Dilluvio v. City of New York , 704 N.Y.S.2d 550 ( 2000 )

OPINION OF THE COURT

Friedman, J.

The central question presented by this appeal is whether plaintiff,^* who fell from the back of a pickup truck while he was being driven to a location where he would place cones on a roadway to block traffic, is entitled to the protection of Labor Law § 240 (1). As plaintiff was not subject to any exceptionally dangerous condition related to being on an elevated work site, he was not exposed to the type of risks covered by the Labor Law. We also conclude that the work plaintiff was doing did not constitute work on a “structure” as contemplated by the statute. Accordingly, plaintiffs Labor Law § 240 (1) claim was properly dismissed.

Beaver Concrete Construction Co., Inc. (Beaver) was engaged in a road construction project on the Hutchinson River Parkway. The project involved removing the concrete surface of a portion of the parkway that passed over an Amtrak train line. Removal of the concrete was to be followed by an inspection of the steel support beams after which the roadway was to be repaved with concrete. The project also called for removal and replacement of the asphalt roadway for an area extending 120 feet on either side of the overpass. In order to safely conduct the operation, the right lane of the parkway had to be closed. The determination as to how to conduct the lane closure was made jointly by plaintiff, as the foreman of the project, and a superintendent.

The first step in the lane closure process was to place a flashing arrow in the roadway directing cars to move to the left. The next step was for plaintiff and a fellow employee named George to place barrels on the ground every 20 or 25 feet beginning from the flashing arrow. Plaintiff and George, while proceeding on foot, placed the barrels for a distance of as much as 150 feet until they reached a boom truck that was positioned further down the road. They then walked back to the flashing arrow where a pickup truck (pickup) was stationed.

The last step in the lane-closing process was for cones to be placed every 20 feet for a distance of 500 feet beyond the boom truck. The pickup was to be utilized in placing the cones. In this part of the operation, plaintiff was to sit on the open tailgate of the pickup, which was only three feet above the ground, and pass the cones to George, who would walk behind the pickup and place the cones on the pavement. Lorenzo Rizzo, the owner of Beaver, was to drive the truck.

In order to return to the boom truck, both plaintiff and George climbed into the back of the pickup for Rizzo to drive them just past the boom truck where they would commence placing the cones. Rizzo, in driving to the boom truck, pulled into the left lane. As the pickup began to move, it lurched forward causing plaintiff to fall from the tailgate of the pickup onto the pavement and injure himself. Thus, plaintiff never arrived at the location where he was to place the cones.

Plaintiff commenced this action alleging that defendant was liable pursuant to Labor Law § 240 (1). This statute provides in relevant part that “[a] 11 contractors and owners and their agents * * * in the erection, demolition, repairing, [or] altering * * * 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.”

It is plaintiffs contention that the work he was performing was within the scope of the statute because he was working on an “elevated platform,” i.e., the back of a pickup, and that defendant, as the owner of the parkway where he was working, failed to provide him with any safety devices to protect him from fálling from that platform. Moreover, it is contended that the work he was doing falls within the purview of the statute because it was incidental to the repair of a “structure,” namely, an overpass, alternatively referred to as a bridge. We reject both contentions.

Labor Law § 240 (1) was enacted “in recognition of the exceptionally dangerous conditions posed by elevation differentials at work sites * * * for workers laboring under unique gravity-related hazards” (Misseritti v Mark IV Constr. Co., 86 NY2d 487, 491). “The extraordinary protections of [the statute] extend only to a narrow class of special hazards, and do ‘not encompass any and all perils that may be connected in some tangential way with the effects of gravity’ ” (Nieves v Five Boro Air Conditioning & Refrig. Corp., 93 NY2d 914, 915-916, quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [emphasis in original]). In determining whether the statute applies, the question is whether there is “a significant risk inherent in the particular task because of the relative elevation at which the task must be performed or at which materials or loads must be positioned or secured” (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514).

Here, it can hardly be debated that there was no “exceptionally dangerous condition” or “significant risk” posed by the mere elevation differential between the tailgate of the pickup upon which plaintiff was seated and the ground, which, as noted, was only three feet (cf., Tillman v Triou’s Custom Homes, 253 AD2d 254; DePuy v Sibley, Lindsay & Curr Co., 225 AD2d 1069; Gaul v Motorola, Inc., 216 AD2d 879; Colopy v William C. McCombs, Inc., 203 AD2d 920; Cipolla v Flickinger Co., 172 AD2d 1064). In fact, since it is readily inferable from the record that plaintiffs legs were dangling from the tailgate, it would appear that the bottom of his feet were barely off the ground. In regard to whether the elevation posed a significant risk, Tillman v Triou’s Custom Homes (supra) is particularly instructive.

