Download FOWX v. THE STATE OF NEW YORK, #2008-029

FOWX v. THE STATE OF NEW YORK, #2008-029-037, Claim No. 112603
Synopsis
State liable for worker’s injury resulting from wobbling ladder on State property.
Case Information
UID:
2008-029-037
Claimant(s):
LEGRAND FOWX, II
Claimant short name:
FOWX
Footnote (claimant name) :
Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s):
112603
Motion number(s):
Cross-motion number(s):
Judge:
STEPHEN J. MIGNANO
Claimant’s attorney:
FELDMAN, KLEIDMAN & COFFEY, LLP
By: Marsha Solomon Weiss, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERAL
By: Jyotsna Gorti, Assistant Attorney General
Third-party defendant’s attorney:
Signature date:
September 22, 2008
City:
White Plains
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)
Decision
Claimant alleges he was injured in a fall from a ladder while working at a facility owned
and operated by the State Office of Mental Retardation and Developmental Disabilities
(OMRDD). At the commencement of trial, the parties stipulated as follows: (1) claimant was an
employee of a firm known as Commercial Instruments and Alarm Systems (CIA); (2) claimant
was working at the OMRDD building pursuant to a contract between his employer and the State,
and (3) the ladder in question was in good working order and not defective.
Claimant, who was 28 years old on the July 29, 2004 accident date1, was first employed
by CIA in 2002 installing and maintaining commercial and residential alarm and sprinkler
systems. He was working at the State facility at 21 Belden Road in Carmel pursuant to a
contract to upgrade the fire and burglar alarm systems on the premises, a two-day job that had
started July 28, 2004.
Claimant drove a van owned by CIA carrying all the tools and equipment needed for the
job, including a ladder that claimant used on the 28th. That day he worked throughout the house
installing smoke detectors, using the CIA ladder. On July 29 most of his work involved ground
level electrical panels. Toward the end of the day he needed to access a smoke detector at the
top of the stairs leading to the basement. Rather than get his ladder from the van, he used an
aluminum folding ladder he found in a hallway closet. He opened the ladder, set the braces and
placed it on the floor, which was composed of “natural blue stone” tiles (see Exhibit C).2 He
described the floor tiles as not at a “consistent level.” He ascended to the ladder’s second rung,
about 20 inches off the ground and was on it less than a minute when “the ladder lost its footing
and went off to the side . . . I braced myself on the wall and dislocated my left shoulder.” He
stated he smacked the wall with his hand and then fell to the ground.
No witnesses were present when these events occurred. Claimant called for the other
installer to assist him and they packed up their equipment and left since the job was essentially
completed.
The next day, he reported the incident to Armand Braun who was in charge of scheduling
for CIA. According to a Workers’ Compensation accident report completed on August 3, 2004,
the accident occurred at 2 p.m.
John Lombardi, President of CIA, testified that he was informed of claimant’s accident
the following morning. He stated claimant told him that he was stepping off the ladder, with
one foot on the ground, when the ladder moved and claimant reached against the wall to brace
himself. Mr. Lombardi inferred from some gestures claimant allegedly made, that the ladder
was unopened at the time and was leaning against the wall. However, he acknowledged that
claimant never said any such thing. It was also noted by claimant’s counsel that the Workers’
Compensation accident report, which was signed by a different employee of CIA five days after
the accident, made no mention of the ladder being unopened or leaning against the wall. The
accident description contained therein was “ladder leaned to side, I went to brace myself on the
wall [and] dislocated my shoulder” (Exhibit 7). It states neither that claimant was alighting from
the ladder with one foot on the floor nor that the ladder was not properly opened at the time.
The court finds no basis for accepting Mr. Lombardi’s version of the events over that of
claimant.
Claimant withdrew the portion of his claim based on Labor Law §200, leaving only the
claim based on §240(1). That statute provides:
“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.”
Defendant argues that there are a number of reasons why the facts of this case cannot
support liability under §240(1). However, none of defendant’s arguments withstands analysis
given the state of the law in this department.
Initially, the court rejects defendant’s contention that claimant is not entitled to the
protection of the statute because the work he was performing did not constitute an alteration of
the structure but rather should be considered routine maintenance, depriving claimant of the
protection of §240(1). The work included the installation of three new pull stations on the
building’s walls, installation of additional wiring inside the walls and replacement and upgrading
of the fire and burglar alarms. This is demonstrably not mere maintenance and repair (Joblon v
Solow, 91 NY2d 457 [1998]; Becker v ADN Design Corp., 51 AD3d 834 [2d Dept 2008];
Fitzpatrick v State of New York, 25 AD3d 755 [2d Dept 2006]; compare Holler v City of New
York, 38 AD3d 606 [2d Dept 2007]; Acosta v Banco Popular, 308 AD2d 48 [1st Dept 2003]).
