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Bland v. Manocherian

66 N.Y.2d 452 Court N.Y. Decision date 1985-12-19 English

Decision Majority — Jasen, J. · Dissent — Titone, J.

Contents

Majority

p. 452
Thomas Bland et al., Respondents, v Amir Manocherian et al., Doing Business as Fraydun Realty Co., Defendants-Appellants and Third-Party Plaintiffs-Respondents. Barney Schogel Incorporated, Third-Party Defendant-Appellant. Ollis A. Wright et al., Respondents, v State of New York, Appellant.
Argued November 11, 1985;
decided December 19, 1985
p. 453
POINTS OF COUNSEL
Anthony J. McNulty for defendants-appellants and third-party plaintiffs-respondents in the first above-entitled action.
I.
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There was no actionable violation by Fraydun of Labor Law § 240 (1) in this case. Even if there was, then the jury’s finding of improper ladder placement should bar plaintiffs recovery because the statute was not designed to insure against his own avoidable fault. (Allen v Cloutier Constr. Corp., 44 NY2d 290 ; Haimes v New York Tel. Co., 46 NY2d 132 ; Wehr v Memhard & Co., 106 AD2d 262 ; Gargiulo v Oppenheim, 63 NY2d 843 ; Pastoriza v State of New York, 108 AD2d 605 ; Robinson v Reed-Prentice, 49 NY2d 471 ; Voss v Black & Decker Mfg. Co., 59 NY2d 102 ; Codling v Paglia, 32 NY2d 330 ; Koenig v Patrick Constr. Corp., 298 NY 313 ; Duda v Rouse Constr. Corp., 32 NY2d 405 .) II. This jury charge was erroneous, confusing and anomalous. (Abromowitz v Board of Educ., 78 AD2d 836 ; Up-Front Indus. v U. S. Indus., 63 NY2d 1004 ; Clark v Board of Educ., 304 NY 488 ; Pajak v Pajak, 56 NY2d 394 .) III. The indemnity portion of the judgment in favor of Fraydun against Schogel should remain undisturbed. (Long v Forest-Fehlhaber, 55 NY2d 154 ; Klinger v Dudley, 41 NY2d 362 ; McDermott v City of New York, 50 NY2d 211 ; Riviello v Waldron, 47 NY2d 297 ; Logan v Esterly, 34 NY2d 648 ; Rogers v Dorchester Assoc., 32 NY2d 553 .)
William F. Larkin, Raymond C. Green and Douglas E. McKeon for third-party defendant-appellant in the first above-entitled action.
I. The order appealed from erroneously affirmed the judgment based upon the incorrect interpretation and application of Labor Law § 240. (Kluttz v Citron, 21 NY2d 379 ; Duda v Rouse Constr. Co., 32 NY2d 405 ; Smith v Hooker Chems. & Plastics Corp., 89 AD2d 361 ; Lagzdins v United Welfare Fund-Security, 77 AD2d 585 ; Koenig v Patrick Constr. Corp., 298 NY 313 ; Long v Forest-Fehlhaber, 55 NY2d 154 ; Van Slyke v Niagara Mohawk Power Corp., 93 AD2d 990 ; Wingert v Krakauer, 76 App Div 34 ; Haimes v New York Tel. Co., 46 NY2d 132 .) II. Plaintiffs’ action should have been dismissed either by the trial court or the court below. (Quinones v St. Vincent’s Hosp., 20 AD2d 529 ; Duda v Rouse Constr. Corp., 32 NY2d 405 ; Kluttz v Citron, 2 NY2d 379 ; Halsey v Ford Motor Co., 24 AD2d 826 ; Lahr v Tirrill, 274 NY 112 ; O’Connor v 595 Realty Assoc., 23 AD2d 69 .) III. The trial court deprived defendant of a fair trial by its charge. (Zipay v Benson, 47 AD2d 233 ; Truesdale v Dueger, 3 AD2d 985 ; Molnar v Slattery Contr. Co., 8 AD2d 95 ; Beach v Richtmyer, 275 App Div 466 ; Fields v City of New York, 4 NY2d 334 .) IV. The trial court erred in disallowing the issue of plaintiff Thomas
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Bland’s negligence in causing or contributing to his accident. (Long v Forest-Fehlhaber, 55 NY2d 154 ; Haimes v New York Tel. Co., 46 NY2d 132 ; Mack v Altmans Stage Light. Co., 98 AD2d 468 ; Smith v Hooker Chems. & Plastics Corp., 89 AD2d 361 ; Kenny v Fuller Co., 87 AD2d 183 ; Kalofonos v State of New York, 104 AD2d 75 ; Cardile v D’Ambrosia, 72 AD2d 544 ; Crawford v Leimzider, 100 AD2d 568 ; Larabee v Triangle Steel, 86 AD2d 289 ; Kopacz v Airco Carbon, 104 AD2d 722 .) V. A complete judicial reevaluation of the absolute duty statutes in the light of developments in the law is in order. (Haimes v New York Tel. Co., 46 NY2d 132 ; Allen v Cloutier Constr. Corp., 44 NY2d 290 ; Teller v Prospect Hgts. Hosp., 280 NY 456 ; Flynn v City of New York, 103 AD2d 98 ; Abergest v Board of Educ., 65 NY2d 161 ; Kelly v Diesel Constr., 35 NY2d 1 ; Heritage v Van Patten, 59 NY2d 1017 ; Crawford v Leimzider, 100 AD2d 568 ; Horning v Gore, 87 AD2d 34 .)
