Opinion
150192/15
10-20-2017
Liman Vrlaku, Plaintiff, v. Plaza Construction Corporation, Defendants.
Attorney for Plaintiff James R. Schermerhon, ESQ Bamundo, Zwal & Schermerhorn 111 John Street, Suite 1100 New York, NY 10038 Attorney for Defendant John T. Rafter, Esq Rafter & Associates 29 Broadway, 14th Floor New York, NY 10006
Attorney for Plaintiff James R. Schermerhon, ESQ Bamundo, Zwal & Schermerhorn 111 John Street, Suite 1100 New York, NY 10038 Attorney for Defendant John T. Rafter, Esq Rafter & Associates 29 Broadway, 14th Floor New York, NY 10006 Philip S. Straniere, J.
Plaintiff, Liman Vrlaku (Vrlaku), commenced this civil action in Supreme Court, Richmond County against the defendant, Plaza Construction Corporation (Plaza), alleging that owing to the defendant's failure to comply with New York's Labor Law, plaintiff suffered a serious personal injury. A non-jury trial on the issue of liability only was held on July 17, 18, 19, 20 & 21, 2017. Both sides were represented by counsel. Post-trial briefs were submitted. Background:
Plaintiff was an employee R & J Construction (R & J), a subcontractor of defendant Plaza. Plaza was hired by the School Construction Authority to serve as the general contractor (GC) for the building of Maspeth High School in Queens, New York. On April 30, 2012, plaintiff was assisting Colin Colbourne (Colbourne), a senior co-worker, installing sheetrock along the ceiling of the gymnasium. Plaintiff and Colbourne were about thirty-feet in the air on a scissor-lift, apparently a JLG model 2630-ES, rented by R & J for use at the site. It is conceded that there were several scissor lifts and other devices to do work at heights used at the job-site. The exact scissor-lift was never identified nor was there any evidence that the scissor-lift in question was either examined post-incident or taken out of service for repairs.
The incident occurred in the early afternoon, after the workers' lunch break. Plaintiff and Colbourne, prior to going aloft in the scissor-lift, had cut a four by eight-foot piece of sheet rock into a smaller piece to fit into a spot along the ceiling, placed it into the scissor-lift and ascended to the ceiling area. The scissor-lift was operated by Colbourne. It came to a stop and Colbourne, who was a journeymen-carpenter began to install the sheetrock. Plaintiff was to the right of Colbourne in the scissor-lift and held the sheetrock in place by placing his right arm underneath the section while his left arm held the sheetrock at a higher spot. Although not resting his right arm on the railing of the scissor-lift, it was above the railing. Plaintiff stated that the scissor-lift suddenly moved in an upward direction catching his right arm between the sheetrock, which was now against the ceiling and the railing, causing his injuries. Plaintiff alleges that when the sheetrock hit the ceiling it cracked and fell onto his right arm. His right arm was caught between the railing and the falling sheetrock. This contradicted his deposition testimony where he stated that Colbourne ripped the sheetrock down to prevent it from falling. When Colbourne realized that the plaintiff was injured he broke off the sheetrock and lowered the platform area of the scissor-lift. Colborne testified he did see the actual incident, but that the lift moved and that when he realized plaintiff was hurt, he took steps to control the piece of sheet rock being installed.
At the trial both Vrlaku and Colbourne testified that the scissor-lift was operated by Colbourne. Defendant's Site Safety Manager, Scott Palumbo, testified that he completed an accident report after the incident by interviewing Vrlaku only, and that Vrlaku stated that he had operated the scissor-lift and had hit the gear box while holding the sheetrock causing the accident. Palumbo did not witness the event. The report, with that statement, was never shown to nor signed by plaintiff. Its contents were contradicted by the testimony of the two individuals involved in the event. They agree that Colbourne operated the scissor-lift and that plaintiff was not near the gearbox at the time of the occurrence. Both deny indivertibly hitting the gear box.
The accident report completed by Plaza and the one completed by R & J both contain the exact same language as to how the accident happened. Neither of which was signed by the plaintiff. Neither indicated that Colborne was also interviewed. The contents of each report must be rejected and is contradicted by the testimony of the two participants.
Plaintiff alleges that the defendant violated Labor Law §240(1); §241(6) & §200. Defendant denies that any Labor Law violations took place. Issues Presented:
A. Did the Defendant Violate Labor Law §240(1)?
Labor Law §240 provides:
Scaffolding and other devices for use of employees
1. All contractors and owners and their agents, except owners of one and two-family dwellings who contract but do not direct or control the work, 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.
