Posted On: April 17, 2012 by Stephen Bilkis

An employee of non-party subcontractor summoned his employer’s contractor

An employee of non-party subcontractor summoned his employer’s contractor for the injury he allegedly sustained in a fall from a ladder. The commercial property was owned by the defendant who hired the subcontractors, including the defendant and the plaintiff's employer for a renovation project.

According to the plaintiff's testimony, he was directed by his foreman to install insulation on an inside wall and was given a six-foot aluminum A-frame ladder to perform his task. He stated that his employer had both six-foot and 10-foot ladders at the site and that, although he asked several times for a 10-foot ladder, he was told to make do with the six-foot ladder. He had been working a few hours installing the insulation, he had placed the ladder on level and uncluttered flooring, and he had experienced no problem with the ladder. On his alleged last trip up the ladder, as he was working from the second step below the top cap, he felt the ladder shake and attempted to climb down. However, the ladder flipped and he fell with the ladder. After his fall, the plaintiff noticed small pieces of electrical cable underneath the ladder. The gravamen of his arguments is that the ladder was too short for him to safely perform his work and it was placed on debris which made it unstable. He testified that after his fall he did not continue to work but, rather, sat and waited for his girlfriend to pick him up at the end of the day.

The Labor Law 240 commonly known as the scaffold law creates a duty that is non-delegable, and an owner or general contractor who breaches that duty may be held liable in damages regardless of whether it had actually exercised any supervision or control over the work. Specifically, the Labor Law requires that safety devices, such as ladders, be so constructed, placed and operated as to give proper protection to a worker. In order to prevail upon a claim pursuant to the said Labor Law a plaintiff must establish that the statute was violated and that this violation was a proximate cause of his injuries. An injured plaintiff's contributory negligence will not acquit a defendant who has violated the law. Conversely, a defendant is not liable where there is no evidence of a violation and the proof reveals that the plaintiff's own negligence was the sole immediate cause of the accident.

Where, as here, a ladder collapses, slips and fails to perform its function of safely supporting the worker, a statutory violation, and thus prima facie entitlement to summary judgment, has been established. Once the plaintiff makes a prima facie showing, the burden then shifts to the defendant, who may defeat plaintiff's motion for summary judgment only if there is a credible view of the evidence-enough to raise a fact question—that there was no statutory violation and that plaintiff's own acts or omissions were the sole cause of the accident.

The defendants' opposition relies upon the testimony of the foreman and the plaintiff's co-worker. According to the foreman's testimony, all insulation above eight feet had already been installed using a mechanized lift and the plaintiff's task was to install insulation below that eight foot line. Therefore, the six-foot ladder was sufficient for the plaintiff's task. Moreover, the plaintiff never requested a taller ladder and, when the foreman went to the plaintiff directly after his fall, the plaintiff told him he was not hurt and continued to work the remainder of the day. The foreman also stated that he saw that the floor was littered with debris from the electricians. According to the plaintiff’s co-worker’s testimony, earlier in the day he had seen the plaintiff standing on the end of the upper most part of the ladder which signifies a clear danger. Shortly prior to the plaintiff's fall, he saw him working from a 10-foot ladder and saw that the floor was littered with electrical debris. Although he did not witness the accident, he heard it and immediately went to the plaintiff.

It is well settled that on a motion for summary judgment, a court's function is to determine whether material factual issues exist, not to resolve such issues. A motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility. Here, the defendants have raised issues of fact and credibility as to how the accident happened and whether the plaintiff was the sole cause of his accident. Accordingly, so much of the plaintiff's motion which seeks summary judgment as to his claim is denied.

To recover on a cause of action alleging a violation of Labor Law, a plaintiff must establish the violation of an Industrial Code provision which sets forth specific safety standards. The rule or regulation alleged to have been breached must be a specific, positive command and be applicable to the facts of the case. He also seeks summary judgment on the defendant’s alleged violation of provision on tripping and other hazards. The said regulation orders that all passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping; sharp projections which could cut or puncture any person shall be removed or covered; the parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed; bracing as may be necessary for rigidity shall be provided for every stepladder. When in use every stepladder shall be opened to its full position and the spreader shall be locked. Standing stepladders shall be used only on firm, level footings. When work is being performed from a step of a stepladder 10 feet or more above the footing, such stepladder shall be steadied by a person stationed at the foot of the stepladder or such stepladder shall be secured against sway by mechanical means.

Here, the plaintiff's testimony established that the accident did not occur in a passageway but in a working area. Further, even if the plaintiff can establish that his accident was caused by debris on the floor under the ladder in the work area, a reading makes it clear that the regulations are directed to tripping and other hazards encountered by persons. The plaintiff did not trip and fall. Therefore, these sections are inapplicable to the plaintiff's fall.

According to the records, there is no allegation that the ladder failed because it was not sufficiently rigid or not fully opened or locked. Though there is a question of fact regarding placement of the ladder footings on debris, and the issue of whether or not the work was being performed 10 feet or more from the footings, which would trigger the requirement that the ladder have a person stationed at the foot, is also in dispute. However, while this subsection is arguably applicable, the Court of Appeals has held that a violation of the Industrial Code is not conclusive on the question of negligence, and that such violation would constitute only some evidence of negligence. Therefore, even if this subsection is applicable, resolution of the issue of whether the operation or conduct at the work site was reasonable and adequate under the particular circumstances would be for the jury to resolve.

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