Opinion
# 2014-018-510 Claim No. 120688 Motion No. M-84371 Cross-Motion No. CM-84380
04-14-2014
WESLEY ROCKWELL, JR. and LINDA ROCKWELL v. STATE OF NEW YORK
MAXWELL MURPHY, LLC By: Alan D. Voos, Esquire LAW OFFICES OF DESTIN C. SANTACROSE By: Robert S. Poveromo, Esquire
Synopsis
The Court finds Claimant has met his initial burden to establish that safety devices as enumerated in the statute were necessary to safely perform his work on the elevated work site, and the device provided was inadequate to protect him from the risk of falling. This violation of Labor Law section 240 (1) proximately caused his injuries. Summary judgment is granted and Defendant's cross motion for summary judgment is denied.
Case information
| UID: | 2014-018-510 |
| Claimant(s): | WESLEY ROCKWELL, JR. and LINDA ROCKWELL |
| Claimant short name: | ROCKWELL |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 120688 |
| Motion number(s): | M-84371 |
| Cross-motion number(s): | CM-84380 |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | MAXWELL MURPHY, LLC By: Alan D. Voos, Esquire |
| Defendant's attorney: | LAW OFFICES OF DESTIN C. SANTACROSE By: Robert S. Poveromo, Esquire |
| Third-party defendant's attorney: | |
| Signature date: | April 14, 2014 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves for summary judgment on his Labor Law section 240 (1) cause of action. Defendant opposes the motion and cross-moves for summary judgment dismissing the claim. Oral argument was heard on April 3, 2014. After reviewing all of the parties' submissions and considering the arguments the Court grants summary judgment to the Claimant, and denies Defendant's cross motion.
As Claimant Linda Rockwell's claim is solely derivative, use of the term Claimant in this Decision and Order will refer to Wesley Rockwell, unless otherwise noted.
Most of the substantive facts are undisputed. Claimant was employed by Diamond Roofing as a journeyman roofer in May, 2011. Diamond Roofing contracted with New York State to remove and reapply roofing at its Finger Lakes Residential Center in Lansing. Claimant had 22 years of experience as a roofer with many employers. He had been working for Diamond Roofing periodically and, on this job, he worked the prior season until December 2010, and then started again in April. On May 10, 2011, he began work at approximately 7:00 a.m. That morning, he proceeded to the area of roof where he was preparing to complete finishing work to the roof. The roof was pitched at about 4-to-12, which means that the angle dropped 4 feet for every 12 feet of roof. The roof on which he was working was approximately 10-to-12 feet off of the ground. Claimant was using his own harness and lanyard to hook onto a rope, or safety line, that was attached along the peak of the roof by a series of brackets called peak-anchor-rings. It is undisputed that when working on the roof, in order to move across the roof horizontally as one of the peak-anchor-rings was encountered, Claimant had to unhook from the safety rope and re-hook to the rope on the other side of the peak-anchor-ring. It was while Claimant was unhooked from the safety line and was in the process of trying to re-hook on the other side of the ring bracket when his feet slipped down the roof and he fell, suffering serious injuries. He was not working with anyone at that time, although there were other workers at different locations on site.
This is the job that Claimant indicated he performed at the 50-h (General Municipal Law § 50-h Examination of Claims) hearing five months after the accident; at his deposition he indicated he was a "foreman/roofer." The discrepancy is not decisive for purposes of this motion.
Claimant testified that approximately once each week a Diamond Roofing employee named Roger would come around and read a "tailgate topic," and then daily he would walk around to assess safety issues where people were working. Claimant referred to a notebook that Roger used to address specific safety issues, and Claimant would sign, acknowledging that he was advised of the safety information. The May 5, 2011 notebook entry provides: "He [claimant] has some frost on the rooftop; He [sic] will work in the areas were [sic] the frost as [sic] melted away. . ." Claimant signed that entry. Claimant acknowledged at his deposition that it was a safety practice to not work where there was frost.
Claimant's Exhibit F, 50-h hearing testimony of Wesley Rockwell, pages 24-25.
Claimant's Exhibit G, Claimant's deposition, page 69; Defendant's Exhibit J, Lansing May 5, 2011.
Defendant, in opposition to Claimant's motion, asserts that Claimant's injuries were not caused by a failure of the safety devices provided, but by his failure to use those safety devices and disregard specific instructions to always be tied off and not work on the roof where frost had accumulated. It is Defendant's position that Claimant's injuries are solely the result of his own "recalcitrance." Defendant points to the deposition testimony of Wade Granbois and Donald DeStefano indicating that they both told Claimant not to work on the roof from which he fell because it was shaded and still had frost on it. It is Defendant's position that Claimant's action in ignoring the safety warnings and work assignment establishes, as a matter of law, that he was the sole proximate cause of his injuries. Alternatively, Defendant argues that questions of fact have been raised. Defendant points to issues of Claimant's credibility since he acknowledged slipping on frost at the 50-h hearing six months after the accident, but had forgotten what he slipped on by the time his deposition was taken. There are also questions of fact about whether Claimant was told by Mr. DeStefano or Mr. Granbois where to work the morning of his fall.