See Exhibits 5 and K.
Defendant’s contention that claimant’s use of the ladder found in the premises’ closet,
rather than his own ladder, shields defendant from liability is similarly misplaced. The parties
stipulated that the ladder used by claimant was not defective in any way. Thus, his choice to use
that ladder was totally irrelevant to the causation of this accident and cannot serve as the
predicate for a finding that claimant’s actions were the sole proximate cause of the incident as
urged by defendant (compare Destefano v City of New York, 39 AD3d 581 [2d Dept 2007]
[possibility that worker leaned unopened ladder against wall prevented summary judgment in
worker’s favor]; Plass v Solotoff, 5 AD3d 365 [2d Dept 2004][worker’s unilateral decision to
utilize only one of three available planks of scaffold led to conclusion that his actions were the
sole proximate cause of the accident]).
Defendant argues that claimant was not injured as the result of an elevation-related risk of
the type intended to be covered by the statute because he did not fall from the ladder but rather
was injured when he braced himself against the wall. However, “[t]he fact that the [claimant]
did not actually fall from the ladder is irrelevant as long as the ‘harm directly flow[ed] from the
application of the force of gravity to an object or person’ ” (Lacey v Turner Constr. Co., 275
AD2d 734, 735 [2d Dept 2000] 3, quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494,
501; see also Ortiz v Turner Constr. Co., 28 AD3d 627 [2d Dept 2006]; Robertti v Powers
Chang, 227 AD2d 542 [2d Dept 1996]). According to claimant’s testimony, which the court
accepts, he was injured while successfully preventing himself from falling from the ladder.
Such a scenario is sufficient for liability to attach under the strict liability imposed by the statute.
It is settled that the duty imposed on a property owner by Labor Law §240(1) is
non-delegable and unaffected by whether the owner exercises any degree of supervision over the
work. The purpose of the statute “is to protect workers and to impose the responsibility for
safety practices on those best situated to bear that responsibility” (Ross v Curtis-Palmer
Hydro-Elec. Co., 81 NY2d 494, supra at 500 [1993]), not necessarily to assess liability based on
fault. Thus, a factual finding that an injury occurred when an unsecured ladder tipped, slid or
became unsteady requires a finding in favor of the claimant in the absence of proof that the
claimant’s own culpable conduct was the sole proximate cause of the event. The court has
already noted that qualifying culpable conduct is not present in the case at bar (Ricciardi v
Bernard Janowitz Constr. Corp., 49 AD3d 624 [2d Dept 2008]; Argueta v Pomona Panorama
Estates, Ltd., 39 AD3d 785 [2d Dept 2007]; Rivera v Dafna Constr. Co., Ltd., 27 AD3d 545 [2d
Dept 2006]; Chlap v 43rd St.–Second Ave. Corp., 18 AD3d 598 [2d Dept 2005]; Guzman v
Gumley-Haft, Inc., 274 AD2d 555 [2d Dept 2000]). Here, the only plausible explanation for the
incident in which claimant was injured was that the ladder shifted as the result of the uneven
nature of the floor, composed of stone tiles separated by grout lines. The shifting of the ladder
caused claimant to reflexively reach and brace himself against the wall, apparently causing injury
to his shoulder. 4 Unlikely as it may seem, such factual findings mandate the conclusion that
defendant is liable pursuant to §240(1) and this court must defer to the judgment of the
Legislature on this issue.
Accordingly, the Clerk of the Court is directed to enter an interlocutory judgment in favor
of claimant, after which a damages trial will be scheduled.
September 22, 2008
White Plains, New York
HON. STEPHEN J. MIGNANO
Judge of the Court of Claims
1.At trial, the court granted claimant’s motion, without opposition from defendant, to conform
the pleadings to the proof; i.e., to amend the erroneous reference in the claim to July 24, 2004 to
the actual accident date, July 29, 2004.
2.Unless otherwise indicated, all quotations are from the audio recordings of the trial
proceedings.
3.The plaintiff in Lacey was injured when “the ladder moved and lost contact with the wall, and .
. . in saving himself from falling from the ground, the plaintiff injured his back” (275 AD2d
734, 735).
4.Only the issue of liability was tried at this bifurcated trial.