Landi v. SDS William Street, LLC

OPINION OF THE COURT

This appeal concerns whether Labor Law § 240 (1) applies where a heavy pallet jack being maneuvered down a ramp ran over the foot of the worker controlling it, after water on the ramp left him unable to control its descent.

Plaintiff, Glen Landi, who was employed on a construction project site at 15 William Street in Manhattan, was injured in an accident that occurred at the site. Plaintiff explained in his deposition testimony that his employer, Mastercraft, was responsible for erecting interior walls in the three basement levels of the building, designated Cl, C2, and C3. A concrete ramp led from street level down to each basement level;

To move the jack, plaintiff had to grasp its steering handle and angle it downward from its initial upright position, and then hold down a button on the handle. The jack would stop moving when he removed his finger from the button or lifted the handle back to the upright position. Plaintiff had been trained to stand directly in front of the jack, with the forks sticking out behind, when maneuvering a load down a ramp, since the load could fall off the jack if the forks were facing the front.

On the date of his accident, May 31, 2007, plaintiff was assigned to transport cinder blocks from street level to level C3. The blocks were packaged on individual skids, and each skid contained slots into which the forks of the jack were inserted. Plaintiff loaded two skids of cinder blocks, which weighed about 3,000 pounds, onto the jack. On his first trip to C3, plaintiff noticed water running down the ramp between the ground floor and Cl, which seemed to be caused by “core drilling” being done to create a space for a pipe. On subsequent trips to the basement that day, plaintiff saw that water was building up and accumulating on the ramp between the ground floor and Cl, and then between Cl and C2. On his fifth trip to the basement, plaintiff felt his footing worsen, and the jack started sliding a little although it did not seem out of control. Although the jack seemed to be “turning by itself,” plaintiff still managed to stop it effectively and guide it down the ramp in a “nice and easy” manner. On perhaps his sixth or eighth trip down to the basement level, plaintiff once again began to descend the ramp in front of the jack, with the forks and load facing upward, but this time, while descending the ramp between Cl and C2, about five feet below Cl, “the jack started picking up speed on its own.” The jack accelerated, and although plaintiff lifted the handle in an attempt to stop it, the jack kept sliding down. Although plaintiff tried to get out of its way, he was prevented by the debris and materials on the side of the ramp, which he did not have time to pick his way through. At that point, the

Consideration of Runner v New York Stock Exch., Inc. ( 13 NY3d 599 [2009]) may also help answer why Labor Law § 240 (1) applies although plaintiff was not struck by an object being hoisted or secured. In Runner, the plaintiff and his coworkers were assigned to move an 800-pound reel of wire down some stairs, and were instructed to attempt to control its descent by tying a 10-foot rope to the reel, wrapping the rope around a metal bar placed horizontally across a door jamb, and having the other end of the rope held by the plaintiff and his coworkers, putting the plaintiff and his coworkers in the position of counterweights (id. at 602). Rather than this makeshift counterweight system controlling the descent of the reel down the stairs, instead, the reel’s descent caused the rope to pull the plaintiff uncontrollably into the metal bar, causing injury to his hands (id.). Rejecting the analysis suggested by the Runner defendants, namely, that Labor Law § 240 (1) applies only where workers fall or objects fall on them, the Court explained that “the single decisive question is whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” (id. at 603).

It does not avail defendants to argue that there was no safety device that could have been provided by defendants. The jack itself was a safety device (see Guanopatin v Flushing Acquisition Holdings, LLC, 127 AD3d 812 [2d Dept 2015]), but it proved insufficient to protect plaintiff from circumstances where he had to move a heavy load down a ramp when that ramp was covered with water, which rendered the process more hazardous. Nor can the height differential be said to be de minimis; in that respect, this case is comparable to Marrero v 2075 Holding Co. LLC ( 106 AD3d 408 , 409 [1st Dept 2013]), where two 500-pound steel beams fell from the top of an A-frame cart that tipped over, and the steel beams landed on the plaintiff’s calf and ankle, and this Court held that “[g]iven the beams’ total weight of 1,000 pounds and the force they were able to generate during their descent, the height differential was not de minimis.”

Finally, any inconsistencies or doubtful details in plaintiff’s accounts of the accident do not raise triable issues of fact, since plaintiff is entitled to partial summary judgment in any event (see Aramburu, 126 AD3d at 500 ; Nerney v 1 World Trade Ctr. LLC, 140 AD3d 459 , 460 [1st Dept 2016] [experts’ suggestions that the accident could not have occurred as the plaintiff testified did not prevent summary judgment to the plaintiff, in light of the lack of needed safety devices]; Lipari v AT Spring, LLC, 92 AD3d 502 , 504 [1st Dept 2012] [“Although there are different versions of how plaintiff was injured, the accident occurred because plaintiff was not given proper protection to prevent his fall”]).

In light of the foregoing, the Labor Law § 241 (6) claim need not be addressed (see e.g. DaSilva v Everest Scaffolding, Inc., 136 AD3d 423 , 424 [1st Dept 2016]).

Friedman, J.R, Richter, Gische and Kapnick, JJ., concur.

Orders, Supreme Court, Bronx County, entered December 14, 2015 and December 17, 2015, affirmed, without costs.