Scott N. Singer, Melvin Sacks and Jon W. Green for respondents in the first above-entitled action.
I. Judgment was properly awarded to plaintiffs upon the jury’s finding that the ladder which collapsed beneath Mr. Bland was improperly placed and that the improper placement of the ladder was the proximate cause of his injuries. (Koenig v Patrick Constr. Corp., 298 NY 313 ; Heath v Soloff Constr., 107 AD2d 507 ; DaBolt v Bethlehem Steel Corp., 92 AD2d 70 ; Haimes v New York Tel. Co., 46 NY2d 132 ; Cardile v D’Ambrosia, 72 AD2d 544 ; Carinha v Action Crane Corp., 58 AD2d 261 ; Novell v Carney Elec. Constr. Corp., 123 Misc 2d 1089 ; Zimmer v Chemung County Performing Arts, 65 NY2d 513 ; Reinhart v Long Is. Light. Co., 91 AD2d 571 ; Long v Murnane Assoc., 68 AD2d 166 .) II. The jury’s finding that the ladder was improperly placed was supported by the evidence at trial and predicated on a proper jury charge. (Haimes v New York Tel. Co., 46 NY2d 132 ; Weaver v Lazarus, 93 AD2d 859 ; Engel v Nedwidek, 91 AD2d 794 ; Rea v Elia Bldg. Co., 79 AD2d 1102 ; Reinhart v Long Is. Light. Co., 91 AD2d 571 ; Pereira v Herman Constr. Co., 74 AD2d 531 ; Long v Murnane Assoc., 68 AD2d 166 ; Katz v Press Mgt. Corp., 117 Misc 2d 870 ; Cardile v D’Ambrosia, 72 AD2d 544 ; Brant v Republic Steel Corp., 91 AD2d 841 .) III. Defendant violated Labor Law § 240 (1) by failing to provide plaintiff with any safety equipment for the performance of his work. (Zimmer v Chemung County Performing Arts, 65 NY2d 513 ; Ansorge v Kane, 244 NY 395 ; Hornstein v Podwitz, 254 NY 443 .) IV. In the absence of legislative
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amendment, this court should not depart from precedent construing Labor Law § 240 (1). (Zimmer v Chemung County Performing Arts, 65 NY2d 513 ; Haimes v New York Tel. Co., 46 NY2d 132 ; Koenig v Patrick Constr. Corp., 298 NY 313 ; Allen v Cloutier Constr. Corp., 44 NY2d 290 ; Kluttz v Citron, 2 NY2d 379 ; Reinhart v Long Is. Light. Co., 91 AD2d 571 ; Engel v Nedwidek, 91 AD2d 794 ; Long v Murnane Assoc., 68 AD2d 166 .)
T. Alan Brown for appellant in the second above-entitled action.
I. There was no violation of Labor Law § 240. (Larabee v Triangle Steel, 86 AD2d 289 ; Zimmer v Chemung County Performing Arts, 65 NY2d 513 ; Rea v Elia Bldg. Co., 79 AD2d 1102 ; Sullivan v Held, 81 AD2d 663 ; Long v Forest-Fehlhaber, 55 NY2d 154 .) II. Claimant-respondent was contributorily negligent. (Monroe v City of New York, 67 AD2d 89 ; Smith v Hooker Chems. & Plastic Corp., 89 AD2d 361 , 58 NY2d 824 .) III. Claimant’s culpable conduct must be taken into account when determining any liability which might exist under section 241 (6). (Maidman v Stagg, 82 AD2d 299 .)
Richard P. Weisbeck, Jr., for respondents in the second above-entitled action.
I. The court below correctly construed Labor Law § 240 and its factual determination that section 240 (1) was violated is beyond review in this court. (Kalofonos v State of New York, 104 AD2d 75 ; Zimmer v Chemung County Performing Arts, 65 NY2d 513 ; Struble v John Arborio, Inc., 74 AD2d 55 ; Parsolano v County of Nassau, 93 AD2d 815 ; Haimes v New York Tel. Co., 46 NY2d 132 ; Koenig v Patrick Constr. Co., 298 NY 313 ; Quigley v Thatcher, 207 NY 66 ; Reinhart v Long Is. Light. Co., 91 AD2d 571 .) II. The State’s argument that respondent was contributorily negligent is not an issue properly before this court. (Cohen v Hallmark Cards, 45 NY2d 493 .) III. The award of damages on the derivative claim is a factual issue beyond review by the Court of Appeals. (Zipprich v Smith Trucking Co., 2 NY2d 177 ; Tate v Colabello, 58 NY2d 84 .)

