STATE OF NEW YORK:
SUPREME COURT
COUNTY OF ERIE
DAVID J. OLDREAD and LAURA L. OLDREAD,
Plaintiffs,
MEMORANDUM DECISION
Index No. 200~~~Ai
-ri~v_~
CARVEDROCK, LLC and
ZOOLOGICAL SOCIETY OF BUFFALO, INC.
Defendants.
Appearances:
Attorney for Plaintiffs
David J. Old read and Laura L. Oldread
·Scott R. Orndoff, Esq.
Flynn Wirkus Young, P.C.,
70 Niagara Street, Suite 111
Buffalo, New York 14202
Attorney for Defendant
Carved Rock, LLC.
James J. Nash, Esq.
Cohen & Lombardo, P.C.
343 Elmwood Avenue
P.O. Box 5204
Buffalo, New York 14213
Attorney for Defendant
Zoological Society of Buffalo
Gary J. O'Donnell, Esq.
Law Offices of Laurie G. Ogden, Esq.
75 Town Centre Drive
Suite 105
Rochester, New York 14623
Bannister, J
BACKGROUND FACTS
On April 16, 2008, David Oldread sustained injuries when he fell from a
scaffolding while performing construction work On the Rainforest Exhibit owned
by the Zoo. Manning Squires Henning (Manning) was the prime contractor for the
project, and Carved Rock was its subcontractor for the purpose of performing the
poured concrete work on the project. Manning hired plaintiff, a laborer with Local
#210, andwhen he reported to the job site, he was told thathe would be working
with the GarvedRock crew and he would be reporting to Carved Rock's foreman,
Lance Every.
According to the Zoo, as gleaned from the affidavit of Lance Every who
was not deposed during the discovery phase of this lawsuit, on the day of the
accident, Every Instructed Oldread to assist two workers working with the
concrete hose feeder on the Toucan Exhibit. Every's affidavit stated "I told him to
use the stairs to get up to the deck and I pointed to the stairs which I wanted him
.
to use *** the stairway [being] the only actual access to the deck above and ***
the stairs provided a safe and easy means of access to the work area" (Every
affidavit, §§ 14, 15) .. Every then turned his back to walk to another part of the
work site when he heard commotion and saw "plaintiff fall backward from the
scaffold with a plank falling with him" (Every affidavit, § 17). Every asserted that
plaintiffs use of the scaffolding or ladder was never approved (Every affidavit,
3
§ 20). Every continued, "he was instructed to use the stairs;' he never mentioned
using the ladder or the scaffold to me *** his attempt to use the ladder and
scaffolding was in complete disobedience of my instruction to use the stairs;
there was no reason ***to climb on the ladder or scaffold in order to get to the
deck where he was supposed to work" (Every affidavit, p. 22-23).
In portions of the deposition appended to the Zoo's moving papers, plaintiff
acknowledged that he was asked to work with "the shot rock crew," an· operation
he had seen for the three days he had been on the job (Oldread deposition, p.
35-36). Oldread described the operation as two men on the same level, one with
the nozzle and one right behind him, and a third "floating guy" on the level below
them to help with the hose feed (Oldread deposition, p. 36-38). According to
plaintiff, the ladd.er and scaffolding was near where he needed to go .(Oldread
deposition, p. 38). Other than assigning plaintiff to work with the shot rock crew,
Every did not give plaintiff any specific instructions on how to assist the other
members of the crew, but plaintiff did not believe he could do his job (third
person, feeding the hose) from the area where the stairs would have brought him
(Oldread de·position, p. 339-39). Oldread testified that he had only seen the job
performed where the third person in the team was standing on the level below the
other two (Oldread deposition, p. 39). While on that intermediate level, concrete
pellets began striking plaintiff, so he had to get "out of there" (Oldread deposition,
p.40). As he tried to get away, he stepped onto the scaffold and one of the
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planks gave way and he fell (Oldread deposition, p. 52). The planks of the
scaffold were not secured in place (Oldread deposition, p. 56). The accident
occurred fifteen to thirty seconds from the time he climbed up the scaffolding via
the ladder (Oldread deposition, p. 54).
The Zoo also asserted that it is entitled to contractual indemnity against
Carved Rock, its subcontractor, who agreed in their contract to hold the Zoo
harmless in the event Carved Rock was found to have committed an act or
omission for which a claimant was seeking legal redress.
