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Hill v. City of New York, 2016 NY Slip Op 05019 (1st Dept., 6-23-2016), Worker Falls from Ladder

In Hill v. City of New York, 2016 NY Slip Op 05019 (1st Dept., 6-23-2016), Mr. Hill was employed as an HVAC A Mechanic installing refrigeration units, and had worked in this area with his employer Hunts Point Cooperative Market for at least 19 years prior to the date of the accident. The accident happened on August 14, 2012, while he was working at the site located at the Hunts Point Market in the Bronx, New York. On that day, he was installing pipes for an overhead refrigerator unit for one of the tenants in possession at the site.

Mr. Hill gathered all his tools from another work site, which included wrenches, a threader and three A-frame ladders that were selected by his co-worker. Mr. Hill opened and set up one of the A-frame ladder on the ground before he started his work. He locked the ladder’s spreaders. He made sure to steady the ladder on the ground before he ascended. Mr. Hill typically used forklifts and scissor lifts during the actual mounting of the refrigeration unit in the ceiling. On the day of the accident, he used the ladders at the site to install the new units’ pipes. Mr. Hill did not have any harness equipment.

After ensuring that the ladder was steady, Mr. Hill ascended to the sixth rung and started to tighten pipe fittings. His co-worker did not steady the ladder for him, and eventually left the room to retrieve a pipe fitting. As Mr. Hill continued to work, “the ladder wobbled. I lost my balance. The wrench slipped and I fell backward.” The pipe wrench did not slip before the wobbling started. After falling to the ground, Mr. Hill saw that the ladder was missing two of its four rubber foot pads, a condition he had not previously noticed, which he assumed caused it to wobble.

Another worker at the site, after viewing video surveillance of Mr. Hill’s accident, corroborated his claim that the ladder wobbled causing Mr. Hill to fall to the ground. Based on the video footage, the worker described the accident as follows: “Standing on the ladder, what I saw was the – from the distance, from waist down I saw the ladder go right and then come left and that’s when I saw him. As if he fell from that height and bounced on the ground, that’s what I remember seeing…He wobbled this way to the right; it went to the right which is correct and then went to the left, that’s when it went too far and he tumbled.” The worker was unable to ascertain exactly what caused the ladder to move. Mr. Hill instantly fell to the floor on his back after the ladder wobbled. The tenant in possession had not provided Mr. Hill with any safety devices.

At the trial court level, plaintiff moved affirmatively for partial summary judgment on his Labor Law §240(1) claim against defendants alleging that defendants failed to provide him with required safety equipment to prevent him from falling; and further, failed to assure the ladder was properly placed or situated at the work site. The trial court denied plaintiff’s motion writing: “….The Court finds that Plaintiff failed to establish entitlement to summary judgment….on the grounds that there exist issues of fact and credibility, including but not limited to, which ladder plaintiff utilized on the day of the accident, whether said ladder was missing rubber footing, whether the missing feet, if at all, was a defect and whether said defect was the proximate cause of plaintiff’s accident.”

The plaintiff appealed the decision, and the Appellate Division, First Department reversed opining: “Where a ladder is offered as a work-site safety device, it must be sufficient to provide proper protection. It is well settled that [the] failure to properly secure a ladder, to ensure that it remain[s] steady and erect while being used, constitutes a violation of Labor Law § 240(1)” (Montalvo v J. Petrocelli Constr., Inc., 8 AD3d 173 [1st Dept., 2004]). At both his deposition and General Municipal Law § 50-h hearing, plaintiff consistently testified that he fell from the sixth rung of an eight-foot ladder after the ladder unexpectedly wobbled. Conde corroborated plaintiff’s account by testifying, “I saw the ladder go right and then come left and that’s when I saw [plaintiff fall] . . . He wobbled this way to the right; [the ladder] went to the right . . . and then to the left, that’s when it went too far and [plaintiff] tumbled.” Plaintiff’s affidavit in support of his motion for summary judgment did not contradict these earlier statements. In the affidavit plaintiff averred that, as he was working on the piping atop the ladder, he “lost [his] balance and fell off the ladder to the ground below.” The fact that he did not mention the ladder wobbling is of no moment. Taken together, all of his and Conde’s statements, including Conde’s account of the videotape footage, which he viewed twice, support plaintiff’s position that he fell because the ladder wobbled. Plaintiff did not offer a different reason for falling. Nor did the unsigned Workers’ Compensation Form C-2 report prepared by plaintiff’s employer, which stated that plaintiff “was tightening a plumbing fitting when the wrench he was using slipped, he lost his balance and fell off of an 8 ft ladder,” contradict plaintiff’s statement that the ladder wobbled, causing him to drop his wrench.

The Appellate Division, First Department opined: “In any event, it is irrelevant whether he fell because the ladder wobbled or because he dropped his wrench. “[I]t is clear that the ladder did not prevent plaintiff from falling and there is no dispute that no safety devices, other than the ladder, were provided” (Yu Xiu Deng v A.J. Contr. Co., 255, AD2d 202, 202-203 [1st Dept., 1998]. Defendants’ argument that plaintiff was required to demonstrate that the ladder was defective in order to satisfy his burden as to the Labor Law § 240(1) claim is without merit. “It is sufficient for purposes of liability under section 240(1) that adequate safety devices to prevent the ladder from slipping or to protect plaintiff from falling were absent” (Orellano v 29 E. 37th St. Realty Corp., 292 AD2d 289, 291 [1st Dept., 2002]; see also Estrella v GIT Indust., Inc., 105 AD3d 555 [1st Dept., 2013]; McCarthy v Turner Constr., Inc., 52 AD3d 333 [1st Dept., 2008]). Inasmuch as there is no evidence that plaintiff was a recalcitrant worker or that he was not engaged in covered activity, it is sufficient for his Labor Law § 240(1) claim that his injuries were the direct consequence of using a ladder that did not provide adequate protection (Runner v New York Stock Exch., 13 NY3d at 603; see also Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 288-289 [2003], citing Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001] [“Not every worker who falls at a construction site, and not every object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240(1). Rather, liability is contingent upon the existence of a hazard contemplated in section 240(1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein”] [emphasis added]).”