Case law has consistently held that to prevail on a §240(1) claim, the injury must be caused by a gravity-related incident with the worker either falling from a height or being struck by an improperly hoisted or inadequately secured object [Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494 (1993)]. "The relevant inquiry-one which may be answered in the affirmative even in situations where the object does not fall on the worker-is rather whether the harm flows directly from the application of gravity to the object" [Runner v New York Stock Exchange, 13 NY3d 599 (2009)].
Plaintiff argues that the injury was gravity related in that the sheetrock started to fall once the scissor-lift moved and plaintiff lost his grip when his arm was caught between the railing of the scissor-lift and the sheetrock.
Defendant asserts that the plaintiff's injury is not gravity related because the credible testimony is that the scissor-lift moved in an upward direction trapping plaintiff's arm. If the scissor-lift is ascending, there is no recovery because it is not a gravity related injury [Gasques v State of New York, 15 NY3d 869 (2010)]. Case law agrees with David Clayton Thomas in "Spinning Wheel" that "what goes up must come down" thereby creating a gravity related injury.
In an effort to create a cause of action under §240(1) plaintiff's rendition of how the incident occurred changed from his deposition where he stated his arm was resting on the railing supporting the sheetrock when the lift ascended trapping his arm between the sheetrock and the ceiling. When he realized plaintiff was hurt, Colbourne then cracked the sheetrock and pulled it down. His trial testimony was that he was supporting the sheetrock free of the railing, the lift ascended, cracked the sheetrock causing it to fall on his arm, pinning it against the lift railing. As stated above Colbourne has no recollection of how the incident occurred.
Applying these rulings to the facts of this case it appears that had the scissor-lift lost elevation, causing the sheetrock to crack, injuring the plaintiff, the plaintiff would be entitled to recover because gravity would have led to the sheetrock cracking and falling. But because the scissor-lift ascended, it is not a gravity related incident. On the other hand, if there was no gravity, the sheetrock would never fall, it would have to be held in place to prevent it from floating away and could be secured to the ceiling without any fear it would fall. For that matter, the workers would be floating as well. Which gives rise to the question, "what did we do before the law of gravity was passed?"
As the court noted in Ross, the "special hazards" referred to in the line of cases cited by defendant, "do not encompass any and all perils that may be connected in some tangential way to the effects of gravity." Applying this standard to the facts of this case, it must be concluded that the plaintiff's injuries are not "gravity related." The injury did not occur from the sheetrock falling, the injury resulted from the sheetrock being caught between the ceiling and the railing with plaintiff's arm under it. The upward movement of the scissor-lift is the competent causing factor and not gravitational pull on the sheetrock. There is no evidence that the sheetrock cracked independent of hitting the ceiling. It was testified that a four foot by eight foot piece of sheetrock weighs seventy-five pounds. The piece in quotation has been cut to a smaller size, so it is not credible that he plaintiff could not support the weight especially since a portion had bee affixed to the ceiling . Characters in "Wicked" may be "Defying Gravity" but no such concept exists in law. The plaintiff is not entitled to recover pursuant to §240(1).
B. Did the Defendant Violate Labor Law §241(6)?
Labor Law §241(6) provides:
Construction, excavation and demolition work
All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control work, when constructing or demolishing buildings or doing any excavation in connection therewith, shall comply
with the following requirements:
6. All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.
Defendant contends that this section is not applicable because the incident took place on a scissor-lift and the term "scissor-lift" is not defined anywhere in the Industrial Code. Plaintiff asserts that a "scissor-lift" is covered by the term "aerial basket" [12 New York Code, Rules, & Regulations (NYCRR) 23-1.4(b)(2)] and that "where aerial basket controls are so located that they may come into contact with obstructions, such controls shall be protected by guarding or equivalent protection shall be provided" [12 NYCRR §23-9.6(b)(1)]. Both plaintiff and defendant have taken the position that for the plaintiff to prevail under this Labor Law section, the court must find a violation of the Industrial Code.
The court does not agree with the interpretation that a violation of the Industrial Code must be established to prevail under this section. §241(6) contains two sentences. The first requires the owner and contractors to "provide reasonable and adequate protection and safety to the persons employed therein." This is an independent sentence which creates an obligation to provide a safe workplace irrespective of any rules of the commissioner. The next sentence says that the commissioner may make rules to enforce this mandate. Because it is a separate sentence, it does not preclude a plaintiff recovering where there is a lack of adequate protections even in the absence of a commissioner's regulation.
The fact that there is no regulation of the commissioner specific to a "scissor-lift," does not mean it is not a covered piece of equipment. The second sentence states: "the commissioner may (emphasis added) make rules to carry into effect the provisions of this subdivision ." There is no requirement that the commissioner create a regulation. The statute does not say "shall" in this regard. This means that a reasonable person standard should be applied when equipment is used that is not mentioned in the commissioner's regulations. As a matter of fact, such a conclusion is consistent with the language of this Section 23-1.4 "Definition."