Discussion
The obligation of the Court on a summary judgment motion is to identify genuine factual issues which need to be resolved by a trial (SJ Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 341 [1974]; Stillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). Only issues material to the resolution of the controversy are sufficient to defeat a motion for summary judgment (SJ Capelin Assoc., 34 NY2d at 341). In reviewing the evidence presented, the Court must view it in a light most favorable to the opposing party (Lickers v State of New York, 118 AD2d 331 [4th Dept 1986]). It is initially the burden of the party bringing the motion to establish entitlement to judgment as a matter of law; only then does the burden shift to the opposing party to come forward with evidence to convince the Court that there are issues of fact which must be determined after a full trial (Friends of Animals v Associated Furs Mfrs., 46 NY2d 1065 [1979]; Iwaszkiewicz v Callanan Indus., 258 AD2d 776 [3d Dept 1999]). Labor Law section 240 (1) provides in pertinent part:
"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 constructed, placed and operated as to give proper protection to a person so employed."This section of the Labor Law was designed to prevent those accidents in which the protective device employed failed or provided inadequate protection to shield the worker from the harm of the effects of gravity (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993]). In order to be successful on a motion for summary judgment in a Labor Law section 240 (1) case, Claimant must show "the existence of a hazard contemplated [by the statute] and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]).
"[T]he purpose of the strict liability statute is to protect construction workers not from routine workplace risks, but from the pronounced risks arising from construction work site elevation differentials, and accordingly, that there will be no liability under the statute unless the injury producing accident is attributable to the latter sort of risk" (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]).
Claimant has established, without dispute, that he was employed by Diamond Roofing as a roofer on a project to remove and replace the roofing on buildings owned by the State of New York. Before Claimant fell, he was squeegeeing water off the roof, a task that was performed at times on this project. To perform this work, Claimant needed to move horizontally across the roof. Using the fall protection system available to him, all the witnesses agreed that as Claimant worked along the roof, he would encounter a peak-anchor-ring that would require him to unhook his lanyard from the safety rope and rehook beyond the peak-anchor-ring. Claimant fell after he had unhooked his lanyard in order to get around the peak-anchor-ring. The safety device provided was not adequate to perform the required work and protect Claimant from the risk of injury due to the elevation of the roof (see Kouros v State of New York, 288 AD2d 566 [3d Dept 2001]; Desrosiers v Barry, Bette & Led Duke, Inc., 189 AD2d 947, 948 [3d Dept 1993]). It is not enough to furnish a safety device; to fulfill the statutory mandate the safety device must be "adequate" to protect against the elevation hazards and to safeguard the employee (Conway v New York State Teachers' Retirement Sys., 141 AD2d 957, 958 [3d Dept 1988]). The Court finds that Claimant has met his initial burden to establish that safety devices as enumerated in the statute were necessary to safely perform his work on the elevated work site, and the device provided was inadequate to protect him from the risk of falling. This violation of Labor Law section 240 (1) proximately caused his injuries.
Defendant's submissions, Exhibit I, Donald DeStefano's deposition testimony, pages 40, 44 and 50.
Defendant's submissions, Exhibit I, Donald DeStefano's deposition testimony, page 50. Claimant's DeStefano's deposition transcript is not complete.
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The Court now turns to Defendant's submissions to determine if it has raised a question of fact or established that Claimant's own conduct was the sole proximate cause of his fall. (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 289 n. 8 [2003]).
For purposes of this motion, the Court accepts as true Defendant's position that on the morning of Claimant's fall he was directed to work on another roof until all of the frost melted on the roof from which he fell. The Court also accepts as true that Claimant was caused to slip off the roof on which he was working due to frost. Even with those postulations, Defendant has failed to raise a material question of fact or to establish, as a matter of law, that Claimant was the sole proximate cause of his fall.
Claimant's failure to work on the roof to which he was directed, and his acknowledgment that for safety reasons he should not work on a roof with frost do not absolve Defendant from its non-delegable duty under Labor Law section 240 (1) (Luna v Zoological Socy. of Buffalo, Inc. 101 AD3d 1745 [4th Dept 2012]). "[I]f a statutory violation is a proximate cause of an injury, the [claimant] cannot be solely to blame for it." (Blake v Neighborhood Hous. Servs of N.Y. City, 1 NY3d at 290; Miles v Great Lakes Cheese of N.Y., Inc., 103 AD3d 1165, 1166 [4th Dept 2013]). The reason Claimant fell was that his lanyard was required to be unattached to the safety line for a period of time (see Desrosiers v Barry, Bette & Led Duke, Inc., 189 AD2d at 948). Whether Claimant slipped because of frost, wetness, or clumsiness, if his lanyard had been attached to the safety rope he would have been unable to fall off the roof. Poor judgment in selecting which roof to work on may have also contributed to his injury, but comparative negligence does not excuse a failure to comply with the mandatory requirements of the statute (Kouros v State of New York, 288 AD2d 566). There is no evidence, other than owner DeStefano's speculation, that Claimant refused to use an available safety device, and the failure to comply with a safety instruction is not the same as refusing to use an available and appropriate safety device; therefore, Claimant cannot be a recalcitrant worker (Miles v Great Lakes Cheese of N.Y., Inc., 103 AD3d at 1167; Szuba v Marc Equity Props., Inc., 19 AD3d 1176, 1177 [4th Dept 2005]).
Accordingly, based upon the foregoing, Claimant's motion for summary judgment is GRANTED and Defendant's cross motion for summary judgment is DENIED. A conference will be scheduled with counsel to determine when a damages trial will be conducted.
LET INTERLOCUTORY JUDGMENT BE ENTERED.
April 14, 2014
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following documents in deciding these motions:
M-84371
1) Notice of Motion.
2) Affirmation of Alan D. Voos, Esquire, in support, with exhibits and a Memorandum of Law attached thereto.
CM-84380
3) Notice of Cross Motion.
4) Affirmation of Richard Poveromo, Esquire, in support, with exhibits attached thereto.
5) Affirmation of Alan D. Voos, Esquire, in opposition, with exhibits and a Memorandum of Law attached thereto.