Schutt v. Bookhagen, 296

• Decision Date: 20 August 2020
• Docket Number: CA 19-01214,296
• Citation: 130 N.Y.S.3d 153,186 A.D.3d 1027
• Parties: Josiah SCHUTT, Plaintiff-Appellant-Respondent, v. Mark D. BOOKHAGEN and Stacie Bookhagen, Defendants-Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

186 A.D.3d 1027

130 N.Y.S.3d 153

Josiah SCHUTT, Plaintiff-Appellant-Respondent,

v.Mark D. BOOKHAGEN and Stacie Bookhagen, Defendants-Respondents-Appellants.

296

CA 19-01214

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

Entered: August 20, 2020

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is modified on the law by granting that part of the motion seeking summary judgment on liability with respect to the Labor Law § 240 (1) cause of action, and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained while working for a company that defendants had hired to install a new roof on one of their rental properties. Although plaintiff served as a ground laborer on the work site, he was injured when he fell from the roof. According to plaintiff, he had been instructed to go onto the roof and, while there, the toe board that he used to stabilize himself failed, causing him to slide off of the roof. He was not wearing a harness at the time.

Plaintiff appeals and defendants cross-appeal from an order that denied plaintiff's motion for summary judgment on the issue of liability with respect to his Labor Law §§ 240 (1) and 241 (6) causes of action and granted the motion to the extent that it sought a determination that the accident caused his injuries.

We agree with plaintiff on his appeal that Supreme Court should have granted the motion with respect to the Labor Law § 240 (1) cause of action, and we therefore modify the order accordingly. We conclude that plaintiff met his initial burden on that part of the motion by establishing that his " ‘injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential’ " ( Nicometi v. Vineyards of Fredonia, LLC , 25 N.Y.3d 90, 97, 7 N.Y.S.3d 263, 30 N.E.3d 154 [2015], rearg denied 25 N.Y.3d 1195, 16 N.Y.S.3d 54, 37 N.E.3d 113 [2015], quoting Runner v. New York Stock Exch., Inc. , 13 N.Y.3d 599, 603, 895 N.Y.S.2d 279, 922 N.E.2d 865 [2009] ; see Lagares v. Carrier Term. Servs., Inc. , 177 A.D.3d 1394, 1395, 113 N.Y.S.3d 790 [4th Dept. 2019] ; Provens v. Ben-Fall Dev., LLC , 163 A.D.3d 1496, 1498, 83 N.Y.S.3d 385 [4th Dept. 2018] ). Specifically, plaintiff submitted his deposition testimony, wherein he stated that the toe board failed, causing him to fall from the roof. He also testified that he was not provided with a harness and that there were no available harnesses nearby.

In opposition, defendants failed to raise a triable issue of fact whether plaintiff's "own conduct, rather than any violation of Labor Law § 240 (1), was the sole proximate cause of the accident" ( Luna v. Zoological Socy. of Buffalo, Inc. , 101 A.D.3d 1745, 1746, 958 N.Y.S.2d 807 [4th Dept. 2012] [internal quotation marks omitted] ). To establish a sole proximate cause defense, a defendant must demonstrate that the plaintiff had " ‘adequate safety devices available; that [the plaintiff] knew both that they were available and that he [or she] was expected to use them; that [the plaintiff] chose for no good reason not to do so; and that had [the plaintiff] not made that choice he [or she] would not have been injured’ " ( Fazekas v. Time Warner Cable, Inc. , 132 A.D.3d 1401, 1403, 18 N.Y.S.3d 251 [4th Dept. 2015], quoting Cahill v. Triborough Bridge & Tunnel Auth. , 4 N.Y.3d 35, 40, 790 N.Y.S.2d 74, 823 N.E.2d 439 [2004] ). Here, defendants submitted deposition testimony from the owners of plaintiff's employer, neither of whom wore a harness on the day of the accident, establishing that plaintiff may have been aware that harnesses were somewhere on the work site, was told to wear a harness while on the roof, and was instructed on how to wear a harness. Defendants, however, failed to raise a triable issue of fact whether "safety harnesses ‘were readily available at the work site, albeit not in the immediate vicinity of the accident’ " ( Lord v. Whelan & Curry Constr. Servs., Inc. , 166 A.D.3d 1496, 1497, 88 N.Y.S.3d 322 [4th Dept. 2018], quoting Gallagher v. New York Post , 14 N.Y.3d 83, 88, 896 N.Y.S.2d 732, 923 N.E.2d 1120 [2010] ). The " ‘presence of [other safety devices] somewhere at the worksite’ does not [alone] satisfy defendants' duty to provide appropriate safety devices" ( Williams v. City of Niagara Falls , 43 A.D.3d 1426, 1427, 843 N.Y.S.2d 902 [4th Dept. 2007], quoting Zimmer v. Chemung County Performing Arts , 65 N.Y.2d 513, 524, 493 N.Y.S.2d 102, 482 N.E.2d 898 [1985], rearg denied 65 N.Y.2d 1054, 494 N.Y.S.2d 1033, 484 N.E.2d 1055 [1985] ). Significantly, our dissenting colleagues do not address our prior determination that "the presence of a safety harness in [the] plaintiff's truck," was insufficient to raise a triable issue of fact whether the plaintiff's conduct was the sole proximate cause of the injuries sustained as a result of his fall from a roof ( id. ).

