Grgas v. Lend Lease (Us) Constr., LMB, Inc.
| Decision Date | 20 June 2014 |
| Docket Number | Index No.: 157410/12,Motion Seq. No. 002 |
| Court | New York Supreme Court |
| Parties | THOMAS GRGAS, Plaintiff, v. LEND LEASE (US) CONSTRUCTION, LMB, INC. f/k/a BOVIS LEND LEASE, LMB, INC., MOUNT SINAI SCHOOL OF MEDICINE OF NEW YORK UNIVERSITY and THE MOUNT SINAI HOSPITAL, Defendants. |
MEMORANDUM DECISION
In this action for personal injuries brought under, inter alia, New York State Labor Law §§ 240(1) and 241(6), plaintiff Thomas Grgas ("plaintiff") moves pursuant to CPLR 3212 for summary judgment on the issue of liability.
Plaintiff worked as a union (Local 12) insulator/installer at a construction site at which a new 12-story research facility at the Mount Sinai Center for Science and Medicine was being built (the "premises"). The premises are allegedly owned by defendants Mount Sinai School of Medicine of New York University and the Mount Sinai Hospital, and the alleged general contractor for the project is defendant Lend Lease (US) Construction, LMB, Inc., f/k/a Bovis Lend Lease, LMB, Inc. ("Lend Lease").
On March 28, 2012, plaintiff was working on the 11th floor of the premises in a generator room, installing insulation on a generator muffler while on a scaffold.1 The generator isapproximately 35-40 feet long, 12 feet high, and eight feet wide. Since the muffler is elevated from the ground level, the scaffold was required to install the insulation.
Plaintiff and his co-workers on the site constructed the scaffold one or two days before the incident. No guardrails were installed on the sides of the scaffold, purportedly due to the presence of existing duct work, and also because plaintiff's apprentice needed space to hand construction materials to him.
Before beginning the insulation work on the day of the accident, plaintiff or his apprentice set up a harness for plaintiff which contained a retractable lanyard and was subsequently hooked onto a designated tie-off location.
Patrick McAlarney ("McAlarney"), Lend Lease's health and environmental safety manager, testified that the tie-off was unable to be performed at the desired location directly horizontal over plaintiff's head because the finished ceiling had been completed. As a contingency plan, the tie-off location was designated at the muffler supports on the generator itself. McAlarney testified that such supports were capable of supporting weights up to 5,000 pounds. Additionally, McAlarney and plaintiff's foreman implemented a pre-task plan wherein plaintiff and his co-workers were instructed where and how to tie their lanyards off at the muffler supports.
The alleged incident occurred when plaintiff tripped on plastic covering on the scaffold; prior to the accident, protective plastic covering had been placed on and/or over the generator. Plaintiff's lanyard locked, and he fell approximately five feet. While suspended in the air, plaintiff's body was swung and slammed into the generator, which caused injuries to his left knee and left arm. According to McAlarney, plaintiff swung back and into the generator because thetie-off location was not in a perfect horizontal position over his head.
In the moving papers, plaintiff argues that defendants violated New York State Labor Law § 240(1), which imposes absolute lilability upon owners and general contractors for injuries sustained by construction workers who fall from heights due to the lack of proper protection. As is relevant, a plaintiff is not required to establish that the owner or general contractor had knowledge of the unsafe condition, since the only two elements of a Section 240(1) cause of action are that the statute was violated, and that the violation was a proximate cause of the injury. Here, defendants violated the section in that the scaffold was inadequate and defective since: (a) it was missing guardrails; (b) there was unsecured plastic covering on the scaffold planks; and (c) defendants failed to provide a proper anchor for plaintiff to affix his harness.
Providing a scaffold without guardrails violates Labor Law § 240(1) and establishes a prima facie case for the falling worker. Here, it is undisputed that the subject scaffold was missing guardrails, and it is irrelevant that plaintiff lost his balance prior to falling. Moreover, plaintiff was a "covered worker" performing a "covered activity" under Labor Law §§ 240(1) and 241(6). With further respect to this point, defendants also violated industrial code 12 N.Y.C.R.R. 23-5(j) (the "Industrial Code") due to their failure to provide a scaffold with appropriate safety rails.
