Oakes v. Wal–Mart Real Estate Bus. Trust

• Decision Date: 19 July 2012
• Citation: 948 N.Y.S.2d 748,2012 N.Y. Slip Op. 05694,99 A.D.3d 31
• Parties: Darby J. OAKES et al., Appellants–Respondents, v. WAL–MART REAL ESTATE BUSINESS TRUST et al., Respondents–Appellants. (And a Third–Party Action.)
• Court: New York Supreme Court — Appellate Division

99 A.D.3d 31

948 N.Y.S.2d 748

2012 N.Y. Slip Op. 05694

Darby J. OAKES et al., Appellants–Respondents,

v. WAL–MART REAL ESTATE BUSINESS TRUST et al., Respondents–Appellants.(And a Third–Party Action.)

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

July 19, 2012.

Law Office of John A. Piasecki, Malone (Daniel A. Fried, New York City, of counsel), for appellants-respondents.

Lewis, Brisbois, Bisgaard & Smith, LLP, New York City (Michael N. Jagiani of counsel), for Wal–Mart Real Estate Business Trust and another, respondents-appellants.

Napierski, Vandenburgh, Napierski & O'Connor, LLP, Albany (Mark J. Dolan of counsel), for Luck Brothers, Inc., respondent-appellant.

Before: MERCURE, J.P., ROSE, STEIN and McCARTHY, JJ.

MERCURE, J.P.

Cross appeals from an order of the Supreme Court (Demarest, J.), entered June 20, 2011 in Franklin County, which, among other things, denied plaintiffs' motion for partial summary judgment.

Plaintiff Darby J. Oakes (hereinafter plaintiff) and his wife, derivatively, commenced this personal injury action after his legs were crushed in an accident on the premises of a construction site owned by defendant Wal–Mart Real Estate Business Trust in the Town of Massena, Franklin County. Plaintiff, an iron worker, was employed as a supervisor by third-party defendant, J.T. Erectors, LLC, a subcontractor retained by the general contractor, defendant Murnane Building Contractors, Inc. Defendant Luck Builders, Inc. (sued herein as Luck Brothers, Inc., hereinafter Luck) was the subcontractor hired to perform site preparation work, which included leveling, grading and filling.

As supervisor, plaintiff was responsible for reading the numbered tags on pieces of structural steel and, after comparing them to the blueprint, directing the sequence for the placement of the steel components into the building structure. Immediately prior to the accident, plaintiff was walking between two steel trusses—girders that measured approximately 30 feet long by 5 1/2 feet high by 1 foot wide—viewing their numbered tags. The trusses were standing upright on their one-foot sides in preparation for installation, and had been placed on wooden planks (or “dunnage”) three to four feet apart from each other. A forklift operated by another employee of J.T. Erectors allegedly drove over a “soft spot” in the ground, causing its right tire to sink six to eight inches. As a result, the unsecured bar joist that the forklift was carrying shifted sideways approximately two feet and struck one of the vertically positioned trusses, which fell over onto plaintiff and pinned him between two trusses.

Plaintiffs asserted claims under Labor Law §§ 200, 240(1) and § 241(6) against Wal–Mart and Murnane (hereinafter collectively referred to as defendants), as well as Luck Brothers. Defendants and Luck answered and cross-claimed against each other, and defendants commenced a third-party action against J.T. Erectors and brought a cross claim (denominated a third-party action) against Luck, seeking indemnification. Plaintiffs moved for, among other things, summary judgment on their Labor Law § 240(1) and § 241(6) claims, defendants moved for summary judgment dismissing the complaint, and Luck moved for summary judgment dismissing the complaint and all cross claims asserted against it. Supreme Court dismissed plaintiffs' claims under section 240(1) in their entirety, dismissed plaintiffs' section 241(6) and section 200 claims as to Luck only, and denied both defendants' and Luck's motions as to plaintiffs' common-law negligence claim. The parties cross-appeal, and we now affirm.

Initially, we reject plaintiffs' argument that Supreme Court erred in dismissing their Labor Law § 240(1) claim. Labor Law § 240(1) provides:

“All contractors and owners and their agents ... in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, 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.”

To establish entitlement to recovery under the statute, the plaintiff must demonstrate both that a violation of the statute—i.e., a failure to provide the required protection at a construction site—proximately caused the injury and that “the injury sustained is the type of elevation-related hazard to which the statute applies” ( Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d 1, 7, 935 N.Y.S.2d 551, 959 N.E.2d 488 [2011];see Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 288–289, 771 N.Y.S.2d 484, 803 N.E.2d 757 [2003] ). As acknowledged by the Court of Appeals, its “jurisprudence defining the category of injuries that warrant the special protection of Labor Law § 240(1) has [recently] evolved” ( Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d at 7, 935 N.Y.S.2d 551, 959 N.E.2d 488). A discussion of the recent changes in the law is necessary to the resolution of this appeal.

