Zimmer v. Chemung County Performing Arts, Inc.
| Decision Date | 28 June 1984 |
| Citation | 477 N.Y.S.2d 873,102 A.D.2d 993 |
| Parties | Charles T. ZIMMER, Jr., Appellant, v. CHEMUNG COUNTY PERFORMING ARTS, INC., Respondent, and Elcon Contractors, Inc., et al., Defendants and Third-Party Plaintiffs-Respondents; Mac-Dan Erectors, Inc., Third-Party Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Moran & Krenzer, P.C., Rochester (C.A. Krenzer, Rochester, of counsel), for appellant.
Davidson & O'Mara, Elmira (Kevin M. O'Shea, Elmira, of counsel), for respondent Chemung County Performing Arts, Inc.
Hall & Karz, Canadaigua (Samuel M. Hall, Canadaigua, of counsel), for defendant and third-party plaintiff-respondent Elcon.
Smyk & Smyk, Binghamton (Theodore J. Mlynarski, Jr., Binghamton, of counsel), for defendant and third-party plaintiff-respondent Elsand.
Coughlin & Gerhart, Binghamton (Peter H. Bouman, Binghamton, of counsel), for third-party defendant-respondent Mac-Dan.
Before KANE, J.P., and MAIN, MIKOLL, YESAWICH and HARVEY, JJ.
Appeal (1) from a judgment of the Supreme Court in favor of defendants, entered July 20, 1983 in Tioga County, upon a verdict rendered at Trial Term, and (2) from an order of said court, entered July 22, 1983 in Tioga County, which denied plaintiff's motion to set aside the verdict.
Plaintiff, a steel worker, was injured on February 18, 1977 while erecting the steel skeleton for an addition to the Samuel L. Clemens Performing Arts Center (PAC) in the City of Elmira. The accident occurred near the beginning stages of the work, while plaintiff was attempting to connect a horizontal beam to a vertical column. His duties as a "connector" required him, preliminarily, to assemble the beams and columns which would then be straightened or "plumbed" prior to being bolted together more securely. Accordingly, it was necessary for plaintiff to scale the vertical columns, some 31 feet in the air, to reach a position to direct the crane operator in raising the horizontal beam so that he could insert the initial bolts which would connect the steel members. On the day of his injury, plaintiff had climbed up the inside of a vertical column, the method most often used by connectors, and was waiting for the crane to lift up the steel beam he was to connect. As he reached over the top of the column, he lost his grip and fell 30 feet, first striking an outside beam and then landing in an excavation outside of the perimeter of the structure, fracturing two vertebrae and suffering other painful lacerations to his hip and buttocks. A ladder was available for plaintiff's use, but he had apparently declined an offer to use it on this occasion.
This action is brought against the reputed owner and general contractors, and also contains third-party actions against other contractors and suppliers. Plaintiff's cause of action is limited to a claim for damages as a result of violations of the provisions of sections 240 (subd. 1) and 241 (subd. 4) of the Labor Law. There is no allegation of common-law negligence. It is plaintiff's contention that he was entitled to a directed verdict at the close of the evidence because of a lack of a triable issue of fact, since defendants failed to offer any proof that they had provided safety devices at the construction site which would give proper protection to plaintiff, as required by the provisions of the statutes.
Section 240 (subd. 1) of the Labor Law 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.
Section 241 of the Labor Law, in applicable part, provides:
All contractors and owners and their agents * * * when constructing * * * buildings * * * shall comply with the following requirements:
* * *
* * *
4. If the floor beams are of iron or steel, the entire tier of iron or steel beams on which the structural iron or steel work is being erected shall be thoroughly planked over, except spaces reasonably required for proper construction of the iron or steel work, for raising or lowering of materials or for stairways and elevator shafts designated by the plans and specifications.
A violation of these statutory provisions imposes absolute liability upon an owner and general contractor when injuries occur to a worker as a result of their breach (Long v. Forest-Fehlhaber, 55 N.Y.2d 154, 159-160, 448 N.Y.S.2d 132, 433 N.E.2d 115; Engel v. Nedwidek, 91 A.D.2d 794, 458 N.Y.S.2d 282; Larabee v. Triangle Steel, 86 A.D.2d 289, 451 N.Y.S.2d 258). To impose such liability, the threshold determination must be a finding of applicability and violation of the statutory mandate, and if found, it must further be found that such violation was the proximate cause of plaintiff's damages (Smith v. Hooker Chems. & Plastics Corp., 89 A.D.2d 361, 363, 455 N.Y.S.2d 446 app. dsmd. 58 N.Y.2d 824). Here, the trial court submitted these issues to the jury as questions of fact to be determined by them. Since there was conflicting expert opinion as to what safety devices should be used during the very early stages of this construction, we view the procedure adopted by Trial Term to be correct (Ryan v. Cenci, 95 A.D.2d 963, 464 N.Y.S.2d 289; Glielmi v. Toys "R" Us, 94 A.D.2d 663, 462 N.Y.S.2d 225, affd. 62 N.Y.2d 664, 476 N.Y.S.2d 283, 464 N.E.2d 981; Bland v. Manocherian, 93 A.D.2d 689, 462 N.Y.S.2d 881; Phillips v. Flintkote Co., Glens...
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Zimmer v. Chemung County Performing Arts, Inc.
...under these circumstances is absolutely liable in damages for injuries sustained by such worker. In Zimmer v. Chemung County Performing Arts, 102 A.D.2d 993, 477 N.Y.S.2d 873, plaintiff, an ironworker, was injured while working as a member of a crew erecting a steel skeleton for an addition......
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Cutaia v. Bd. of Managers of the 160/170 Varick St. Condo.
...of owners and contractors is then negated" (65 N.Y.2d at 524, 493 N.Y.S.2d 102, 482 N.E.2d 898, quoting 102 A.D.2d 993, 995, 477 N.Y.S.2d 873 [3d Dept. 1984] [Mikoll, J., dissenting]). ...
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Heath v. Soloff Const., Inc.
...as to give proper protection to workers (see, e.g., McGrath v. Baranello, 107 A.D.2d 675, 483 N.Y.S.2d 738; Zimmer v. Chemung County Performing Arts, 102 A.D.2d 993, 477 N.Y.S.2d 873).* In Smith, plaintiff did not raise the question of whether the owner breached a duty to place devices so a......
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O'Brien v. Port Auth. of N.Y. & N.J.
...and contractors is then negated’ " (Zimmer, 65 N.Y.2d at 524, 493 N.Y.S.2d 102, 482 N.E.2d 898, quoting Zimmer v. Chemung County Performing Arts, 102 A.D.2d 993, 995, 477 N.Y.S.2d 873 [3d Dept.1984, Mikoll, J., dissenting] ; see Bland v. Manocherian, 66 N.Y.2d 452, 459, 497 N.Y.S.2d 880, 48......