Further, "[t]he mere failure by plaintiff to follow safety instructions" does not render plaintiff the sole proximate cause of his injuries (cf. Fazekas , 132 A.D.3d at 1403-1404, 18 N.Y.S.3d 251 ; see generally Whiting v. Dave Hennig, Inc. , 28 A.D.3d 1105, 1106, 815 N.Y.S.2d 382 [4th Dept. 2006] ; Young v. Syroco, Inc. , 217 A.D.2d 1011, 1012, 629 N.Y.S.2d 931 [4th Dept. 1995] ). The evidence presented by defendants established only that plaintiff possibly failed to follow safety instructions, not that he outright refused to "use available, safe and appropriate equipment" ( Miles v. Great Lakes Cheese of N.Y., Inc. , 103 A.D.3d 1165, 1167, 958 N.Y.S.2d 847 [4th Dept. 2013] [internal quotation marks omitted]; see Powers v. Del Zotto & Son Bldrs. , 266 A.D.2d 668, 669, 698 N.Y.S.2d 74 [3d Dept. 1999] ). Defendants failed to demonstrate that plaintiff " ‘chose for no good reason not to’ " wear a safety harness ( Fazekas , 132 A.D.3d at 1404, 18 N.Y.S.3d 251 ). At most, plaintiff's "alleged conduct would amount only to comparative fault and thus cannot bar recovery under the statute" ( Lagares , 177 A.D.3d at 1395, 113 N.Y.S.3d 790 ).

Although defendants also submitted deposition testimony that, after the accident, all of the toe boards were in place and none had been broken, that testimony is of no moment. Regardless of whether the toe board at issue actually broke, that device did not adequately protect plaintiff from an elevation-related fall and therefore failed within the meaning of Labor Law § 240 (1) (see generally Wolf v. Ledcor Constr. Inc. , 175 A.D.3d 927, 929, 107 N.Y.S.3d 558 [4th Dept. 2019] ; Provens , 163 A.D.3d at 1498, 83 N.Y.S.3d 385 ). We also reject our dissenting colleagues' supposition that a harness, by itself, was an adequate safety device because there is no testimony in the record to establish that fact. Additionally, defendants have made no such argument on appeal.

Contrary to plaintiff's further contention on appeal, we conclude that the court properly denied the motion with respect to the Labor Law § 241 (6) cause of action. The Industrial Code provisions that plaintiff alleges defendants violated, i.e., 12 NYCRR 23-1.16 (c) and 12 NYCRR 23-1.24 (a) and (b), are "sufficiently specific to support a Labor Law § 241 (6) cause of action" ( Kuligowski v. One Niagara, LLC , 177 A.D.3d 1266, 1268, 112 N.Y.S.3d 383 [4th Dept. 2019] ; see Mills v. Niagara Mohawk Power Corp. , 262 A.D.2d 901, 902, 692 N.Y.S.2d 493 [3d Dept. 1999] ; Rudolph v. Hofstra Univ. , 225 A.D.2d 680, 681, 640 N.Y.S.2d 126 [2d Dept. 1996] ). However, plaintiff failed to meet his prima facie burden of establishing entitlement to summary judgment with respect to those Industrial Code provisions. Plaintiff alleges that he was not provided with a harness, which would render 12 NYCRR 23-1.16 (c) inapplicable (see Partridge v. Waterloo Cent. School Dist. , 12 A.D.3d 1054, 1056, 784 N.Y.S.2d 767 [4th Dept. 2004] ; Luckern v. Lyonsdale Energy Ltd. Partnership , 281 A.D.2d 884, 887, 722 N.Y.S.2d 632 [4th Dept. 2001] ). Moreover, although plaintiff stated that he was never provided with a harness or instructed on how to use one, he also submitted deposition testimony contradicting those assertions, thereby raising issues of fact. With regard to the other two Industrial Code provisions, both require evidence of the steepness of the slope of the roof, which plaintiff failed to provide (see Perri v. Gilbert Johnson Enters., Ltd. , 14 A.D.3d 681, 682, 790 N.Y.S.2d 25 [2d Dept. 2005] ).

Contrary to defendants' contention on their cross appeal, and in light of our decision to grant plaintiff's motion with respect to the Labor Law § 240 (1) cause of action, we conclude that the court properly granted the motion insofar as it sought a determination that those injuries identified in the medical examination reports were caused by the accident. To the extent that defendants challenge causation with respect to the other alleged injuries, that challenge is improperly based on evidence outside of the record (see generally McIntosh v. Genesee Val. Laser Ctr. , 121 A.D.3d 1560, 1561, 993 N.Y.S.2d 844 [4th Dept. 2014], lv denied 25 N.Y.3d 911, 2015 WL 3618883 [2015] ; Matter of Gridley v. Syrko , 50 A.D.3d 1560, 1561, 857 N.Y.S.2d 838 [4th Dept. 2008] ).

All concur except Smith, J.P., and Centra, J., who dissent and vote to affirm in the following memorandum:

We respectfully dissent and would affirm the order of Supreme Court. Plaintiff was employed as a ground laborer for a business owned by Sean Cryan (Sean) and Richard Cryan (Richard) that had been hired by defendants to install a new roof on their rental property. Although there was deposition testimony that ground laborers do not normally go on the roof, at the time of the accident plaintiff was on the roof attempting to untangle an air hose when he slid off the roof. No one witnessed the fall. Plaintiff testified at his deposition that a toe board "gave out," but Sean and Richard testified that, after the...