Yaeger v. New York Telephone Co. , 148 A.D.2d 308 ( 1989 )

Order of the Supreme Court, New York County (Martin Evans, J.), entered on October 13,. 1987, which granted the motion by third-party defendant Dover Elevator Company for partial summary judgment pursuant to CPLR 3212 (e) on the ground that Labor Law § 240 (1) does not apply to the facts of this case, is affirmed, without costs or disbursements.

On January 7, 1981, plaintiff Charles Yaeger, who had been employed by a subcontractor, third-party defendant Dover Elevator Company, of general contractor John Thatcher & Son, was working at a construction site at 1166 Sixth Avenue in Manhattan when he was injured in the course of erecting a truck elevator. At the time of the accident, plaintiff was at the bottom of the elevator shaft, known as the "pit”, where he was engaged in attaching one piece of steel platform to a second piece that had already been connected to a channel and cross brace. These two sections of platform were suspended some 2 to 3 feet over plaintiff’s head as he aligned the two pieces in order to bolt them together. The only object supporting the two portions of the platform, as well as the channel and cross brace, was a chain device called a "chain-fall”, which purportedly had a lifting capacity of 1 to 2 tons whereas the platform itself supposedly weighed at least five tons. Consequently, the channel and cross brace bent and fell downward, causing the platform pieces to collapse into the pit and injure plaintiff.

It is the contention of third-party defendant Dover Elevator Company that section 240 (1) of the Labor Law does not apply in the instant situation since plaintiff was struck by a falling object while he was working at the bottom of an elevator shaft. In that regard, section 240 (1) provides that: "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.”

The dispute involved herein is whether Labor Law § 240 (1) covers only those employees operating at elevated heights or was intended to extend protection from falling objects even to persons working at ground level. Appellate courts have disagreed with respect to the scope of this statute such that the Third Department favors the expansion of section 240 (1) to include workers on the ground hit by falling objects or otherwise injured whereas the Fourth Department has expressed the contrary view, and the Second Department appears to have, at various times, espoused both positions.

Thus, in Dougherty v State of New York (113 AD2d 983), the Third Department held that defendant’s failure to furnish a scaffold rendered it liable under Labor Law § 240 (1) when claimant therein fell, sliding some 10 to 15 feet down si slope, as he was attempting to place a ladder under a bridge which he was engaged in repairing and renovating. Although defendant had previously erected a scaffold on the site, it had been removed prior to the time that claimant began his work. In another matter, Gregory v General Elec. Co. (131 AD2d 967, 968), the Third Department rejected what it characterized as defendants’ "unreasonably restrictive interpretation of the statutory protection afforded” when it concluded that the failure to supply hoists could be considered a violation of Labor Law § 240 (1). Plaintiff in that case sustained injuries while employed as a sheet metal worker at a construction site. He and three other persons were instructed by their foreman to manually transport two hydraulic jacks over about 60 feet of dirt surface and up a flight of stairs. According to the court in Gregory v General Elec. Co. (supra), section 240 (1) does not merely safeguard workers from the risks of falls or falling objects. Moreover, the Third Department, in Region v Woodward Constr. (140 AD2d 758), found that the provisions of Labor Law § 240 (1) were applicable where the decedent, while assisting another person in moving steel building materials known as purlins, was electrocuted when a cable attached to the crane boom which was being utilized to lift the purlins and move them to another location came into contact with the electric wires overhead. At the time of the accident, decedent was attempting to attach a hook suspended from the cable to the stack of purlins. In the opinion of the court therein, "[i]nasmuch as the crane was being used as a hoist to lift stacks of purlins * * * [t]he placement and operation of the crane under the electric lines without prior safety precautions clearly violated” the section in question (supra, at 760).

The Fourth Department, in contrast, has consistently determined that Labor Law § 240 (1) "is addressed to situations in which a worker is exposed to the risk of falling from an elevated work site or being hit by an object falling from an elevated work site” (Siragusa v State of New York, 117 AD2d 986, 987, lv denied 68 NY2d 602). Consequently, the court held that the statute was inapplicable where an employee who was standing on the platform of a tunnel-boring machine 12 inches above the floor of the tunnel was injured after being struck by rock falling from the ceiling of a sewer tunnel which was in the process of being constructed (Fox v Jenny Eng’g Corp., 122 AD2d 532, affd on other grounds 70 NY2d 761). Similarly, the Fourth Department declined to invoke section 240 (1) in a situation in which a worker died from injuries suffered when, during tree cutting and removal operations, he was struck by a tree trunk suspended from a crane and wire rope since this provision "has historically been employed to protect the safety of employees working on scaffolding and other elevated structures” (Nagel v Metzger, 103 AD2d 1, 10). In DaBolt v Bethlehem Steel Corp. (92 AD2d 70, appeal dismissed 60 NY2d 701), plaintiff was injured when a steel frame from a transfer table on a structure known as a separator, which was 30 feet high and 200 feet long, was prematurely put into action, causing the steel frame to crush his left hand. The court in that matter ruled that "inasmuch as plaintiffs injury did not result from a fall, subdivision 1 of section 240 is inapplicable to plaintiffs claim” (supra, at 75).

The Second Department, in Mack v Altmans Stage Light. Co. (98 AD2d 468, 473), in referring to section 240 (1) of the Labor Law, noted in dicta that "[a]s the Appellate Division, Fourth Department, recently observed, e[t]hat section 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, app dsmd in part 60 NY2d 774)”. Yet, in a subsequent case, the Second Department, notwithstanding its statement in Mack v Altmans Stage Light. Co. (supra), decided that a down line, serving to transport equipment from the surface to the ocean floor where plaintiff, a commercial diver, was injured while participating in a project to construct an underwater outflow pipe, was a device within the meaning of Labor Law § 240 (Kahn v Gates Constr. Corp., 103 AD2d 438). More recently, in a situation involving an injury suffered by a dockworker as he was unloading steel plates at a construction site, the Second Department held that plaintiff had raised an issue under Labor Law § 240 (1) concerning the adequacy of the means provided to unload the cargo of steel (Gjertsen v Mawson & Mawson, 135 AD2d 779).

The confusion relating to the proper construction of subdivision (1) of section 240 of the Labor Law no doubt arises from the fact that this provision does not expressly impose liability where an injury occurs to employees operating at an elevated height but merely requires that contractors and owners and their agents shall, in the specified circumstances, "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”. However, section 240, commonly known as the Scaffold Act, enumerates devices which all relate to work performed at elevated heights. Labor Law § 241, on the other hand, imposes a general obligation upon contractors and owners to provide a safe and reasonable place of employment where construction, excavation and demolition work is being performed.

In our judgment, Labor Law § 240 (1) must be directed at work which is especially hazardous because it concerns heights. Absolute liability is imposed by section 240 (1) upon contractors and owners in order to compel them to take special care for the safety of workers laboring under the ultrahazardous conditions which heights entail. Workers exposed to the usual dangers of construction are protected by Labor Law § 241. To interpret section 240 (1) in the manner urged by the dissent and adopted by the Third Department would, in effect, cause the protections provided by section 240 of the Labor Law to overlap or duplicate those accorded by Labor Law § 241. Moreover, it would wreak havoc upon the construction and insurance industries by imposing absolute liability for a myriad of common everyday work activities not involving heights, thus making owners and contractors insurers for injured workers. For these reasons, the approach which the Fourth Department has taken seems to be preferable; that is, section 240 should be invoked where an employee’s injury is somehow related to work performed at heights whereas section 241 is applicable to ordinary construction work. Therefore, the order being appealed herein should be affirmed. Concur—Carro, J. P., Milonas and Wallach, JJ.