OPINION OF THE COURT

These appeals arise out of construction site accidents involving workmen injured as a result of alleged violations of Labor Law § 240.

In Bland v Manocherian, plaintiff sustained injuries while

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working on an apartment building owned by defendants who had hired third-party defendant, plaintiff’s employer, to make certain alterations. Plaintiff fell through a fourth story window when the ladder upon which he was standing suddenly collapsed beneath him. Plaintiff and his spouse brought this action under Labor Law § 240 seeking damages resulting from a construction accident.

At the first trial, the court refused to charge that improper placement of the ladder constituted a violation of the statute on the part of defendants, but the jury, nonetheless, returned a verdict for both plaintiffs finding, in its answers to interrogatories, that defendants had violated Labor Law § 240 by failing to provide plaintiff with a safety belt. On appeal, the Appellate Division reversed and ordered a new trial on the ground that the court had erred in instructing the jury that a safety belt was a necessary "device”, under the circumstances, as a matter of law, regardless of industry custom and practice.

At the second trial, plaintiff testified that a co-worker had brought the ladder furnished by third-party defendant employer into the apartment, that plaintiff himself positioned the ladder "sideways” to and several inches from the window, and that, as he stood on the ladder removing the window sashes, the ladder collapsed and folded beneath him, causing him to fall through the window. The jury returned a second verdict in plaintiffs’ favor, having unanimously answered the court’s special verdict questions as follows:

"1. Did the accident happen substantially in the manner claimed by plaintiff?

"Answer: Yes.

"2 Was the ladder defective?

"Answer: No.

"2 (a) If the answer to two (2) is yes, was the defect a proximate cause of the accident?

"Answer:

"3. Was the ladder placed so as to give proper protection to the plaintiff?

"3 (a) If the answer to three (3) is no, was the improper placement of the ladder a proximate cause of the accident?

"Answer: Yes.”

Thereafter, the court directed a verdict for defendants owners against third-party defendant employer and, upon the

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latter’s motion, reduced plaintiffs’ damages. On cross appeals, the Appellate Division modified by ordering a new trial on the issue of damages unless plaintiffs consented to accept the verdicts as reduced by the trial court.

