Staples v. Town of Amherst

• Decision Date: 14 April 1989
• Citation: 146 A.D.2d 292,540 N.Y.S.2d 926
• Parties: Paul C. STAPLES and Carol L. Staples, Respondents, v. TOWN OF AMHERST, Appellant, and Third-Party Plaintiff, et al., Defendant. M.C. Morgan Contractors, Inc., Third-Party Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 926

540 N.Y.S.2d 926

146 A.D.2d 292

Paul C. STAPLES and Carol L. Staples, Respondents, v. TOWN OF AMHERST, Appellant, and Third-Party Plaintiff, et al., Defendant. M.C. Morgan Contractors, Inc. Third-Party Defendant-Appellant.

Supreme Court, Appellate Division Fourth Department.

April 14, 1989.

Rosenthal, Siegel, Muenkel, Wolf & Curvin, by Steven P. Curvin, Buffalo, for appellant and third party plaintiff-appellant.

Damon & Morey by Mark Spitler, Buffalo, for third-party defendant-appellant.

Paul William Beltz, Buffalo, for respondents.

Before DILLON, P.J., and DENMAN, BOOMER, GREEN and LAWTON, JJ.

DENMAN, Justice:

On this appeal, we are called upon to reconsider our prior decisions holding that absolute liability under Labor Law § 240(1) may be imposed only upon a showing that the injured worker fell from an elevated work surface or was struck by an object falling from an elevated work surface. We decline plaintiffs' invitation to overrule our prior decisions and instead we adhere to the "falling worker or objects" test. Accordingly, we reverse the order granting partial summary judgment to plaintiffs on their § 240(1) claim and grant summary judgment to defendant dismissing that claim.

The papers submitted on plaintiffs' motion establish that plaintiff Paul Staples, ¹ an employee of third-party defendant M.C. Morgan Contractors, Inc. (Morgan), was a laborer at a construction site owned by defendant Town of Amherst (Town). Pursuant to its contract with the Town, Morgan, in replacing a sanitary sewer line, was excavating beneath the street. The crew had dug a trench approximately 10-11 feet deep and 12 feet wide and had begun to shore up the walls of the trench. On the order of their supervisor, Staples and a coworker descended into the trench and placed sheets of plywood against the walls of the trench. As the men prepared to brace the sheets of plywood, the wall of the trench caved in, injuring Staples and killing his coworker. It is uncontroverted that the Town did not provide any safety devices for the protection of the workers.

Plaintiffs commenced this action against the Town and the Town impleaded Morgan. Although plaintiffs' amended complaint is not contained in the record, it apparently states causes of action for negligence; violation of Labor Law §§ 200, 240(1) and 241(6) and regulations promulgated thereunder; and violations of OSHA and rules and standards promulgated thereunder. Plaintiffs subsequently moved for partial summary judgment on their Labor Law § 240(1) claim. In opposition to the motion, the Town raised only procedural objections which it reiterates on this appeal but which we do not find persuasive. Morgan opposed the motion and sought summary judgment on behalf of itself and the town on the ground that § 240(1) does not impose liability on these facts. The court granted plaintiffs' motion and entered partial summary judgment against the Town.

The Town and Morgan argue that Labor Law § 240(1) is inapplicable to these facts and that summary judgment therefore should be granted to defendant dismissing that claim. They contend that § 240(1) imposes liability only where the worker falls from an elevated work site or is hit by an object falling from an elevated work site. In response, plaintiffs contend that § 240(1) does apply to these facts and that we should reconsider our prior decisions employing the falling worker or objects test. We agree with appellants that, according to our prior decisions, a plaintiff may not recover under § 240(1) for injuries sustained in an excavation cave-in (see, Fox v. Jenny Eng. Corp., 122 A.D.2d 532, 505 N.Y.S.2d 270 affd. 70 N.Y.2d 761, 520 N.Y.S.2d 750, 514 N.E.2d 1374) and we reject plaintiffs' invitation to overrule our precedents and discard the falling worker or objects test. In our view, the test has historical roots, is based upon a rational reading of the statute, is in keeping with the legislative intent, and has proven to be a useful tool in segregating meritorious claims from those that are not appropriate for summary disposition and imposition of absolute liability.