The preamble to the section provides:
As used in this Part (rule) such general terms as adequate, effective, equal, equivalent, firm necessary, proper, safe, secure, substantial, sufficient, suitable and other similar terms when used to describe to materials, devices, structures, methods and procedures required by the Part (rule) shall mean that such materials, devices, structures, methods and procedures shall be of such kind and quality as a reasonable and prudent man experienced in construction, demolition and excavation operations would require in order to provide safe working conditions for himself in the performance of such work (emphasis added).
Would a reasonably prudent person believe that a scissor-lift is a safe method to install materials in a building at an elevation in a manner equivalent to a scaffolding or an aerial basket? The answer must be "yes." Scissor-lifts have been used at construction sites for years without the existence of a commissioner's regulation. If they are unsafe even when properly used then they should be banned. If they are safe and in common use, then why has not the commissioner added them to the list of covered equipment? It does not make sense that courts should have to speculate as to which regulation covers scissor-lifts because the commissioner has failed to cover a commonly used aerial device. Or should there by a presumption that scissor-lifts are unsafe because they are not covered by a commissioner's regulation?
The parties rely on the holding in Ross that the first sentence of §241(6) is merely a restatement of the common-law negligence standard and it alone cannot support a cause of action under §241(6). A violation of an Industrial Code safety standard is required otherwise only a Labor Law §200(1) cause of action is stated.
Scissor-lifts have been recognized as being covered by Industrial Code [Brown v Ciminelli-Cowper, Inc., 2 AD3d 1308 (2003)] as the functional equivalent of "scaffolding" but not the same as an "aerial basket" [DeFeo v City of New York, 25 Misc 3d 1221(A) (2009)]. Yet in Karcz v Klewin Building Co., 85 AD3d 1649 (2011) the court found that a scissor lift is an "aerial basket." This court believes it does not matter that scissor-lifts are not defined in the regulation. It is covered by §241(6) and as such it must be operated in a manner to adequately protect workers. If scissor-lifts are not covered by the Industrial Code, then the plaintiff is limited to a common-law negligence action because there is no regulation to violate.
The issue is not whether a scissor-lift is specifically defined in the Industrial Code or whether it is "scaffolding" or an "aerial basket," it is a device commonly used to do construction work at heights and therefore is subject to the safety requirements of §241(6). The issue is can a scissor-lift be operated "to provide reasonable and adequate protection and safety" as required by the first sentence of the statute and not whether there is a specific regulation applicable to scissor-lifts.
The idea is to ensure that the employees working at heights are safe and not a threat to themselves or persons on the ground due to unsafe equipment. This being the case it should not matter whether the worker is aloft because Tinkerbell sprinkled pixie-dust; the employer borrowed Phileas Fogg's balloon, or they contracted to ride on the head of union giraffes. The safety of the device being used is the test.
In any case, violation of the commissioner's regulations is merely some evidence of negligence [Misicki v Caradonna, 12 NY3d 511 (2009)]. Allegations of a plaintiff that there was a violation of the general regulatory provisions of the Industrial Code have been held to be insufficient to sustain a cause of action under §241(6) [Ross @502]. To prevail under this section, it must be determined that the safety measures employed were reasonable and adequate under the circumstance [Nagel v D & R Realty Corp., 99 NY2d 98 (2002)]. There has been no testimony as to what steps could have been taken to prevent the incident. Photographs of what purports to be the scissor-lift being used, show that the lift was operated by a "joy stick" and it is surrounded to some degree by a railing so as to prevent it from being hit accidentally.
In fact, a finding that scissor-lifts are not covered by the statute would create a worse situation for the defendant as it provided the Site Safety Manager for the project. It is undisputed that scissor-lifts and other aerial devices were being used by the subcontractors at the site. If scissor-lifts are not covered by the Labor Law or the Industrial Code, then maybe they are by their nature "unsafe" and should not have been allowed at the site. Why else would the commissioner fail to issue a regulation for a device commonly used at construction sites? Defendant cannot argue that scissor-lifts are not covered by the law and yet permitted them to be used at the construction site for work at elevations.
Plaintiff contends that the scissor-lift is an "aerial basket" and that §23-9.6(b)(1) applies. It provides:
(b) Aerial basket safeguards (1) Where aerial basket controls are so located that they may come into contact with obstructions, such controls shall be protected by guarding or equivalent protection shall be provided.