In Wright v State of New York, claimant was injured while working on a construction project in Allegany State Park. He was working in a sitting position on a so-called "carpenter’s bracket scaffold” which he and a co-worker had erected. When claimant attempted to stand, as was necessitated by the project, he lost his balance and fell approximately seven feet to the ground. At the time of the accident, the scaffold had in place only one, of two, 12-inch-wide planks for use as a standing platform, and neither a guardrail nor other protective device had been installed to prevent such a fall.

Claimant and his spouse brought this action under Labor Law §§ 240 and 241, alleging the State’s failure, as owner of the project site, to provide a safe place to work. The Court of Claims found that the scaffold did not give "proper protection” to claimant, that "considering the scaffold’s height and narrow width, there was a clear danger of injury if some protective devices were not provided”, and that the absence of "safety railings * * * was a substantial factor in causing the injuries”. Nevertheless, the court held that the Labor Law provisions in question did not impose absolute liability on the owner of the work site under such facts, but, instead, required the court to determine the extent to which the claimant himself contributed to the accident. The court found that the claimant’s share of responsibility for the accident was 50% and that he was, therefore, entitled to recovery of only half the damages he sustained.

On appeal, the Appellate Division modified, finding that the lack of guardrails or other protective devices was a failure to give "proper protection” under Labor Law § 240 (1), and was a proximate cause of the accident. The court held that comparative negligence is irrelevant under that statutory provision and, consequently, that the State was liable for the full amount of claimant’s damages.

On appeal to this court, the owner of the premises in the Bland v Manocherian case argues that there was no actionable violation of Labor Law § 240 (1) and, even if there were, that the jury’s finding of improper ladder placement should bar recovery for plaintiffs because the statute was not designed to insure a worker against his own avoidable fault.

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In Wright v State of New York, the State argues that Labor Law § 240 does not apply to the facts of this case as there was no evidence offered as to the propriety or impropriety of the use of guardrails in connection with a carpenter’s bracket scaffold at a height of seven feet. Where a scaffold is adequately constructed, the State claims, height alone determines the need for the guardrails as the statute specifically requires such guardrails only when scaffolds exceed 20 feet.

Recently, this court held in Zimmer v Chemung County Performing Arts ( 65 NY2d 513 ) that Labor Law § 240 (l)[1] imposes absolute liability upon an owner or contractor for failing to provide or erect safety devices necessary to give proper protection to a worker who sustains injuries proximately caused by that failure. It was noted that the legislative purpose of Labor Law §§ 240 and 241 was to place " 'ultimate responsibility for safety practices at building construction jobs . where such responsibility actually belongs, on the owner and general contractor’ ” (id., at p 520, quoting 1969 NY Legis Ann, at 407), and that the statutory provisions were " 'to be construed as liberally as may be for the accomplishment of the purpose for which [they were] thus framed’ ” (id., at p 521, quoting Quigley v Thatcher, 207 NY 66 , 68). Finally, the majority in Zimmer explained that once it is determined that the owner or contractor failed to provide the necessary safety devices required to give a worker "proper protection”, absolute liability is "unavoidable” under section 240 (1), as well as under the first five subdivisions of section 241, regardless of the injured worker’s own negligence in contributing to his accident (id., at pp 521-522). This interpretation of the statutory provisions is now binding precedent upon the entire court. (Foss v City of Rochester, 66 NY2d 872 ].)

Application of the foregoing requirements enunciated in Zimmer presents little difficulty in the two appeals before us. In Bland v Manocherian, there are affirmed findings of fact

1 Labor Law § 240 (1) provides in pertinent part: "1. All contractors and owners and their agents, except owners of one and two-family dwellings who contract for 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.” (Emphasis added.)

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that the ladder from which plaintiff fell was not "placed so as to give proper protection” and that the improper placement was a proximate cause of the accident. These findings are supported by legally sufficient evidence in the record. There was testimony at trial explaining the manner in which old windows were removed and replaced with new ones. Specifically, there was testimony by the job foreman that pressure would have to be applied to the sashes and, at the same time, the windows forcibly twisted loose, all while plaintiff was standing on a ladder. There was further testimony from the job foreman that the floor upon which the ladder was placed was bare, highly polished and shiny. Additionally, plaintiff testified that the ladder, which he had positioned sideways, approximately six inches from the window, fell from beneath him as he was pushing against the sash of that window. Finally, there was also testimony by the job foreman that no safety equipment, safety belts, hard hats, scaffolding or anything else, was used to protect plaintiff from falling through the fourth floor window or to secure the ladder to insure that it remained steady and erect while plaintiff was applying pressure to that window.