Labor Law § 240(1) provides, in pertinent part: "All contractors and owners * * * 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." Historically, this statute, which has existed in various forms since 1885 (see, Wingert v. Krakauer, 76 App.Div. 34, 39-40, 78 N.Y.S. 664), was known as the "Scaffolding Law", and accordingly was given an extremely narrow interpretation (see, e.g., Broderick v. Cauldwell-Wingate Co., Inc., 301 N.Y. 182, 93 N.E.2d 629 [plaintiff denied recovery for fall resulting from collapse of formwork which he was building for a concrete floor; held, platform which collapsed was not a scaffold within the meaning of the statute] ). A prominent early case is Wingert v. Krakauer (supra ), where the court described the purpose of the statute as follows:

It seems to be evident, from the language of all this legislation, that its primary purpose was to protect the lives and limbs of persons who should be employed upon scaffolding, and in the enumeration of the appliances and contrivances which the master is under an absolute duty to make safe, is found hoists, stays, ladders or other mechanical contrivances. * * * In terms the statute protects the workmen in the use of a scaffolding for the alteration of any structure. It does not assume to define what the structure shall be or in what the alteration shall consist. If it be a structure, and if it be an alteration of such a character as requires the erection of a scaffolding to make it, it would seem to come, not only within the spirit, but literally within the terms of the act. It is as essential to protect the life and limb of a person in making use of a scaffolding necessary to effect an alteration in a room as it is to protect the same person in the use of a scaffolding in the erection or repairing of a house or structure where there exists necessity for the use of scaffolding.

* * *

* * *

(I)t is this insecurity in the use of the scaffold which the statute designed to protect rather than in the character of the work which was being prosecuted in order to effect the alteration. (Wingert v. Krakauer, supra, 76 App.Div. at 40-41, 78 N.Y.S. 664).

The Wingert court thus authorized recovery under the statute to a plaintiff injured when a scaffold collapsed on his foot (Wingert v. Krakauer, supra, at 37-38, 78 N.Y.S. 664). As recently as 1948, the Court of Appeals took a more restrictive view of the statutory protection. In Koenig v. Patrick Constr. Corp., 298 N.Y. 313, 83 N.E.2d 133, the court imposed liability under the statute for injuries sustained by a worker who fell from a ladder. Concluding that plaintiff was within the class protected by the statute, the court nonetheless stated, in dictum:

A different case would be before us if the injured person were a passerby or a workman struck by a falling ladder; as to them--persons outside the class for whose special benefit the statute was designed--a violation might do no more than evidence negligence. (Koenig v. Patrick Constr. Corp., supra, at 319, 83 N.E.2d 133 [emphasis supplied] ).

Thus, the weight of early authority seems to be that, in order to recover under the statute, plaintiff must have fallen while using one of the enumerated devices or, possibly, been struck by a falling device (Koenig v. Patrick Constr. Corp., supra; Wingert v. Krakauer, supra; but see, Armenti v. Brooklyn Union Gas Co., 157 App.Div. 276, 142 N.Y.S. 420 [held: statutory liability imposed in favor of plaintiff injured in cave-in of sewer excavation] ).

This court has applied that interpretation of the statute in a line of cases dating from our 1983 decision in DaBolt v. Bethlehem Steel Corp., 92 A.D.2d 70, 459 N.Y.S.2d 503, lv. dismissed 60 N.Y.2d 554, 467 N.Y.S.2d 1029, 454 N.E.2d 1318 appeal dismissed 60 N.Y.2d 701). In DaBolt, our first comment upon the issue in recent times, we held that "(s)ection 240 has historically been employed to protect workers at elevated heights from falls caused by defective safety equipment" (DaBolt v. Bethlehem Steel Corp., supra, 92 A.D.2d at 74, 459 N.Y.S.2d 503). We rejected the § 240(1) claim of a worker whose hand was crushed while he was repairing a conveyor belt on a steel slag separator. Subsequently, we rejected a § 240(1) claim brought by a worker who was injured by an electric shock when an aerial lift in which he was standing came into contact with power lines (Van Slyke v. Niagara Mohawk Power Corp., 93 A.D.2d 990, 461 N.Y.S.2d 643 affd. 60 N.Y.2d 774, 469 N.Y.S.2d 674, 457 N.E.2d 780). There, we held that the court erred in submitting the § 240(1) claim to the jury because "(t)hat section benefits only those persons injured by a fall from an elevated height due to a lack of, or defective, safety devices designed to prevent such a fall" (Van Slyke v. Niagara Mohawk Power Corp., supra, at 991, 461 N.Y.S.2d 643). Similarly, in Nagel v. Metzger, 103 A.D.2d 1, 478 N.Y.S.2d 737, we reiterated our holding in DaBolt that the statute historically had been employed to protect the safety of employees working on scaffolding and other elevated structures, and dismissed a § 240(1) claim brought on behalf of a worker who was killed when struck in the head by a tree trunk. The accident occurred when the tree, which was suspended from a crane by a wire, spun into the decedent when the wire twisted (Nagel v. Metzger, supra ).

Our next significant decision in this area was Siragusa v. State of New York, 117 A.D.2d 986, 499 N.Y.S.2d 533 lv. denied 68 N.Y.2d 602, 505...