Two decades ago, the Court of Appeals first clarified the nature of the occupational hazards that warrant the protection of Labor Law § 240(1) in Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513–514, 577 N.Y.S.2d 219, 583 N.E.2d 932 [1991] and Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 500–501, 601 N.Y.S.2d 49, 618 N.E.2d 82 [1993]. Recognizing the “ ‘exceptional protection’ ” provided to workers under section 240(1), the Court limited the scope of the statute to “the ‘special hazards' that arise when the work site either is itself elevated or is positioned below the level where ‘materials or load [are] hoisted or secured’ ” (Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d at 500–501, 601 N.Y.S.2d 49, 618 N.E.2d 82, quoting Rocovich v. Consolidated Edison Co., 78 N.Y.2d at 514, 577 N.Y.S.2d 219, 583 N.E.2d 932). Further, the Court expressly refused to adopt a rule permitting recovery whenever the occupational “injury was ‘related to the effects of gravity’ ” (Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d at 500, 601 N.Y.S.2d 49, 618 N.E.2d 82), “even if the harm in question was caused by an inadequate, malfunctioning or defectively designed scaffold, stay or hoist” ( id. at 501, 601 N.Y.S.2d 49, 618 N.E.2d 82). Rather, the Court explained that “[t]he ‘special hazards' ... do not encompass any and all perils that may be connected in some tangential way with the effects of gravity[,] [but] ... are limited to such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured” ( id.). That is, in the context of “elevation-related hazards” ( id. at 500, 601 N.Y.S.2d 49, 618 N.E.2d 82), liability attaches when a “protective device [has] proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person

” ( id. at 501, 601 N.Y.S.2d 49, 618 N.E.2d 82).

Subsequently, the Court reaffirmed that “where a plaintiff was exposed to the usual and ordinary dangers of a construction site, and not the extraordinary elevation risks envisioned by Labor Law § 240(1), the plaintiff cannot recover under the statute” ( Toefer v. Long Is. R.R., 4 N.Y.3d 399, 407, 795 N.Y.S.2d 511, 828 N.E.2d 614 [2005] [internal quotation marks and citation omitted]; see Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487, 489–491, 634 N.Y.S.2d 35, 657 N.E.2d 1318 [1995] ). Even in cases involving a falling worker or falling object in which injury was caused by the force of gravity working on that person or object, “liability turn[ed] on whether a particular ... task create[d] an elevation-related risk of the kind that the safety devices listed in section 240(1) protect against” ( Broggy v. Rockefeller Group, Inc., 8 N.Y.3d 675, 681, 839 N.Y.S.2d 714, 870 N.E.2d 1144 [2007];see e.g. Toefer v. Long Is. R.R., 4 N.Y.3d at 408–409, 795 N.Y.S.2d 511, 828 N.E.2d 614 [no liability in separate actions in which the plaintiffs fell from flatbed trucks after being struck by an object that flew at the plaintiff horizontally and after the plaintiff's foot became tangled in a safety harness]; Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 269–270, 727 N.Y.S.2d 37, 750 N.E.2d 1085 [2001] [no liability in separate actions, including one in which the injury was caused by a light fixture falling from ceiling level onto the plaintiff who was working at the same level]; Melo v. Consolidated Edison Co. of N.Y., 92 N.Y.2d 909, 911, 680 N.Y.S.2d 47, 702 N.E.2d 832 [1998] [no liability where injury caused by falling steel plate that was being moved by defective hoist and perpendicular to ground, but with edge resting on ground or hovering just above ground]; Rodriguez v. Margaret Tietz Ctr. for Nursing Care, 84 N.Y.2d 841, 843–844, 616 N.Y.S.2d 900, 640 N.E.2d 1134 [1994] [no liability where the plaintiff was struck in the knee by a falling 120–pound beam that he was moving from seven inches above his head to ground level] ).

In other words, the Court repeatedly held, implicitly and explicitly, that it is not enough that a plaintiff's injury flowed directly from the application of the force of gravity to an object or person, even where a device specified by the statute might have prevented the accident. Absent an elevation differential, “[t]he protections of Labor Law § 240(1) are not implicated simply because the injury is caused by the effects of gravity upon an object” ( Melo v. Consolidated Edison Co. of N.Y., 92 N.Y.2d at 911, 680 N.Y.S.2d 47, 702 N.E.2d 832;see Narducci v. Manhasset Bay Assoc., 96 N.Y.2d at 270, 727 N.Y.S.2d 37, 750 N.E.2d 1085). And, as the cases cited above demonstrate, the fact that severe injury was caused by the force of gravity working on an object or person was insufficient to prove the...