Furthermore, the mere fact that plaintiff did not actually strike the ground below him does not affect his entitlement to summary judgment. Here, plaintiff's injuries were a direct result of a gravity-related risk, which became evident due to the lack of a safety rail on the scaffold as well as an improper tie-off location to which plaintiff's harness was attached. McAlarney admittedthe tie-off point which he approved was not horizontally aligned or in the ideal position, and caused plaintiff to swing back into the generator after he fell. Moreover, case law provides that an "almost fall" is not a valid defense to a Labor Law claim, and summary judgment is not precluded in this instance.
Also, plaintiff cannot be considered a "recalcitrant worker" since he was wearing his harness, which was affixed to the designated tie-off location. Likewise, the sole proximate cause defense is inapplicable here because there is evidence that defendants violated the Industrial Code.
In opposition, defendants argue that questions of fact exist as to whether plaintiff's own conduct constituted the sole proximate cause of the accident, and whether plaintiff was provided with an adequate safety device.
It is undisputed that plaintiff himself and his co-workers set up the scaffold, and failed to install the allegedly requisite guardrails. Plaintiff testified, inter alia, that either he or his apprentice set up the hooks to which they attached the retractable lanyard plaintiff wore during the incident; and the scaffold could not be completely enclosed with guardrails due to the presence of existing duct work.
McAlamey's testimony demonstrates the existence of an issue of fact as to whether the equipment provided to plaintiff was adequate. McAlarney testified that the identified tie-off points for plaintiff's lanyard were capable of supporting weights up to 5,000 pounds, and that he and plaintiff's foreman implemented a pre-task plan wherein plaintiff and his co-workers were instructed on where to tie their lanyards to, and how to tie them off.
Defendants thus contend that where there is evidence indicating that a plaintiff'snegligent construction of a scaffold/platform cause such a device to fail, the sole proximate cause defense is available. Here, plaintiff admits that he erected the scaffold which was involved in his accident, and that a guardrail had not been installed so his apprentice could hand materials up to him while he was standing on the scaffold.
Likewise, the motion as to the Industrial Code should be denied, as there is adequate evidence of plaintiff's own comparative negligence with respect to: (a) utilizing the scaffold without the proper guardrails in place; and (b) the failure of plaintiff to observe that the plastic which allegedly caused him to stumble and fall from the scaffold.
In reply, plaintiff notes that defendants do not dispute that plaintiff was a "protected worker" engaged in a "protected activity," or that he fell off a scaffold which was missing a guardrail. Additionally, defendants do not raise an issue of fact regarding the missing guardrail being the proximate cause of plaintiff's accident. Plaintiff reiterates his contentions as to the applicable case law, which provide that a scaffold without guardrails is a clear violation of Labor Law § 240(1).
The sole proximate cause defense cannot lie, because once a plaintiff establishes that a violation of Labor Law § 240(1) was a proximate cause of the accident, the plaintiff's conduct cannot be the sole proximate cause as a matter of law. On this note, the clear violation of the Industrial Code provides for absolute liability for both sections 240(1) and 241(6) of the Labor Law.
Defendants' claim that an issue of fact exists regarding sole proximate cause because plaintiff assisted in the erection of the scaffold is meritless because such conduct would, at most, constitute contributory negligence, which is not a defense to a Section 240(1) claim.
And, defendants' cited case law is factually distinguishable, as it concerned a situation in which the plaintiff himself removed the support pieces of the scaffold which resulted in his fall. Here, defendants inspected and approved the manner in which the scaffold was erected. In any event, the First Department has found absolute liability even in cases where the plaintiff was the individual who erected or dismantled the scaffold.
Moreover, defendants fail to address plaintiff's asserted violation regarding the tie-off location. The issue was not the manner in which plaintiff was hooked on, or the weight capacity of the tie-off location, as neither was a factor in the incident. The essential and undisputed issue is that defendants designated a tie-off location that was not directly above the area in which plaintiff worked, which created the very hazard that contributed to the incident. McAlarney admitted that he was aware that the tie-off location was not aligned with the working area, and acknowledged that the reason plaintiff swung back into the generator after falling was because the tie-off location was not aligned with his work location, but rather tied off at the muffler supports.
It is well established that the "proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a...
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