Petticrew v. St. Lawrence Cement, Inc.

• Decision Date: 24 December 2008
• Docket Number: 504356.
• Parties: TIMOTHY E. PETTICREW et al., Respondents-Appellants, v. ST. LAWRENCE CEMENT, INC., et al., Appellants-Respondents.
• Court: New York Supreme Court — Appellate Division

57 A.D.3d 1266

870 N.Y.S.2d 556

2008 NY Slip Op 10087

TIMOTHY E. PETTICREW et al., Respondents-Appellants, v. ST. LAWRENCE CEMENT, INC., et al., Appellants-Respondents.

504356.

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

December 24, 2008.

(1) Appeal from an order of the Supreme Court (McNamara, J.), entered May 29, 2007 in Albany County, which, among other things, granted plaintiffs' motion for partial summary judgment, and (2) cross appeals from a judgment of said court (Platkin, J.), entered October 4, 2007 in Albany County, upon a decision of the court awarding damages to plaintiffs.

CARPINELLO, J.

This negligence and Labor Law action stems from an accident that plaintiff Timothy E. Petticrew (hereinafter plaintiff) had in the course of his employment as a welder. On the day in question, plaintiff was working atop scaffolding inside a kiln owned by defendant St. Lawrence Cement, Inc. when he fell, fracturing his leg and ankle. Supreme Court (McNamara, J.) granted plaintiff and his wife, derivatively, summary judgment on their Labor Law § 240 (1) cause of action and the matter proceeded to a trial on damages. Because we conclude that Supreme Court erred in granting plaintiffs summary judgment in the first instance, we modify that order and reach no other issue.

To recover under Labor Law § 240 (1), a worker must demonstrate that an owner or contractor has breached the statutory duty to provide elevation-related safety devices and that such failure was the proximate cause of the worker's injuries (see e.g. Ball v Cascade Tissue Group-N.Y., Inc., 36 AD3d 1187, 1188 [2007]; Albert v Williams Lubricants, Inc., 35 AD3d 1115, 1116 [2006]; Gilbert v Albany Med. Ctr., 9 AD3d 643, 644 [2004]). Here, plaintiffs allege that the scaffolding failed and that St. Lawrence neglected to provide a proper tie off point to which plaintiff could attach his safety harness and lanyard. Assuming that plaintiffs demonstrated a prima facie entitlement to summary judgment on this claim, "[w]hen the defendant presents some evidence that the device furnished was adequate and properly placed and that the conduct of the [worker] may be the sole proximate cause of his or her injuries, partial summary judgment on the issue of liability will be denied because factual issues exist" (Ball v Cascade Tissue Group-N.Y., Inc., 36 AD3d at 1188; see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 290 [2003]; Torres v Mazzone Admin. Group, Inc., 46 AD3d 1040, 1041 [2007], lv denied 10 NY3d 706 [2008]). We find that St. Lawrence has raised triable issues of fact precluding summary judgment on the Labor Law § 240 (1) claim.

The kiln in which plaintiff was working was a cylinder, 17 feet in diameter, and a "spider" had been erected on the inside so as to maintain the kiln's structural integrity during repair work. A spider is composed of steel beams arranged in the form of an asterisk and welded to the inside of the kiln at eight equidistant points, described by the parties with reference to positions on the face of a clock. The beams are also welded at the centerpoint and reinforced by a metal plate. At the time of his injury, plaintiff was in the process of dismantling the entire spider, which required him to stand on an eight- to nine-foot high scaffolding to permit him to cut each beam with a torch. He removed each beam in pieces, beginning at the ceiling and moving towards the center plate. Plaintiff testified at his deposition that, prior to beginning his work, he tied off his harness and lanyard to a pad eye^* that was affixed to the 12 o'clock beam, about a foot down from the kiln wall. According to him, he first removed the beams located at the 1 o'clock and 3 o'clock positions and then proceeded to cut the weld that attached the 12 o'clock beam to the kiln wall, a mere foot from the pad eye securing his lanyard. He further testified that he then began to remove the 11 o'clock beam and, as soon as he cut the weld that attached that beam to the kiln wall, the welds attaching the remaining beams failed and the spider collapsed, pulling him off the scaffolding to the floor of the kiln.

The only witness to the accident, plaintiff's coworker Edward Ulmer, related a drastically different version of events. Ulmer testified at his deposition that, just prior to the accident, all of the beams of the spider had been removed...