[*1]
Wonderling v CSX Transp., Inc.
2006 NY Slip Op 50337(U) [11 Misc 3d 1061(A)]
Decided on January 17, 2006
Supreme Court, Monroe County
Stander, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on January 17, 2006
Supreme Court, Monroe County


Joseph K. Wonderling, Plaintiff,

against

CSX Transportation, Inc., Defendant.




2004/08998



Attorney for Plaintiff:Timothy C. Bellavia, Esq.

Parisi & Bellavia

16 West Main Street, Suite 736

Rochester, New York 14614

Attorney for Defendant:Aaron J. Ryder, Esq.

Hiscock & Barclay

Financial Plaza

221 South Warren Street

P.O. Box 4878

Syracuse, New York 13221-4878

Thomas A. Stander, J.

The Plaintiff, Joseph K. Wonderling, submits a motion seeking an order for partial summary judgment on the issue of liability. The Defendant, CSX Transportation, Inc., submits a cross-motion seeking denial of Plaintiff's motion for partial summary judgment and granting summary judgment [*2]to the Defendant dismissing the Complaint and the action.

Defendant asserts that there is no evidence of ownership by CSX Transportation, Inc. of the property where the Plaintiff was working and was injured. The Plaintiff submits an affidavit of a Title Examiner setting forth that the owner of the land on May 10, 2004 on which Pier 1 of this project was located was Defendant, CSX Transportation, Inc. At oral argument the counsel for the Defendant conceded ownership.

The Plaintiff commenced this action seeking a judgment under New York Labor Law §240[1]. The motion of the Plaintiff for partial summary judgment on the issue of liability is DENIED. The motion of the Defendant for summary judgment is DENIED.

I.FACTS

On May 10, 2004 the Plaintiff, Joseph K. Wonderling, fell from scaffolding and suffered injuries. Mr. Wonderling was employed by Wind-Sun Construction, a contractor who was involved in construction on the Lyndon Road Pedestrian Bridge Project.

Wind-Sun was constructing concrete piers to support the pedestrian walkway. In order to pour the concrete for the piers, Wind-Sun erected scaffolding at the location where a pier was to be placed. On May 7, 2004 Wind-Sun employees erected a scaffolding and poured the concrete for the first pier. On May 10, 2004 construction was to begin on the second pier. To accomplish this the scaffolding surrounding the first pier needed to be disassembled and moved to surround the location of the second pier. While attempting to disassemble the scaffolding in order to move it, the Plaintiff fell off the scaffolding. The scaffolding was approximately 35 feet high and the Plaintiff fell from a height of approximately 26 feet. The Plaintiff was not wearing any safety devices at the time of his fall.

An employee of Wind-Sun Construction, who was on the worksite at the time of the Plaintiff's fall, avers that it was raining hard on the morning of May 10, 2004 at the worksite. This employee states that he refused to climb the scaffolding to disassemble it because the rain made it slippery and it was too dangerous. Affidavits from the Plaintiff and the Defendant submit differing accounts of what work was assigned to be performed on the morning of May 10, 2004.

II.SUMMARY JUDGMENT ON LABOR LAW §240[1] CLAIM

The Plaintiff, Joseph K. Wonderling, seeks partial summary judgment on the issue of liability on his Labor Law §240[1] claim. The Defendant, CSX Transportation, Inc., submits a cross-motion seeking denial of Plaintiff's motion for partial summary judgment and granting summary judgment to the Defendant.

[*3]

The Plaintiff fell while attempting to dismantle scaffolding to move it to another location. The Plaintiff makes a prima facie showing that he is entitled to partial summary judgment on the Labor Law §240(1) claim (see Labor Law §240(1); Cahill v Triborough Bridge and Tunnel Authority, 4 NY3d 35,39 [2004]; Palacios v Lake Carmel Fire Dept., Inc., 15 AD3d 461,462 [2d Dept. 2005]). Plaintiff establishes that he fell from an elevated work site during the dismantling of scaffolding and testified at a 50-h hearing that the scaffolding shifted during the dismantling. Plaintiff asserts that this is a protected activity and that the movement of the scaffolding while Plaintiff attempted to dislodge the planking is evidence of its instability and as such was an inadequate safety device.