The jury was clearly entitled to find that, under the circumstances, defendants failed to satisfy the responsibilities imposed by section 240 (1) in that they had not "erected” or "placed” the ladder from which plaintiff fell in such a manner, or with such safeguards, as necessary to provide plaintiff with "proper protection” while he was working on defendants’ building.[2] Consequently, regardless of any carelessness on plaintiff’s part which might also have contributed to his fall, defendants were properly held absolutely liable for the full extent of the damages proximately resulting from the improper placement of the ladder.

This court’s decision in Long v Forest-Fehlhaber ( 55 NY2d 154 ) is inapposite. In that case, we held that a violation of Labor Law § 241 (6) does not constitute negligence as a matter of law resulting in absolute liability because "subdivision 6 does no more than broadly provide” that the work area " 'provide reasonable and adequate protection and safety.’ ” (Id., at p 160.) We explicitly contrasted section 240 and the

2 Indeed, this court noted in somewhat similar respects in Zimmer that "[ljadders were present at the worksite, but none had been erected for plaintiffs specific task.” (65 NY2d, at p 519.) Absolute liability was imposed under Labor Law § 240 (1) even though a factual question was raised as to whether other safety devices were necessary or even feasible.

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first five subdivisions of section 241 which set forth more specific requirements, where the failure to comply automatically renders the owner or contractor absolutely liable without regard to the worker’s own negligence. (Id,., at p 160; see also, Zimmer v Chemung County Performing Arts, 65 NY2d 513 , 521-522, supra.)

Similarly, a diminishment of defendants’ liability under the doctrine of comparative causation as applied by this court in Arbegast v Board of Educ. ( 65 NY2d 161 ) is inapplicable here. The policy purpose underlying Labor Law § 240 is to impose a "flat and unvarying” duty upon the owner and contractor despite any contributing culpability on the part of the worker. (Zimmer v Chemung County Performing Arts, supra, at p 521 .) In Arbegast, we specifically recognized that the diminishment of liability by a comparative evaluation of the injured party’s culpability would, indeed, be disallowed where thus proscribed by public policy. (Arbegast v Board of Educ., supra, at p 170; cf. Rosado v Proctor & Schwartz, 66 NY2d 21 .)

In Wright v State of New York, both courts below found that the absence of guardrails or other protective devices resulted in a denial of proper safety protection to claimant while he was working on the scaffold and, in turn, that this absence was a proximate cause of claimant’s fall to the ground below. Notwithstanding that section 240 (2) specifically requires guardrails only where the scaffold is more than 20 feet high, the general standard of section 240 (1), as correctly applied by the Appellate Division, requires that scaffolding be so constructed and erected as "to give proper protection” to the worker, without regard to height. In other words, Labor Law § 240 (1) mandates guardrails on scaffolds less than 20 feet in height wherever a risk is posed to a construction worker so as to require guardrails to provide such worker with "proper protection”. Under the circumstances here, the courts below agreed, as a question of fact, that the scaffolding should have been equipped with railing or other safety device to provide the necessary protection to the worker.[3] Conse

3 We disagree with the dissenter that safety rails are not required unless the scaffolding is more than 20 feet above the ground. Rather, we believe that the Legislature has mandated safety rails and whatever "other devices” are necessary to protect the worker regardless of the height at which he is working above the ground. Section 240 (1) expressly requires, without any height limitation or other qualification, that "scaffolding * * * and other devices * * * be so constructed * * * as to give proper protection.”

Dissent

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quently, claimant’s own negligence being inapplicable under section 240 (1), the State was properly held absolutely liable for the full extent of the damages proximately caused by the absence of guardrails or other safety device to prevent a fall from the scaffold.

We have examined the State’s contentions regarding the derivative claim and find them to be without merit.

Accordingly, in each case, the order of the Appellate Division should be affirmed, with costs.