The cross-motion of Carved Rock recounted specific deposition testimony
of plaintiff regarding his choice of access to the job he was expected to do,
wherein plaintiff was asked, "did you understand what Lance (Every) meant when
he said you could use the stairs to do your job?" Plaintiff answered "I wasn't
really thinking about it. You know the shot rock was on the scaffolding, the stairs
are like to the side of the scaffolding and the scaffolding is here and the stairs
and the little building they were up around next to it. So, you know, it really didn't
hit me. I mean, I seen, over my ear you see the ladder. Your going over there to
work. You go up the ladder, that's how you get to the scaffolding usually" (Cole
affidavit,
~
15). That affidavit from Carved Rock concludes "plaintiff was provided
a safe means to access his work site-the stairs, and plaintiff chose to use a lesssafe method which was his decision." (Cole affidavit,
5
~
18).
Carved Rock also asserted that plaintiff is it's special employee as a matter
of law in that during his short tenure on the job, he received his assignments from
Lance Every, Carved Rock's foreman, and Every told him what to do according to
plaintiff, as Every was "running the job" (Plaintiff's deposition, p. 22). Moreover,
pointing to some internal memoranda, Carved Rock asserted that Manning and
Carved Rock were considered "interchangeable" (Cole affidavit,
,-r 29).
Carved Rock asserted that the evidence indicated as a matter of law that plaintiff
was engaged in Carved Rock's activities, was taking its orders, using its
equipment, working alongside its employees, and thus consented to be a special
employee of CarvedRock (Cole affidavit,
,-r 29).
Plaintiff's cross-motion for summary judgment explained that at the time of
the accident plaintiff was assisting in a procedure whereby two employees, on the
level above the scaffold where plaintiff went to stand, were shooting concrete
through a hose and nozzle to create an artificial rock wall at the Toucan Exhibit
on the Zoo's property. Plaintiff believed the proper position to accomplish the
task assigned to him was on one level below the two workers at the top level, and
the only way he knew to get there was accessing the ladder and scaffold.
Counsel's affidavit points out that the according to plaintiff's deposition testimony,
there was no access from the stairs to the intermediate level, thus the stairs could
not have been used. The concrete which did not stick to the wall splattered and
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fell to the ground. As plaintiff was getting in position, he was immediately forced
to take cover when the shot rock began to pelt him before he was able to reach
the hose, he stepped on a plank on the scaffolding which flipped, causing him to
fall. It is plaintiff's position that he is entitled to summary judgment on Labor Law
§§ 240 (1), 241 (6) and 200, as well as common law negligence.
Plaintiff asserts that he meets both the falling worker and falling object .
prongs of Labor Law § 240; that plaintiff was not afforded overhead protection per
§ 241 (6) and12 NYCRR 23-1.7 (a)(1) and 23-:1.5 0)(2); that plaintiff was not the
sole cause of his injuries nor was he a special employee of Carved Rock. Plaintiff
. submitted an affidavit, and no one contradicted his assertion therein, that he
received no training or specific direction on how to perform the concrete hose
feeder job, and during his short time on the job site he only observed the workers
assisting with the concrete hose feeder from the intermediate level of the scaffold.
Plaintiff also asserted that he was not a special employee of Carved Rock
in that he was not hired by Carved Rock; CaryedRock did not have the authority to
fire him; if he called in sick, it would not have been to anyone at Carved Rock; he
could have been reassigned at any time to another part of the construction by
at issue was the
Manning without approval of Carved Rock; the scaffolding
.
.
property of Manning; and his workers' compensation was provided by Manning
(See Plaintiff's affidavit in support of coss-motion, dated January 21 ,2014).
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DISCUSSION AND ANALYSIS
Labor Law § 240(1) claim
Pursuant to section 240(1) of the Labor Law, contractors and property
owners are required to provide workers with scaffolding and other devices "so
constructed, placed and operated as to give proper protection to a person so
employed." Where an accident is caused by a violation of the statute, plaintiff's
own negligence does not furnish a defense (Cahill v. Triborough Bridge and
Tunnel Authority, 4 NY3d 35, 39). However, where plaintiff's own action is the
sole proximate cause of the injury, there can be no liability (See Blake v.
