Ladder Rung Failure
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STATE OF NEW YORK
SUPREME COURT COUNTY OF SCHENECTADY
ANTHONY J. MYERS, Plaintiff -against- DANIEL J. KUBAN, Defendant
DECISION AND ORDER,
-against- RJI No. 46-1-2008-0410
Index No. 2007-0508
SUPREME COURT: Motion Returnable: May 30, 2008
APPEARANCES:
Martin, Harding & Mazzotti, LLP 1222 Troy-Schenectady Road P.O. Box 15141
Albany, NY 12212-5141
Horigan, Horigan, Lombardo & Kelly, P.C. 49 East Main Street
P.O. Box 520
Amsterdam, NY 12010
Papers considered: (1) Notice of Motion dated March 28, 2008; (2) Supporting Affidavits of Craig A. Cushing sworn to March 28, 2008 with Exhibits A-E; Irving Paris sworn to March 26, 2008 with Exhibit A; Anthony J. Myers sworn to March 1, 2008 and Athel Taylor sworn to March 1, 2008; (3) Opposing Affidavit of James A. Lombardo sworn to May 20, 2008; (4) Reply Affidavit of Craig Cushing sworn to May 27, 2008.
CARUSO, J.
In this action pursuant to Labor Law §§240(1), 241(6), 200 and common-law negligence, plaintiff moves for partial summary judgment on the issue of defendant's liability under Labor Law §§240(1) and 241(6). Defendant opposes.
In August 2005, defendant contracted with Weatherguard Roofing (Weatherguard) to
replace the roof on his two-family house in the City of Schenectady.' Plaintiff was employed by Weatherguard as a roofer. On August 3, 2005, plaintiff was climbing a 30-32-foot aluminum extension ladder for purposes of handing up some 2x10 boards to another employee who was on the roof. As he stepped onto the second or third rung of the ladder, the rung snapped, causing his right leg to fall through the ladder, 2-3 feet to the ground below. Plaintiff sustained a right anterior cruciate ligament rupture and a medial meniscus tear of the right knee as a result. Immediately after the incident, plaintiff's co-worker, Athel Taylor, looked at the ladder. According to him, "[i]t looked as though the rung had been bent or broken before and someone had attempted to repair the ladder by placing a piece of wood either inside or underneath the rung."
Plaintiff's supporting proof prima facie establishes liability under Labor Law §240(1). Section 240(1) imposes a non-delegable duty upon owners, among others:
. . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure [to] furnish or erect or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders . . . and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.
Here, the work being performed, i.e., roof removal and replacement, is a covered activity under section 240(1). A ladder is a specifically enumerated safety device and the fact that one of its rungs collapsed under plaintiff's weight, thereby failing to support him while he was working at elevation, establishes, as a matter of law, that it did not provide "proper protection" (Dowling v McCloskey Community Servs. Corp., 45 AD3d 1232 [3d Dept., 2007]; see, Blake v
Neighborhood Housing Servs. of New York City, 1 NY3d 280, 285-286, discussing Stewart v
1 It is uncontroverted on this record that defendant did not reside at the property but held it solely for commercial purposes.
Ferguson, 164 NY 553). Finally, given the proof that plaintiff's right leg was propelled to the ground as a result of the rung collapse and that the force with which his leg struck the ground caused the injuries alleged, leaves no doubt but that the forces of gravity were at work in this accident or that the statutory violation was a proximate cause of plaintiff's injuries .
With that, the burden shifts to defendant to demonstrate the existence of a triable issue of fact. The essence of defendant's opposition is that there is no basis for liability under the Labor Law because the ladder itself did not fall and plaintiff did not fall from it. These arguments lack merit. As a result of the rung collapse, plaintiff's right leg was propelled to the ground below. The fact that his entire body did not strike the ground is of no consequence. Nor is it material that the ladder itself did not fall; the simple fact, undisputed on this record, that one of its rungs collapsed under plaintiff's weight creates a presumption that it was not sound enough to afford proper protection (Blake v Neighborhood Housing Servs. of New York City, supra, at 289, n 8).
