert GORDON, Appellant, v. EASTERN RAILWAY SUPPLY, INC. and GATX Capital Corp., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 498

581 N.Y.S.2d 498

181 A.D.2d 990

Albert GORDON, Appellant, v. EASTERN RAILWAY SUPPLY, INC. and GATX Capital Corp., Respondents.

Supreme Court, Appellate Division,

Fourth Department.

March 13, 1992.

Lewis & Lewis, P.C. by Michael Skoney, Buffalo, for appellant.

Damon & Morey by Charles Carra, Buffalo, for respondent, Eastern Ry. Supply, Inc.

Harrison & Gruber, by John Gruber, Buffalo, for respondent, GATX Capitol Corp.

Before DENMAN, P.J., and BOOMER, GREEN, BALIO and DOERR, JJ.

MEMORANDUM:

Plaintiff was injured during his employment while sandblasting a railroad car in a sandhouse. Defendant GATX Capital Corp. (GATX) owned the railroad car; Eastern Railway Supply, Inc. owned the property where the sandhouse is located. The accident occurred when plaintiff fell off a ladder leaning against one side of the railroad car while he was using the sandblaster. Apparently the sandblaster had a defective trigger and continued to discharge sand as plaintiff fell to the ground. Plaintiff was injured by being blasted with the sand.

Supreme Court erred in denying plaintiff's motion for summary judgment under Labor Law § 240(1). The railroad car is a structure (see, Caddy v. Interborough Rapid Transit Co., 195 N.Y. 415, 420, 88 N.E. 747). Defendants GATX and Eastern, as owners of the structure and the premises, respectively, may be held liable irrespective of their control or supervision of the work (see, Celestine v. City of New York, 59 N.Y.2d 938, 466 N.Y.S.2d 319, 453 N.E.2d 548; Kerr v. Rochester Gas & Electric Corp., 113 A.D.2d 412, 416, 496 N.Y.S.2d 880). Thus, there is no merit to GATX's contention that it owed no duty to plaintiff because the work he performed was in Eastern's repair facility where GATX had no opportunity to monitor the work or to direct the manner in which the work was performed. Since the railroad car plaintiff was working on when he was injured is a structure, plaintiff is a member of a protected class and defendant GATX is absolutely liable for plaintiff's injuries. Moreover, the accident fits within the falling worker or objects test of this Department (see, Staples v. Town of Amherst, 146 A.D.2d 292, 540 N.Y.S.2d 926) and the test most recently pronounced by the Court of Appeals (see, Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 577 N.Y.S.2d 219, 583 N.E.2d 932).

We reject defendants' contention that there is an issue of fact whether plaintiff was a recalcitrant worker to whom defendants owed no continuing duty of supervision (see, Lickers v. State of New York, 118 A.D.2d 331, 334, 504 N.Y.S.2d 889; Smith v. Hooker Chems. & Plastics Corp., 89 A.D.2d 361, 365, 455 N.Y.S.2d 446, appeal dismissed 58 N.Y.2d 824). Defendants established only that there was a scaffold available in the sandhouse and that plaintiff had attended several safety meetings that included specific warnings not to sandblast from a ladder. Those affirmations are insufficient to defeat plaintiff's entitlement to summary judgment. An owner's statutory duty is not met merely by providing safety instructions or by making other safety devices available, but by furnishing, placing and operating such devices so as to give proper protection (see, Bland v. Manocherian, 66 N.Y.2d 452, 459-460, 497 N.Y.S.2d 880, 488 N.E.2d 810; Zimmer v. Chemung County Performing Arts, Inc., 65 N.Y.2d 513, 521-524, 493 N.Y.S.2d 102, 482 N.E.2d 898; Heath v. Soloff Constr. Inc., 107 A.D.2d 507, 510-512, 487 N.Y.S.2d 617). The fact that plaintiff chose to sandblast from a ladder rather than from a scaffold which may have been available would only establish his contributory negligence, which is no defense to liability under section 240(1) (see, Hagins v. State of New York, 159 A.D.2d 941, 552 N.Y.S.2d 797; Klien v General Foods Corp., 148 A.D.2d 968, 539 N.Y.S.2d 604; Koumianos v. State of New York, 141 A.D.2d 189, 534 N.Y.S.2d 512).

All concur, except BALIO, J., who dissents in part and votes to affirm in the following MEMORANDUM:

I agree with the majority that the railroad car constituted a "structure" within the meaning of Labor Law § 240(1) and that the subject accident is encompassed within this Department's falling worker or objects test. I cannot agree,...