In Tillman, the plaintiff was unloading cement blocks from the back of a flatbed truck. As he was lowering a unit of blocks with a boom, the truck tipped, and the plaintiff fell 4V2 feet from the truck to the ground. The Court held that there was no “exceptionally dangerous condition posed by the elevation differential between the flatbed portion of the truck and the ground, and there was no significant risk inherent in the particular task plaintiff was performing because of the relative elevation at which he was performing that task [citations omitted]” (supra, at 257).

When the facts of the instant case, which involved an elevation of only three feet or less, are contrasted with Tillman, an even more compelling basis is presented for concluding that plaintiff was not exposed to any exceptionally dangerous condition by virtue of height (see also, DePuy v Sibley, Lindsay & Curr Co., supra [plaintiff fell approximately three feet from bed of truck while unloading cabinet]; Gaul v Motorola, Inc., supra [plaintiff tripped and fell from back of trailer]; Colopy v William C. McCombs, Inc., supra [plaintiff fell from truck when struck by boom]; Cipolla v Flickinger Co., supra [plaintiff injured when he fell from truck’s running board about 1½ feet from the ground]).

Further analysis of the risk plaintiff faced shows that, while he was seated on the back of the pickup, he was not exposed to any particular danger referable to height but rather to motion. Danger presented itself only when the pickup began moving. Hence, the “significant risk” in this case did not arise from a height-related danger per se, but a danger related to forward motion irrespective of height. This dichotomy in the source of the danger is of pivotal importance in evaluating a case of this type. Dangers that are premised on height invoke section 240 (1), while those that are normally attendant to riding in a moving vehicle do not (cf., Dankulich v Felchar Mfg. Corp., 247 AD2d 660; Salzler v New York Tel. Co., 192 AD2d 1104). The distinction is particularly telling here since plaintiff and his coworker were both seated in the back of the pickup simply being transported the short distance to the area where they would begin placing cones. Hence, at the time of the accident, the pickup was not even being used as an elevated work platform, but merely as a mode of transportation.

It is of course obvious that a risk of injury may be increased when elevation is accompanied by velocity or other combinations of danger. However, for section 240 (1) to apply there must be some risk that, in the first instance, emanates from the height at which the work is performed. The necessity of identifying the elevation-related risk where there are multiple sources of danger is illustrated by Gordon v Eastern Ry. Supply (82 NY2d 555).

In Gordon (supra), the plaintiff was injured while cleaning the exterior of a railroad car. The accident happened when the plaintiff, on the fourth or fifth step of a ladder, activated the trigger of a sandblaster he was using. As he did so, the ladder tipped, causing him to fall to the ground and lose control of the sandblaster, which continued to spray him with sand after he hit the ground. It was the defendant’s contention that the plaintiff failed to state a section 240 (1) cause of action because he was not injured from the fall to the ground or from a failure to provide a safe ladder, but was injured as a result of a defective sandblaster (supra, at 560, 562).

The Court, in concluding that the plaintiff’s accident was within the purview of section 240 (1), stated: “[P]laintiff was working on a ladder and thus was subject to an ‘elevation-related risk’. The ladder did not prevent plaintiff from falling; thus the ‘core’ objective of section 240 (1) was not met.” (Supra, at 561.) Thus, Gordon makes clear that the risk to which the plaintiff there was exposed was, in the first instance, height-related because he was working on a ladder, a device specifically within the contemplation of section 240 (1), irrespective of his use of a sandblaster.

In contrast, to accept the reasoning urged by the dissent, that the risk plaintiff faced while being transported on the back of the pickup was elevation related, would result in an anomalous analytical formulation where height, and its consequent danger, is a function of velocity. Under this formulation, an activity that does not expose a worker to any danger vis-a-vis height, suddenly transmutes itself into such a danger, as speed enters the equation. While such a formulation may have a certain attraction in the relativistic world of Einsteinian physics, it is not helpful in determining the dangers that the Legislature sought to protect against with its enactment of section 240 (1).