Nor is there any merit to defendant's argument that summary judgment is inappropriate because plaintiff provided contradictory versions of the accident. This argument has its genesis in the fact that plaintiff testified at deposition that the rung broke while he was ascending the ladder, but wrote in an accident report that he was descending the ladder when the rung broke. In this Court's view, whether the accident happened when plaintiff was going up the ladder or coming down is of no consequence because under either version, the ladder did not properly support him while he was working at elevation. Equally without merit is the claim that plaintiff's failure to specify his injuries in the accident report renders summary judgment inappropriate. Plaintiff avers that his knee injuries were the direct result of the rung collapse. Defendant's contrary argument, i.e., that plaintiff's failure to identify any injuries in the accident
report raises questions as to whether he may have hurt his knee in some other incident, is no more than speculation.
Summary judgment on the issue of liability under Labor Law §241(6) is also warranted on this record. A cause of action under section 241(6) must allege that a specific and concrete provision of the Industrial Code has been violated and that such violation was a proximate cause of the injuries alleged. Here, plaintiff claims that defendant violated 12 NYCRR §23-1.21(b)(1) and 12 NYCRR §23-1.21(b)(3). Both pertain to ladders and ladder ways and both have been recognized as sufficiently specific to support liability under section 241(6) (see, Santamaria v 1125 Park Ave. Corp., 249 AD2d 16 [1st Dept., 1998] [22 NYCRR §23-1.21(b)(1)]; De Oliveira v Little John's Moving, 289 AD2d 108 [1st Dept., 2001][22 NYCRR §23-1.21(b)(3)(iv)]).
Section 23-1.21(b)(1) speaks to ladder strength and states that "[e]very ladder shall be capable of sustaining without breakage, dislodgment or loosening of any component at least four times the maximum load intended to be placed thereon." Section 23.1-21.(b)(3) states:
All ladders shall be maintained in good condition. A ladder shall not be used if any of the following conditions exist:
(i) If it has a broken member or part.
(ii) If it has any insecure joints between members or parts.
(iii) If it has any wooden rung or step that is worn down to three-quarters or less of its original thickness.
(iv) If it has any flaw or defect of material that may cause ladder failure.
Here, plaintiff has come forward with proof sufficient to prima facie establish a violation of both cited provisions. Plaintiffs supporting proof included an affidavit from architect Irving Paris setting forth the ANSI classifications of ladders and the weight per rung that each ladder type is required to support under ANSI standards. While the ladder itself was not produced during discovery, according to Paris, the most lightweight, 30-32 foot aluminum extension ladder --- a Type 2 --- has a load capacity of 225 lbs. per rung. Given that 22 NYCRR §23-
1.21(b)(1) requires every ladder be capable of sustaining at least four times the maximum load, Paris concludes that in order to comport with section 23-1.21(b)(1), a Type 2 ladder would have to be capable of sustaining 900 lbs. While plaintiff's weight is not known, it is simply not possible that his weight plus the weight of two 2x10's exceeded 900 lbs. With regard to 22 NYCRR §23-1.21(b)(3), the testimony of one of plaintiff's co-workers that the rung had been bent or broken before and attempts had been made to repair it with a piece of wood supports the conclusion that the ladder had a "broken member or part" within the meaning of 12 NYCRR §23-1.21(b)(3).
In opposition, defendant does not take issue with Paris' conclusions and does not counter plaintiff's proof. Rather, the sole opposition is, as noted above, that liability cannot attach because the ladder itself did not fall and that credibility issues preclude summary judgment. For the reasons noted above, these arguments lack merit.
Accordingly, for the foregoing reasons, it is
ORDERED that plaintiff's motion is granted, without costs.
THIS DECISION SHALL CONSTITUTE THE ORDER OF THE COURT.
THE ATTORNEY FOR THE PLAINTIFF SHALL ENTER THIS ORIGINAL DECISION/ORDER AND PROVIDE A COPY WITH PROOF OF ITS ENTRY ON THE OPPOSING ATTORNEY(S) OR THE PRO SE LITIGANT(S), AS THE CASE MAY BE.
ENTER.
Dated at Schenectady, New York, this 3rd day of September, 2008.
HON. VITO C. CARUSO
Supreme Court Justice