Neighborhood Housing Services of New York City, Inc., 1 NY3d 280 and Cahill,
supra).
In analyzing this case in the manner the Fourth Department has recently
done in Kin v. State (101 AD3d 1606), the plaintiff, who was the movant, had the
burden to demonstrate a violation of Labor Law 240(1) by showing that the safety
equipment provided for plaintiff's use and protection was not so placed as to give
plaintiff the proper protection. The burden then shifts to the "defendant to raise an
issue of fact as to whether plaintiff's 'own conduct, rather than any violation
of Labor Law § 240(1), was the sole proximate cause of the accident.'" (Kin at
1068). In order to raise an issue of fact whether plaintiff's own conduct was the
sole proximate cause of the accident, defendant was required to establish that
"the safety devices that claimant alleges were absent were readily available at the
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work site and that the plaintiff was expected to use them but for no good reason
chose not so do so causing the accident." (Kin at 1068). Also, according to Kin,
defendant must show that plaintiff knew that it was inappropriate and unsafe to
proceed in the manner which plaintiff proceeded (emphasis added).
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There is little doubt that the plaintiff has established a violation of Labor
Law § 240(1). The scaffolding available at the work site which plaintiff used did
not provide plaintiff proper protection from falling objects, allowing him to be hit by
shot rock debris, or from falling when he used the scaffold to get out of the way of
the shot-rock debris. In fact, the scaffolding fell apart and part of it hit the ground
when plaintiff did. Neither defendant spends anytime in their papers trying to
disprove a Labor Law 240 (1) violation, but rather relies on "sole proximate
cause" and "recalcitrant worker" affirmative defenses in seeking summary
judgment and in defending plaintiff's motion for summary judgment.
In accordance with Kin, the court must examine whether defendants either
raised a question of fact or proved as a matter of law that plaintiff's 'own conduct,
rather than any violation of Labor Law § 240(1), was the sole proximate cause of
the accident.'" (Kin at 1068; see also Kuhn v Camelot Assn., Inc., 82 AD2d 1704,
1705 and Cahill v Triborough Bridge Auth., 4 NY3d 35, 40). To do so, defendants
lIn Kin, plaintiff was injured when a ladder he was using which did not have rubber feet
slid out from under him while he was repairing a bridge. Although rubber-footed ladders were
available at the work site, it was determined that there was no evidence that plaintiff knew the
ladders without rubber feet were inappropriate to use or were otherwise unsafe.
9
must establish that plaintiff chose to use the scaffold despite the stairs being
available "for no good reason" and that "plaintiff knew" that it was inappropriate
and unsafe to proceed in the manner which plaintiff proceeded (Kin, at 1068; see
also Custer v Jordan, 107 AD3d 1555, 1559).
Plaintiff, in papers submitted by defendant Zoo in support of it's motion,
supplied the reason for his use of the scaffolding. He asserted in his deposition
that he believed the job he was assigned required him to be at the intermediate
. level of the project supplying hose to the workers at the top level of the project It
was the method that he had observed for the three days prior to being asked to
participate. While defendants submitted an affidavit of Lance Every outlining
what he expected plaintiff to do, i.e., use the stairs to access the top level, there
was no evidence presented by the defense that plaintiff understood that he was
only to use the stairs. There was nothing in the Every affidavit which asserted
that plaintiff should only use the stairs and avoid the scaffolding and ladder which
was present on the site in the vicinity of where plaintiff believed he was to perform
his work with the shot rock crew. Plaintiff had never before worked with the shot
rock crew and had only observed. Moreover, the Every affidavit did not offer any
evidence that Lance Every gave plaintiff any specific instruction whatsoever but in
fact walked away from the work site area before plaintiff began his work, despite
the fact that plaintiff had never worked with the shot rock crew before. Therefore,
plaintiff proved, and defendant failed to offer any evidence in contravention
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thereof, that plaintiff had a valid and good reason to have accessed the work site
via a ladder and scaffolding which was erecte_d and available for use at the work
. site.