In this case the Defendant opposes the summary judgment motion arguing that Plaintiff fails to establish a violation of Section 240, or even if a violation is established, fails to show that the alleged violation was the proximate cause of his injuries. The Court of Appeals states that it has never held "that a fall from a scaffold or ladder, in and of itself, results in an award of damages to the injured party" and reiterates that "an accident alone does not establish a Labor Law §240(1) violation or causation" (Blake v Neighborhood Housing Services of New York City, 1 NY3d 280,288 [2003]).

Recent Court of Appeals cases now clearly require more than just a fall from an elevated worksite in order to establish a claim under Labor Law §240(1). Where adequate safety devices and instructions on use were provided to the employee, the employee "may not recover under Labor Law §240(1) for injuries caused solely by his violation of those instructions, even though the instructions were given several weeks before the accident occurred" (Cahill at 37). A Plaintiff's choice to use an inappropriate device to move between heights and to jump down from an elevated worksite, was determined to be the sole cause of his injury; and, thus Plaintiff was not entitled to recover under Labor Law §240(1) (Montgomery v Federal Express Corp., 4 NY3d 805,806 [2005]). Therefore, Courts must review the factual circumstances in each Labor Law §240 case. This review of the Labor Law cases must take into account the recalcitrant worker defense and the issue of sole proximate case.

Based on the Courts review of the facts in the instant case, the Defendant raises a triable issue of fact in opposition to the Plaintiff's summary judgment motion.

A.Recalcitrant Worker

The Court of Appeals decided that in a Labor Law §240(1) action summary judgment should not be granted in an employees favor, when instructions to use safety equipment were provided before the accident, the employer had safety devices available, and the employer gave the employee extensive instructions on their use[FN1] (Cahill at 37). "[Where] testimony raise[s] triable issues of fact regarding the availability of adequate safety devices and the plaintiff's conduct as a recalcitrant [*4]worker who deliberately refused to use such devices, summary judgment should [be] denied"[FN2] (Palacios v Lake Carmel Fire Department, Inc., 15 AD3d 461 [2d Dept. 2005]).

The Defendant claims that the Plaintiff was a recalcitrant worker. Defendant asserts that there were safety harnesses provided to the workers on the project; that Plaintiff was aware he was required to utilize a safety harness; and that the necessary safety equipment was provided but Plaintiff chose not to use it.

The Plaintiff submits that there is no issue of fact on whether Plaintiff was recalcitrant. Plaintiff argues that the evidence presented in affidavits does little more than state the statutory language required to try and establish the recalcitrant worker defense.

Based on the papers submitted, there is no evidence that Defendant gave specific instructions to the Plaintiff nor is there evidence of when any instructions were provided that made the Plaintiff aware of the need to use safety harnesses. The evidence on this motion is that the employees at the work site had no knowledge of where the safety harnesses were located and no knowledge of where the safety lines could have been attached while dismantling the scaffolding.

In the cases where summary judgment was denied to the employee based on the recalcitrant worker defense, extensive evidence was presented which showed that there were detailed instructions given by the employer to the employee regarding the use of safety devices (see Cahill at 37-38; Palacios at 463). This type of evidence is not submitted on this motion. The evidence presented in this case is insufficient to raise an issue of fact on the recalcitrant worker defense.

B.Sole Proximate Cause

In applying the doctrine of strict liability in a Labor Law §240(1) action, "liability is contingent on a statutory violation and proximate cause" (Blake at 287). "Even when a worker is not recalcitrant', we have held that there can be no liability under section 240(1) when there is no violation and the worker's actions . . . are the sole proximate cause' of the accident"[FN3] (Blake at 290; Cahill at 40). If a reasonable jury could conclude that Plaintiff's actions, rather than any violation of Labor Law [*5]§240(1), was the sole proximate cause of his injuries, then summary judgment is not warranted because such findings could lead to the determination that liability under Labor Law §240(1) does not exist (Blake at 290; Cahill at 40).