(dissenting). These appeals test the reach of Labor Law § 240, the scaffolding act, which, with certain exclusions not relevant here, casts the owner and contractor of a construction site in absolute liability for injuries sustained by an employee at the site. In each case, I would hold that liability, if any, can be imposed only under Labor Law § 241 (6), to which comparative fault is a defense.

Labor Law § 240 is a "self-executing statute” containing specific standards with which owners and contractors must comply (Long v Forest-Fehlhaber, 55 NY2d 154 , 160; see also, Monroe v City of New York, 67 AD2d 89 ). The duty is nondelegable and is not diminished by contributory fault (1 NY PJI2d 502). There are two subdivisions. The first requires owners and contractors to furnish and erect scaffolding and ladders which are so constructed and placed as to give proper protection to the person performing the work. The second subdivision provides that when scaffolding is more than 20 feet from the ground, it "shall have a safety rail of suitable material properly attached” (Labor Law § 240 [2]).

Although, as a statute designed to protect workers, Labor Law § 240 should be liberally construed (Zimmer v Chemung County Performing Arts, 65 NY2d 513 ), what amounts to an absolute duty to guarantee safety may not be extended to establish a right of recovery not envisioned by the Legislature (Mack v Altmans Stage Light. Co., 98 AD2d 468 , 473; DaBolt v Bethlehem Steel Corp., 92 AD2d 70 , 75; Deso v Albany Ladder Co., 26 AD2d 182 , 185). It "benefits only those persons injured by a fall from an elevated height due to a lack of, or defective, safety devices designed to prevent such a fall” (Van Slyke v Niagara Mohawk Power Corp., 93 AD2d 990 , 991, affd in part, appeal dismissed in part 60 NY2d 774 ; see also, Zimmer v Chemung County Performing Arts, supra; Mack v Altmans Stage Light. Co., supra), and does not establish a rule of law to

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the effect that anyone who falls off a ladder may recover damages from the owner. An insurer’s liability without fault is the function of workers’ compensation, not Labor Law § 240.

In contrast to Labor Law § 240, Labor Law § 241 (6), imposes a general, albeit nondelegable, duty upon owners and contractors to provide a safe place to work. It requires all work areas to "be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein” (Labor Law § 241 [6]). The Board of Standards and Appeals is authorized to make rules to carry out the statutory purposes, a violation of which is merely evidence of negligence, and damages may be reduced by the contributory fault of the employee (Long v Forest-Fehlhaber, 55 NY2d 154 , supra; La France v Niagara Mohawk Power Corp., 89 AD2d 757 , appeal dismissed 58 NY2d 747 ; 1 NY PJI2d 502).

Thus, as we emphasized in Long v Forest-Fehlhaber (supra), Labor Law §§ 240 and 241 (6) impose different standards of care and different obligations, and for the purpose of analysis, must be kept separate and apart. When absolute liability is imposed under Labor Law § 240, the standard of care must have its roots either in the statute itself or in decisional law construing the statute; the rules of the Board of Standards and Appeals, which are pertinent in an action predicated on Labor Law § 241 (6), are foreign to Labor Law § 240 (Long v Forest-Fehlhaber, supra; see, Prosser and Keeton, Torts § 36, at 227 [5th ed]; Restatement [Second] of Torts § 285, illustration 4; § 282 comment f; 1A Warren’s Negligence, Statutes and Ordinances §§ 7.06, 9.02 [2d ed]). In my view, neither case before us comes within the ambit of Labor Law § 240.

In Bland v Manocherian, plaintiff Thomas Bland, an iron worker, was working inside the fourth floor of an apartment building. He alone took a 5-foot high wooden "A”-frame stepladder, which his employer supplied, and placed it alongside the window that he was going to remove, some 6 or 7 inches from the window sash and 9 or 10 inches from the outside of the building. It appears that he fell out the window in a feat of acrobatics, as he was reaching up to twist the sash.

Although the jury found that the ladder was not defective, it found defendant Fraydun Realty, the owner, absolutely liable because of a claimed "misplacement” of the ladder by the window, which, it bears emphasis, Bland himself had used

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and. placed.[1] There is absolutely no proof in the record to support such a finding, much less a breach of duty by the defendants.