Next, Kin provides that to defend itself from a motion for summar)!
judgment, defendant must raise an issue of fact indicating that plaintiff knew that
it was inappropriate and unsafe to use the scaffolding. Although Carved Rock
asserts that the stairs were available for plaintiff to use, Carved Rock submitted no
evidence that plaintiff knew that the scaffolding was unsafe. In fact, the evidence
provided by defendant in defendant's submissions demonstrated that plaintiff
watched other employees use the same scaffold to conduct the same job plaintiff
was expected to perform, and Lance Every, the job foreman, did not assert in his
affidavit that he ever indicated to Plaintiff that it was inappropriate to use that
scaffold or that scaffold was in any way unsafe.
Defendants rely on Cahill, (supra) to support its argument that plaintiff's
decision to ignore foreman Every's direction to use the stairs to get to the level
needed to assist with the concrete hose feeder is the sole proximate cause of
plaintiff's injury. In Cahill, the Court held that plaintiff's failure to abide by the
specific safety instructions was the sole
proxim~te
cause of his injuries. (Cahill, at
39-40). Plaintiff Cahill was employed in the repair of the Triborough Bridge and
was injured while attempting to climb the wall-like support structures without the
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required safety devices. (Cahill at 38). Plaintiff in Cahill was trained on the use of
the safety devices and was expected to use those devices to climb and descend
the support structures (id). The court found that plaintiff's actions were the sole
proximate cause of his injuries because he failed to use the safety devices
provided after receiving specific instructions and training to use the safety devices
and was again warned to use the safety devices after being observed by his
supervisor not using the devices (Cahill at 40).
Cahill is clearly distinguishable from the case at bar. In the prese.nt case,
plaintiff was never made aware of any danger associated with the use of the
scaffolding or given detailed instructions about safety as had the plaintiff in Cahill.
Defendants also rely on the Fourth Department decision, from June 2013,
Nicometi v Vineyards of Fredonia (107 A£?3d 1537) in asserting that a question of
fact has been raised concerning whether plaintiff's actions were the sole
proximate cause of his injuries. In Nicometi, plaintiff, an installer of insulation
working on stilts at an elevated level, slipped and fell when the bottom of his stilts
touched upon ice. Defendants asserted the defense of sole proximate cause
and introduced evidence that the foreman of the job, seeing the ice, told plaintiff
not to work in. the area where the ice was located. The court determined that
"whether the injured plaintiff's fall resulted from his own misuse of the safety
device and whether such conduct was the sole proximate cause of his injuries" is
a question of fact (Nicometi at 1539). There was a vigorous dissent whose
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position was that defendants had a duty under Labor Law § 240 (1) to do more
than advise plaintiff "not to work in that area" but iri fact, was responsible to
furnish and place protective devices to protect workers (Nicometi, at 1540).
However, this court need not rely on the dissent as the majority holding in
Nocometi is easily distinguishable from the case at bar. The mere direction to
"use the stairs" by Mr. Every did nothing to alert the plaintiff to any danger in
using the scaffolding that was present at the job site and had been used by other
workers doing the same task as plaintiff during all the days that plaintiff was on
the job site.
Thus, defendants' motions for summary judgment concerning Labor Law §
240 (1) are denied in all respects, and plaintiff's motion for summary judgment
pursuant to Labor Law §240 (1) is granted. Plaintiff proved, as a matter of law,
that defendants violated Labor Law § 240 (1) in the manner that the scaffolding
was kept on the day of the accident such that the plank gave way and plaintiff
and the plank fell to the ground. Also, Plaintiff proved that there was no overhead.
protection to protect Plaintiff from falling concrete debris. Moreover, plaintiff also
proved that his actions were not the sole proximate cause of his injuries. Plaintiff
had a reason to have chosen the ladder and scaffold over the stairs and
defendants were unable to raise an issue of fact whether plaintiff knew or should
have known the danger of using the scaffold on the day of his accident. The lack
of specific direction to plaintiff, who had never actually worked on the shot rock,
13
crew and the lack of training provided to plaintiff are factors in the court's holding
that plaintiff established that he did not appreciate any danger in accessing the
concrete hose in the manner he did on the day of the accident.