The legal doctrine established by the Court of Appeals is that no liability exists under Labor Law §240(1) when it is determined that the employee's conduct was the sole proximate cause of the accident. (Blake at 290 [employee negligent in how he used ladder, jury verdict dismissing complaint); Montgomery at 806 [choice to climb on bucket and then jump down was sole cause of injury, summary judgment to Defendant]; Cahill at 40 [employee failed to use safety line which was available and had been instructed to use, summary judgment denied]). The Appellate Divisions have implemented this general principle when addressing summary judgment motions on Labor Law §240(1) claims. The Courts, in determining whether summary judgment is warranted, assess whether there is sufficient evidence to lead to a conclusion that a violation of the statute was not the proximate cause of the accident. (Tronolone v Praxair, Inc., __ AD3d __, 2005 NY Slip Op 7641; 2005 NY App. Div. LEXIS 11052 [4th Dept. Oct. 2005]; Szuba v Marc Equity Properties, Inc., 19 AD3d 1176 [4th Dept. 2005]; Ewing v ADF Construction Corp., 16 AD3d 1085 [4th Dept. 2005]; Patrick v People, Inc., 11 AD3d 990 [4th Dept. 2004]); Negron v City of New York, __ AD3d __, 2005 NY Slip Op 7509; 2005 NY App. Div. LEXIS 10821 [2d Dept. Oct. 2005]); Thomas v Fall Creek Contractors, Inc., 21 AD3d 756 [1st Dept. 2005]). These cases all address circumstances involving the use of safety devices.

In this case, the situation involves an employee who fell while dismantling scaffolding. Plaintiff asserts that his accident meets the requirements for protection under Labor Law §240(1) because he fell from an elevated height while dismantling a scaffolding structure. In opposition, the employer alleges that the employee was directed not to perform the work of dismantling the scaffolding on the date of the accident because it was raining and the wet scaffolding would be dangerous. The employer claims that the employee chose to dismantle the scaffolding despite such directives.

How a directive, to not perform the work that leads to an employees injuries, impacts a Labor Law §204(1) claim must be consistent with Court decisions involving directives related to safety devices. Under the current cases addressing Labor Law §240(1) claims, the Courts delineate the need to establish proximate cause. If proximate cause can be a question of fact when an employee refuses to use the supplied safety device or when an employee makes a choice to not use the safety devices provided, then a directive not to perform the work that puts the employee within the parameters of Labor Law §240(1) due to a dangerous condition may also raise a question of fact on proximate cause for a jury to determine (see Cahill at 40; Montgomery at 206; Blake at 290-91; Tronolone __ AD3d __, 2005 NY Slip Op 7641).

This Court has decided that there is no issue of fact on whether Plaintiff was a recalcitrant worker due to his refusal to use a safety device or to use a safety device properly. However, as stated by the Court of Appeals

[t]he controlling question, however, is not whether plaintiff was "recalcitrant," but whether a jury could have found that his own [*6]conduct, rather than any violation of Labor Law § 240(1), was the sole proximate cause of his accident.


(Cahill at 39-40). On this summary judgment motion, the question is whether the Defendant has established an issue of fact on the employee's conduct being the sole proximate cause of his injuries.

Here, the evidence presented consists of an affidavit of the employer stating that during a morning phone conversation he instructed the Plaintiff not to disassemble the scaffolding that day because of the rainy weather conditions and the crane needed to disassemble the scaffolding had a flat tire. The employer avers that he knew the scaffolding would be slippery which would make the disassembling of the scaffolding structure dangerous. The employer, Kevin Foster, was not at the project site and has no knowledge of the weather conditions at the work site at the time of the Plaintiff's injuries.

The employee, at a 50-h Hearing, testified that the weather was fair on the morning in question and that a mist started right before he fell. The employee concedes he had a morning phone conversation with Kevin Foster, his employer, but avers that Mr. Foster told him to disassemble the scaffold and set it up next to pier 2. The employee states that there was no discussion about the weather conditions or about renting scaffolding.

