Practice point: Plaintiff is a glazier whose employer directed him to replace cracked glass
panels in the skylight of defendant church's steeple. To access the
steeple, plaintiff and his coworkers placed an extension
ladder belonging to their employer on top of the roof of the church and
leaned it up against the steeple. Plaintiff had used the ladder on three
prior occasions and found it to be in good condition. As plaintiff
climbed the ladder, the bottom kicked out, moving away from the steeple
wall. Both the ladder and plaintiff fell approximately 20 feet straight
to the roof below, causing plaintiff to sustain injuries.
Plaintiff commenced this action alleging, among other things, that defendant
violated Labor Law § 240(1) by failing to provide him with an adequate
ladder and by failing to provide any safety harnesses or belts that
would have prevented his fall.
The question is whether plaintiff was
involved in repair or maintenance work. For statutory purposes, routine
maintenance work does not rise to
the level of an enumerated term such as repairing or altering. In distinguishing between what constitutes
repair as opposed to routine maintenance, courts will consider such
factors as whether the work in question was occasioned by an isolated
event as opposed to a recurring condition, whether the object being replaced was a worn-out
component in something that was otherwise operable, and whether the device or component that was being
fixed or replaced was intended to have a limited life span or to
require periodic adjustment or replacement.
Here, plaintiff described the panes as being constructed of "heavy plate
glass" with wire running through them and stated that they "do
not crack or wear out over time." Plaintiff showed, without
contradiction, that these panes were not being replaced as a result of
normal wear and tear, as they were not expected to be regularly
replaced. In fact, defendant presented no evidence
that the panes ever had to be replaced or repaired from the time the
steeple had been built. As an experienced glazier with over 30 years of
experience, plaintiff was more than competent to state that the
replacement of these panes constituted repair work, and was not routine
maintenance.
The Appellate Division reversed and found that plaintiff had made out
a prima facie case as to liability, and defendant failed to raise a
question of fact.
Student note: A plaintiff moving for partial summary judgment must establish that §
240(1) was violated and that the violation was a proximate cause of the injuries. The plaintiff need not demonstrate that the safety devicewas defective or failed to comply with applicable safety
regulations, but only that it proved inadequate to shield plaintiff from harm directly flowing from the application of the force of gravity
to an object or person. The inexplicable shifting of an unsecured ladder may alone
support a § 240(1) claim if a worker is caused to fall due to such
shifting. A worker's prima facie entitlement to partial
summary judgment on his or her § 240(1) claim may be established by
proof that the ladder provided collapsed under the worker while the worker was engaged in an enumerated task.
Case: Soriano v. St. Mary's Indian Orthodox Church of Rockland, Inc., NY Slip Op 04419 (2d Dept. 2014)
Here is the decision.
Monday's issue: No recovery from a fall on a slippery sidewalk.