The question arises as to what safety device could have been provided by the defendant which would have prevented the incident, or what was the "obstruction" with which the "joy stick" came into contact. Plaintiff has not established that there was a mechanical defect with the scissor-lift that caused the incident. The exact scissor-lift was never identified. In fact, that there is no evidence that after the incident the scissor-lift was inspected and a defect found, that there is a reported manufacturing defect inherit with the design of the scissor-lift, or that this particular lift has a history of malfunctioning. Plaintiff has only asserted that the gear box should have been secured or enclosed in some other manner. However, if the exact scissor lift has not been identified nor has any expert testimony been presented describing the defect in the equipment which needed to be remedied, how can the court conclude the equipment was either unsafe or not in compliance with the statute? Is it not the burden of the plaintiff to establish what is the safety device that was not present and that its existence would have prevented the incident?
There is no evidence that the plaintiff contributed to the incident either by operating the scissor-lift or hitting the gear shift while maneuvering the sheetrock. Colbourne stated he operated the equipment and that he was trained to do so. There is no testimony that Colbourne inadvertently hit the gear shift either. The photographs of the gear area of what is purported to have been the lift used, show a "joy stick" partially enclosed. This leads to the conclusion that either Colbourne moved the scissor-lift up after plaintiff rested the sheetrock between the ceiling and the railing; or the lift moved on its own-an event that would have required that it be inspected for a defect which was never done; or that a third worker on the ground may have moved the lift-assuming that this model of scissor lift permitted movement on the ground-something not before the court because the lift being used was never identified and there is no indication a third-worker was present on the ground.
As noted above, violation of the Industrial Regulation is only "some evidence of negligence." This means there must be some additional proof that the failure to provide the safety device would have prevented the incident. There is no such evidence. To accept plaintiff's position requires acceptance of unsubstantiated speculation as to how the scissor-lift contributed to the incident, rather than the accident being caused solely by human error. §241(6) does not impose absolute liability for every injury arising from a breach of the regulation, there must be a finding that the safety measures were not reasonable nor adequate under the circumstances [Nagel v D & R Realty Corp., 99 NY2d 98 (2002)].
Plaintiff has failed to establish a viable claim under §241(6), irrespective of whether this court believes scissor-lifts are covered by industrial code.
C. Did the Defendant Violate Labor Law §200?
Labor Law §200 provides:
General duty to protect health and safety of employees; enforcement
1. All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment and devices in such places shall be so placed, operated, guarded or lighted as to provide reasonable and adequate protection to all such persons. The board
may make rules to carry into effect the provisions of this section.
A contractor must exercise supervision and control over the injured employee's work to be held liable and the mere fact the contractor had responsibility to monitor the job site safety or perform safety-related tasks does not create liability [O'Sullivan v IDI Construction Co. Inc., 7 NY3d 805 (2006)]. There is no evidence that the defendant supervised or controlled the work activity of the plaintiff. The mere fact that defendant provided a Site Safety Manager is insufficient to impose liability under §200 or a common-law negligence standard. There is no showing that defendant had any knowledge of the alleged unsafe condition or that the particular scissor-lift was defective. Generally, someone in the chain of the construction project must have notice of the condition and was negligent [DeStefano v Amtad New York, Inc., 269 AD2d 229 (2000)].
The above being said, defendant argues a scissor-lift is not covered by a commissioner's regulation. It must be presumed that this device is "unsafe" and should not be used. Defendant provided the Site Safety Supervisor and permitted scissor-lifts to be used knowing that they are not covered by a commissioner's regulation. This shifted the burden to the defendant to establish that scissor-lifts are safe. Defendant has not submitted any evidence to establish the safety of scissor-lifts irrespective of them not being a covered device. Defendant cannot argue that the plaintiff cannot recover under §241(6) because scissor-lifts are undefined in the regulations and then allow its subcontractors to use them at the site. By permitting unregulated scissor-lifts to be used, defendant failed to "provide reasonable and adequate protection" for plaintiff and other-workers.
Plaintiff has established a cause of action pursuant to §200(1) or under common law negligence. Defendant did not have sufficient control over the work being done by the plaintiff to incur liability on that theory, but as the general contractor it has the obligation to provide a safe work place and it allowed the use of a scissor-lift knowing it is not subject to the commissioner's guideline. Conclusion:
Plaintiff's causees of action under Labor Law §240(1) and §241(6) is dismissed in its entirety. Plaintiff has established that the defendant was negligent pursuant to Labor Law §200(1) by permitting the use of a scissor-lift by the subcontractor.
The commissioner is directed to either add scissor-lifts to the type of equipment covered by the Industrial Code, or affirmatively ban them as unsafe.
Exhibits, if any, will be available at the office of the clerk of the court thirty days after receipt of a copy of this decision.
All sides to appear November 13, 2017 at 11 AM at 927 Castleton Avenue, Staten Island, NY 10310 for conference.
The foregoing constitutes the decision and order of the court. DATED: October 20, 2017 Philip S. Straniere Acting Justice of the Supreme Court