The evidence established that the ladder was placed on a level, nonslippery, wooden floor, and that it did not slip when it purportedly collapsed. There is no proof of any lack of a safety footing on the ladder which could have caused a skid. There is no direct evidence of improper placement, and, unlike Glielmi v Toys "R" Us ( 62 NY2d 664 ), no specific safety standards were submitted to the jury. In short, there is "no evidence 'that ought reasonably to satisfy a jury that the fact[s] sought to be proved [are] established’ ” (Garcia v City of New York, 65 NY2d 805 , 807, affg 104 AD2d 438 , quoting Blum v Fresh Grown Preserve Corp., 292 NY 241 , 246). Nothing could reasonably convince a fact finder that there was any actionable breach of Labor Law § 240, and it is our duty to set the verdict aside (Garcia v City of New York, supra).

More important, I simply cannot accept the notion that there is a duty upon an owner to follow a worker and verify that the worker has "properly placed” a ladder in order for the owner to satisfy the statutory mandate. Such a proposition is, on its face, absurd. Indeed, Bland himself testified that he would only take directions from his foreman and would pay no attention to anyone else.

I read Zimmer v Chemung County Performing Arts ( 65 NY2d 513 , supra) and Haimes v New York Tel. Co. ( 46 NY2d 132 ) as requiring owners and contractors to supply safe equipment and safety devices. In Zimmer, it was an "uncontroverted fact that no safety devices were provided to plaintiff at the work-site” (65 NY2d, at p 523; emphasis supplied), which is not the case here. These authorities should not be extended to cover injuries more appropriately compensated through the Workers’ Compensation Law.

It may be that Bland could have recovered damages above that provided by workers’ compensation by proceeding under a Labor Law § 241 (6) theory. In that case, of course, his own culpable conduct would have reduced recoverable damages. The case should not be returned for a new trial, however, because plaintiff’s counsel expressly declined to submit that cause of action to the jury.

* A prior verdict, predicated on the theory that defendant failed to supply Bland with a safety belt, was reversed by the Appellate Division, First Department ( 93 AD2d 689 ).

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In Wright v State of New York, the basis for reversal is even more clear. The Court of Claims found liability under Labor Law § 241 (6) because of a failure to supply guardrails on the scaffold involved, reduced recovery by reason of the workers’ culpable conduct, and dismissed the spouse’s claim for loss of consortium. The Appellate Division, however, reversed and granted full recovery, including $10,000 for loss of consortium, on the theory that the failure to supply guardrails on the scaffold was the proximate cause of injury, mandating recovery under Labor Law § 240.

As indicated, Labor Law § 240 (2) requires safety rails on scaffolds "more than twenty feet from the ground,” and since the scaffold here was seven feet from the ground, no liability may be imposed under that subdivision (Ryan v Cenci, 95 AD2d 963 , 964). Nor is it appropriate to read such a safety rail requirement into the general language in subdivision 1 (see, McKinney’s Cons Laws of NY, Book 1, Statutes §§ 97, 98). Had the Legislature intended to mandate safety rails on scaffolds less than 20 feet in height, it would have done so.

Although section 23-5.1 of the Industrial Code states that scaffolds seven feet or more should have their open sides equipped with safety railings (12 NYCRR 23-5.1 [j] [1]), that standard is irrelevant to a Labor Law § 240 claim. Use of the Industrial Code in such a circumstance amounts to an impermissible end run around Long v Forest-Fehlhaber (supra).

Insofar as the loss of consortium claim is concerned, there is no evidence to support an award of damages. As the Court of Claims observed, "the only evidence in that regard is that her husband helped around the house, drove the family car, [and] mowed the lawn with a riding mower. Since the accident he cannot do the household repairs as well as previously and he has difficulty in lifting, buttoning his shirt or tying his necktie.”

Accordingly, in Bland I would reverse the order of the Appellate Division and dismiss the complaint, and in Wright I would reverse the order of the Appellate Division and reinstate the judgment of the Court of Claims.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye and Alexander concur with Judge Jasen; Judge Titone dissents and votes to reverse in a separate opinion.

In each case: Order affirmed, with costs.

Cases cited

Statutes and regulations cited