Johnson v. Small Mall, LLC

• Decision Date: 02 December 2010
• Citation: 912 N.Y.S.2d 735,79 A.D.3d 1240
• Parties: Craig D. JOHNSON, Appellant, v. The SMALL MALL, LLC, Respondent.
• Court: New York Supreme Court — Appellate Division

912 N.Y.S.2d 735

79 A.D.3d 1240

Craig D. JOHNSON, Appellant,

v.The SMALL MALL, LLC, Respondent.

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

Dec. 2, 2010.

Lachman & Gorton, Endicott (Richard F. Mihalkovic of counsel), for appellant.

Levene, Gouldin & Thompson, L.L.P., Binghamton (Daniel R. Norton of counsel), for respondent.

Before: PETERS, J.P., SPAIN, LAHTINEN, KAVANAGH and GARRY, JJ.

GARRY, J.

Appeal from that part of an order of the Supreme Court (Lebous, J.), entered November 9, 2009 in Broome County, which denied plaintiff's motion for partial summary judgment on the issue of liability pursuant to Labor Law § 240(1).

Plaintiff was injured while repairing roof trusses in defendant's building. To reach the trusses, repair workers walked on wooden joists located below and perpendicular to them. These joists were less than two inches wide and spaced two feet apart. The sheetrock ceiling of the room below was fastened to the underside of the joists, and electrical wiring ran between them. During the course of the project, several temporary walkways had been installed in the work area, but plaintiff testifiedwithout contradiction that these served only to "get you close to where you had to go," and that he could not access his work areas without walking on the joists. Plaintiff was walking across the joists to reach a structure that he was dismantling when he tripped on a wire, lost his balance, and fell through the sheetrock to the floor 16 feet below.

Plaintiff commenced this action alleging violations of Labor Law §§ 200, 240(1) and § 241(6) and, after joinder of issue, moved for partial summary judgment as to liability pursuant to Labor Law § 240(1). Defendant cross-moved for summary judgment dismissing the causes of action pursuant to Labor Law §§ 200 and 241(6). Supreme Court denied plaintiff's motion in its entirety and partially granted defendant's cross motion by dismissing the Labor Law § 241(6) cause of action. Plaintiff now appeals from that part of the order that denied his motion, contending that defendant violated Labor Law § 240(1) as a matter of law by failing to provide a safety device to prevent his fall.

Labor Law § 240(1) imposes a nondelegable duty upon owners to provide scaffolds or other safety devices to protect workers from elevation-related safety risks ( see Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 521, 493 N.Y.S.2d 102, 482 N.E.2d 898 [1985]; Deshields v. Carey, 69 A.D.3d 1191, 1192, 897 N.Y.S.2d 254 [2010] ). When the failure to provide such a device is the proximate cause of a worker's accident, the owner's liability is established as a matter of law ( see Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 289, 771 N.Y.S.2d 484, 803 N.E.2d 757 [2003]; Dalaba v. City of Schenectady, 61 A.D.3d 1151, 1152, 876 N.Y.S.2d 744 [2009] ).

Defendant contends that because the joists supported plaintiff as he worked, they were equivalent to scaffolding and therefore constituted a safety device. However, "calling a [structure] a scaffold does not make it one" ( Avelino v. 26 Railroad Ave., 252 A.D.2d 912, 913, 676 N.Y.S.2d 342 [1998] ). A scaffold is defined in the Industrial Code as "[a] temporary elevated working platform and its supporting structure including all components" (12 NYCRR 23-1.4[b][45]; see Rocha v. State of New York, 45 A.D.2d 633, 635, 360 N.Y.S.2d 484 [1974], lv. denied 36 N.Y.2d 642, 366 N.Y.S.2d 1026, 325 N.E.2d 880 [1975] ). In the area where plaintiff was working at the time of his injury, the joists supported no temporary platform, walkway, flooring, boards, or other separate surface of any kind. Labor Law § 240(1) is to be "liberally construed to effect its purpose of providing protection to workers" ( Gilbert v. Albany Med. Ctr., 9 A.D.3d 643, 644, 779 N.Y.S.2d 653 [2004] ); it would be completely inconsistent with this statutory purpose to find that the narrow joist tops, bordered on both sides by openings shielded only by insubstantial sheetrock, constituted platforms.

Although defendant argues that we have previously found various structures to be functionally equivalent to scaffolds because they supported workers in elevated positions, the essential issue underlying these determinations was whether the workers were exposed to elevation-related hazards, bringing their accidents within the ambit of Labor Law § 240(1)-a threshold inquiry not challenged in the circumstances here ( see Hanvey v. Falkes Quarry, 50 A.D.3d 1237, 1238, 854 N.Y.S.2d 819 [2008]; Beard v. State of New York, 25 A.D.3d 989, 991, 808 N.Y.S.2d 802 [2006]; Craft v. Clark Trading Corp., 257 A.D.2d 886, 887-888, 684 N.Y.S.2d 48 [1999] ). Indeed, in prior cases involving falls from open joists, we have treated them as elevated worksites and held that liability under Labor Law § 240(1) depended on whether safety devices such as scaffolding, safety harnesses or lanyards were furnished to protect workers from the elevation-related hazard...