The dissent nevertheless appears to adopt just such a formulation, pointing to Curley v Gateway Communications (250 AD2d 888 [3d Dept]), Monroe v Bardin (249 AD2d 650 [3d Dept]), Orr v Christa Constr. (206 AD2d 881 [4th Dept]), and Cox v LaBarge Bros. Co. ([appeal No. 2] 154 AD2d 947, lv dismissed 75 NY2d 808 [4th Dept]). These cases are, however, inapposite. Contrary to the matter at bar, it appears that the workers in each of these cases were exposed to a significant danger by virtue of the height at which they were working, irrespective of any danger presented by velocity (Curley v Gateway Communications, supra [plaintiff standing on top of pipe that was on flatbed truck]; Monroe v Bardin, supra [plaintiff injured when he fell 12 feet from bed of truck]; Orr v Christa Constr., supra [fall from flatbed trailer]; Cox v LaBarge Bros. Co., supra [fall from top tier of gas pipes that were stacked upon flatbed truck]).

With regard to the dissent’s reliance upon cases such as Binetti v MK West St. Co. (239 AD2d 214 [fall from bottom rung of ladder]) and Casabianca v Port Auth. (237 AD2d 112 [fall from scaffold two feet off the ground]), it may be true that falls from low heights, as in Binetti and Casabianca, have been found to be within the purview of section 240 (1). At the same time, falls from greater heights have been found to be outside the scope of the statute (see, e.g., Tillman v Triou’s Custom Homes, supra; DePuy v Sibley, Lindsay & Curr Co., supra). The varying decisions, however, are perfectly reconcilable when cognizance is given to one observation: whether a danger is within the contemplation of Labor Law § 240 (1) cannot be measured exclusively in terms of inches, but must be measured in terms of legislative intent. Here, there is simply no indication that the Legislature enacted section 240 (1) to protect a worker being driven in a pickup to the location where he will be performing his work.

Putting aside the foregoing analysis, there is a further reason why Labor Law § 240 (1) is not implicated. Section 240 (1), by its terms, requires that the enumerated activities, i.e., repair work, be performed with reference to a “building or structure” (see, Lombardi v Stout, 80 NY2d 290, 296). The work plaintiff was doing did not constitute work on a structure within the meaning of the statute.

Stripping the construction project to its essentials, what Beaver was doing here was repaving a portion of the Hutchinson River Parkway. Repaving a parkway at grade does not constitute work on a structure for purposes of Labor Law § 240 (1) (Spears v State of New York, 266 AD2d 898; Matter of Dillon v State of New York, 201 AD2d 793; Siragusa v State of New York, 117 AD2d 986, lv denied 68 NY2d 602). Seeking to avoid application of this principle, plaintiff contends that, because the roadway included an overpass or bridge, this road repaving operation was in reality a bridge renovation project, and that such a project constitutes work on a structure for purposes of the statute.

We recognize that generally work on an overpass or bridge would be regarded as work on a structure under the statute (see, Lombardi v Stout, supra; Dougherty v State of New York, 113 AD2d 983, 985). However, whether a worker is repaving the roadway of an overpass or repaving a roadway on solid ground, the nature of the work is the same. In either event, the work is performed at grade and there is no necessity for a scaffold, ladder, or any other elevation-related equipment. Moreover, when considered in the context of plaintiffs fall from the tailgate, the risks that a worker, such as plaintiff, is exposed to while repaving a roadway are identical regardless of whether part of the roadway consists of an overpass.

At the end, there is no significance to the fact that some of the work was done on an overpass. In this connection, it is of interest to note that on the evening of the subject incident, the lane was being closed so that plaintiff and his co-workers could remove the chopped-up concrete of the sidewalk adjacent to the roadway. Hence, since the work plaintiff was performing was neither upon a bridge qua bridge, nor involved the dangers one normally associates with bridge work, it cannot be said that he was renovating a structure so as to impose section 240 (1) liability. We note that, although there are references in the construction contract to the possible replacement of steel beams on the bridge, the record is barren of any indication that any beams were ever actually replaced. Hence, however viewed, plaintiff was engaged only in road work.

In sum, Labor Law § 240 (1) has no applicability to what in reality was a vehicular accident on a road repaving project at grade. Nor does the fact that part of the roadway includes an overpass invoke the statute. To reach a contrary conclusion would mean that any accident occurring on a roadway repaving project involving an overpass would ultimately be transfigured into a Labor Law § 240 (1) case. There is no indication that the Legislature ever intended such a result.

Accordingly, the order of the Supreme Court, Bronx County (Janice Bowman, J.), entered June 4, 1998, which denied plaintiffs’ motion for partial summary judgment on their Labor Law § 240 (1) claim and granted defendant City of New York’s cross motion to dismiss this claim, should be affirmed, without costs.

* All references to plaintiff are to Francisco Dilluvio.