The only disinterested witness affidavit submitted on this motion, of a person with personal knowledge of the work site conditions, are those of Donald Presher. Mr. Presher submitted affidavits prepared by and on behalf of the position of both the Plaintiff and the Defendant. The testimony of Mr. Presher is that on the morning of May 10, 2004 he was told by the Project Foreman, the Plaintiff in this action, to disassemble the scaffolding around pier 1. Mr. Presher states that it was raining very hard causing the scaffolding to be slippery and he decided it was too dangerous to climb and disassemble the scaffold structure. This affidavit also states that the other employee on the job site refused to climb the scaffolding to disassemble it because the slippery conditions made it too dangerous.

Based on these affidavits a jury could find that Plaintiff was specifically instructed on the accident date not to perform the work of disassembling the scaffolding due to the rainy weather making the scaffolding slippery and dangerous to climb; that it was raining hard and other employees refused to climb the structure; that the employee was expected to follow the instructions; that Plaintiff chose to disregard the employer's directives to not disassemble the scaffolding and ignored the position of fellow workers at the project site as to the dangerous condition; that Plaintiff climbed the slippery scaffolding structure to begin disassembling it; and that if Plaintiff had not made that choice he would not have been injured. Such possible factual findings by a jury necessarily could lead to the conclusion that the Defendant has no liability under Labor Law §240(1) because the Plaintiff's own actions are the sole proximate cause of his injuries. Where there is a question of fact as to the liability of the Defendant, summary judgment must be denied. [*7]

Furthermore, unlike the cases where the employee refuses to use a safety device, here the Plaintiff was allegedly specifically directed not to perform the very work which led to his injuries. There is an issue of fact whether there was a violation of Labor Law §240(1) when the nature of the labor to be performed by the employee is in question. In order for liability to attach under the statute there must be a showing that the Defendant failed to furnish or erect "for the performance of such labor" safety devices so as to "give proper protection to a person so employed" (Labor Law §240[1]). The evidence presented by the employer and the employee creates a question of fact as to what work, if any, was to be performed on March 10, 2004 by the Plaintiff.

There is a question of fact on the proximate cause of the Plaintiff's accident and injuries.

III.CONCLUSION

The Defendant has established a question of fact requiring a trial. The motion of the Plaintiff, Joseph K. Wonderling, for partial summary judgment against the Defendant on the issue of liability is DENIED. The cross-motion of the Defendant, CSX Transportation, Inc., for summary judgment to the Defendant dismissing the Complaint is DENIED. The cross-motion of the Defendant, CSX Transportation, Inc., seeking denial of Plaintiff's motion for partial summary judgment is GRANTED.

O R D E R


Based upon all the papers submitted in support and in opposition to these motions, upon the above Decision, and after due deliberation, it is hereby
ORDERED that the motion of the Plaintiff, Joseph K. Wonderling, for partial summary judgment on the issue of liability against the Defendant, CSX Transportation, Inc., is DENIED; it is further
ORDERED that the motion of the Defendant, CSX Transportation, Inc., for summary judgment to the Defendant dismissing the Plaintiff's Complaint and action is DENIED; and it is further
ORDERED that the motion of the Defendant, CSX Transportation, Inc., seeking denial of Plaintiff's motion for partial summary judgment is GRANTED.


Dated:January 17, 2006

Rochester, New York [*8]

__________________________________________

Thomas A. Stander

Supreme Court Justice C:\htformat\f5033760.txt

Footnotes


Footnote 1: In Cahill there was extensive testimony regarding instructions on the use of safety lines to the employee, and evidence of how the safety line should have been used to protect the employee (Cahill at 37-38).

Footnote 2:Under these circumstances, the Court found that the Plaintiff was "recalcitrant", but determined that such finding was not the controlling question (Id. at 39). The issue to be determined was whether a jury could find that the employees own conduct was the sole proximate cause of his accident (Id. at 39-40).

Footnote 3: In Cahill the Court determined that even though the worker may have been recalcitrant, the controlling question was whether a jury could find that the employees own conduct was the sole proximate cause of his accident. Prior to this decision Courts had held that evidence of instructions by an employer to use a certain safety device or how to use a safety device "would not, by itself, create an issue of fact sufficient to support a recalcitrant worker defense" (Enright v Buffalo Technology Building "B" Partnership, 278 AD2d 927 [4th Dept. 2000][citing Gordon v Eastern Ry. Supply, 82 NY2d 555, 563]).