Labor Law § 241 (6)
Plaintiff alleges that 12 NYCRR 23-5.1 (etand 12 NYCRR
23-5.1 0) (2) are each applicable to the situation at bar and are sufficiently
specific to support a Labor Law 241 (6)'claim. (see e.g. Smith v. Jesus People,
113 AD3d 980, 981 and Stephens v. Triborough Bridge Authority, 55 NY3d 410,
412). Subsection (e) deals with planks of a scaffold which extend more than 18
inches past the end support if not fastened in place, and plaintiff alleged that he in
fact stepped on a plank which extended well past 18 inches and that plank "gave
way", because it was not fastened, causing plaintiff's fall. Subsection 0)(2)
requires overhead mesh screening to protect employees below the top level of
the scaffold which, in this Case, would have protected plaintiff from falling
concrete debris. Defendant alleges that plaintiff is speculating at the length of the
protrusion of the board and there is no proof that a mesh or other screen above
the scaffolding would have provided protection to plaintiff who was outside the
rails of the scaffold when the concrete debris began to pelt him. Although each of
these sections is sufficiently specific enough to support a Labor Law 241 (6) claim,
questions of fact exist as to their relation to this incident and whether the actions
of the plaintiff were partially or fully responsible for his injuries. Summary
14
judgment is denied to plaintiff and to defendant on the Labor Law 241 (6) claim.
Labor Law § 200 and common law negligence
With regard to plaintiff'sLabor Law § 200 claim and claim sounding in
common-law negligence, plaintiff has failed to adduce evidence sufficient to
defeat the Zoo's motion for summary judgment. It is settled raw that under those
legal bases, where a claim arises out of alleged defects or dangers arising from a
subcontractors methods or materials of the work, the owner cannot be held liable
unless shown that the owner had actual control and supervision over the
performance of the work. (see Ross v. Curlis-Palmer Hydro-Electric Co., 81 NY
2d 494,505-506; see also, Hayes v. Crane Hogan, 191 AD2d 978). There is no
evidence that the Zoo exercised control or supervision over plaintiff's work, nor
did the Zoo give directions to plaintiff on how to perform his work. Thus, the Zoo
is not subject to liability under Labor Law § 200 or common law negligence, and
thus defendant Zoo's motion in this regard is granted. However, those claims
remain viable as to defendant Carved Rock, and their motion as well as plaintiff's
motion seeking Summary Judgment on these issues are denied.
Special Employee
Carved Rock contends that plaintiff is a special employee of Carved Rock.
"A special employee is one who is transferred for a limited time to the service of
another." (Thompson v. Gruman Aerospace Corp., 78 NY2d 553,557). Generally,
the question of special employee status is for the fact finder to decide, with the
15
presumption that the general employer continues as sole employer. (see Hill v.
Erd/e Perforating Company, (53 AD2d 1008). Although cases may arise in which
the manner of control of an employee is so clear that the court may determine
special employment as a matter of law, there are many factors to consider in
deciding the question, including but not limited to method of payment,.right to
control, furnishing equipment, the contractual arrangement between employers,
etc. (see Thompson at 555-59 and Hill at 266).
Here, according to plaintiff, Manning retained the ability to hire, fire, pay
wages, approve days off, and they could have reassigned plaintiff at any time
without consent or approval of Carved Rock. Moreover, plaintiff points out that
Manning owned the scaffolding at issue in this matter. However, Carved Rock
directed plaintiffs daily task when he was assigned to work on Carved Rock's
assigned tasks. Therefore, a question of fact exists as to plaintiff's special
employment status with Carved Rock, and neither party is entitled to Summary
Judgment.
Indemnification
Per the indemnity agreement between Contractor Manning and
Subcontractor Carved Rock, Carved Rock is required to indemnify the Zoo for any
"claims for damages, losses and expenses ... arising out of or on account of any
action or omission by the Subcontractor. .. which cause or contributed to cause
injury to person." There is no dispute that the contract is valid.
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This court has determined, however, that both the Zoo and Carved Rock
are liable to plaintiff pursuant to plaintiff's claims of Labor Law §§ 240 and
possibly Labor Law 241 (6). Those claims are premised upon a, non-delegable
duty by statute, applicable to both defendants. Thus, the Zoo remains liable for
its non-delegable omissions under those statutes despite the terms of the subcontract with Carved Rock.
Please submit an order in accordance with this decision.
~~~:&~
Hon. Tra y A. Banmster
Justice Supreme Court
(y~
Dated:
March
~ (J
,2014
ENTER
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