Opinion
April 24, 1992
Appeal from the Supreme Court, Yates County, Falvey, J.
Present — Callahan, J.P., Boomer, Lawton, Boehm and Davis, JJ.
Order affirmed without costs. Memorandum: We affirm for reasons stated at Supreme Court (Falvey, J.). We add only that, as plaintiff testified at his examination before trial, he was walking alongside a trench when its bank gave way and he was precipitated down the steep slope into the excavation. Thus, at the time of the incident, plaintiff was not performing any task at an elevated worksite and was not exposed to the type of hazard that the use or placement of the safety devices enumerated in Labor Law § 240 (1) was designed to protect against (see, Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 513-514; see also, Staples v Town of Amherst, 146 A.D.2d 292, 296 [holding that the statute 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'"]).
All concur, except Callahan, J.P., and Davis, J., who dissent in part and vote to modify in the following Memorandum.
This court has consistently held that absolute liability should be imposed under Labor Law § 240 (1) when it is undisputed that a worker's injuries were the result of a fall from an elevated worksite and that there were no safety or protective devices in place at the time of his fall (see, Serino v Miller Brewing Co., [appeal No. 2], 167 A.D.2d 917, lv dismissed 78 N.Y.2d 1008; Collins v County of Monroe Indus. Dev. Agency, 167 A.D.2d 914, lv dismissed 77 N.Y.2d 874; Allen v City of Buffalo, 161 A.D.2d 1134; Staples v Town of Amherst, 146 A.D.2d 292; Goldbach v Erie County Indus. Dev. Agency, 142 A.D.2d 948, lv dismissed 73 N.Y.2d 865; Armstrong v Sherrill-Kenwood Water Dist., 135 A.D.2d 1081; Heath v Soloff Constr., 107 A.D.2d 507; DaBolt v Bethlehem Steel Corp., 92 A.D.2d 70, lv dismissed 60 N.Y.2d 554). In our view, the majority has departed from that precedent and, therefore, we respectfully dissent. Here, plaintiff was walking along the top edge of an open man-made trench en route to his assigned work area at the bottom of the trench when he slipped, fell approximately 8 to 10 feet to the bottom of the trench, and injured his right shoulder. The top of that trench was part of an elevated worksite (see, Allen v City of Buffalo, supra; Hagins v State of New York, 159 A.D.2d 941). Plaintiff averred, and it is undisputed, that "[i]n order to get into the section of the trench where [he] was assigned to work, [he] had to walk along the trench for about 150 feet to a point where the surface sloped down to the level about two feet above the trench bottom". The record establishes "that the owner and contractor violated [Labor Law § 240 (1)] by having failed to provide [plaintiff] with safety devices and that the violation was the proximate cause of his injury" (Heath v Soloff Constr., supra, at 512). The alternative argument of defendant, E.J. Button Sons, Inc. (Button), that the grant of partial summary judgment to plaintiff is not appropriate because the manner in which the accident occurred is within the exclusive knowledge of plaintiff (see, Carlos v Rochester Gen. Hosp., 163 A.D.2d 894) is raised for the first time on appeal. Thus, that issue is not properly before us (see, Arvantides v Arvantides, 106 A.D.2d 853, 854, mod on other grounds 64 N.Y.2d 1033). We would, therefore, modify Supreme Court's order to grant plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law § 240 (1) cause of action and to deny the cross motion of defendant Button for summary judgment seeking dismissal of that cause of action.