“Sudden-Moving-Ladder Syndrome” Sets Up Mixed Bag Decision from the First Department
This decision from the First Department is the equivalent of an appetizer sampler at many popular restaurant chains. We’re going on a journey into Labor Law §§ 240(1) and 200, common-law negligence, cross-claims based in contractual indemnification, and an Espinal analysis.
A bit of table setting before we get to the substance of this decision:
- Defendant Electrical Contractor appealed from an order of Supreme Court, Bronx County that granted plaintiff’s motion for summary judgment as to his Labor Law § 240(1) claim against the defendant owner and general contractor.
- That order of the Supreme Court, Bronx County also denied defendant Electrical Contractor’s motion for summary judgment to dismiss plaintiff’s Labor Law § 200 and common-law negligence claims.
- That same order also granted the portions of defendant owner’s and general contractor’s motion for summary judgment regarding their cross-claims for contractual indemnification against defendant Electrical Contractor.
Undisputed Facts of the Case
In Dibrino, et al. v. Rockefeller Center North, Inc., 2024 NY Slip Op 03558, plaintiff alleged that he was injured in a construction site accident during which he fell from a ladder and was injured. In its decision, the First Department noted several facts that are undisputed:
- At the time of the incident, plaintiff was an employee of a non-party contractor also performing work at the subject jobsite.
- On the morning of the accident plaintiff used a six-foot A-frame ladder and a rolling Baker scaffold to take measurements in preparation for installing a special ceiling feature.
- At some point after completing his initial measurements, plaintiff was asked to return to the area he had previously measured and take additional measurements.
- Rather than using the ladder and Baker scaffold he had previously used, he instead used a ladder that was already set up in the area.
- Plaintiff climbed up and down the ladder several times during this subsequent measuring process without issue.
- During one of his ascents, he began measuring above his head when “the ladder moved, and plaintiff lost his balance.” Plaintiff attempted to jump from the ladder to avoid injury, but his foot became stuck in one of the rungs, causing him to fall and sustain injuries.
- At the time of the subject incident, plaintiff did not know who owned the ladder. After the accident he learned that the ladder belonged to defendant Electrical Subcontractor, who did not supply the ladder to plaintiff and did not give plaintiff permission to use the ladder involved in the accident.
First Department Review
Plaintiff’s Labor Law § 240(1) Claim
In its decision, the Appellate Division, First Department held that the Supreme Court, Bronx County properly granted plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim against defendants. Plaintiff met his prima facie burden by establishing that defendants failed to “properly secure the ladder against movement or slippage and to ensure that it remained steady and erect” while plaintiff was on it.
In opposition to plaintiff’s motion, defendant Electrical Contractor relied on accident reports which contained statements by plaintiff’s foreman indicating that plaintiff fell due to his own “overreaching” while on the ladder and failure to maintain three points of contact with the subject ladder. The First Department noted, however, that these accident reports were not created by anyone with personal knowledge of the circumstances surrounding the accident and, further, the statement in the report from plaintiff’s foreman admitted he “wasn’t looking directly at” plaintiff when the accident occurred and only saw the ladder moving in his peripheral vision. Wrapping up its review on the § 240(1) claim, the First Department noted that even if plaintiff fell because he lost his footing on the ladder, it does not defeat plaintiff’s § 240(1) claim.
Plaintiff’s Labor Law § 200 Claim
As to the Labor Law § 200 claim, the First Department held that the lower Court should have granted the Electrical Contractor’s motion for summary judgment to dismiss the § 200 claim because the Electrical Contractor was not an “owner, general contractor, or a statutory agent of an owner or general contractor” the § 200 claim cannot stand.
Plaintiff’s Common-Law Negligence Claim
Normally when we get these kinds of decisions from the Appellate Divisions, the § 200 and common-law negligence claims are handled in the same sentence because usually they run a very similar analysis. We’re going to tread very gently here because there is an expansive Espinal analysis involved in this decision, within which the majority and the dissent are working out some issues.
Briefly, the Espinal analysis is invoked when the Court has to determine if a duty in the negligence context can be extended to plaintiff out of a contractual relationship between two other parties. That analysis is accomplished by looking at, inter alia, if one of the parties “launched a force or instrument of harm”. The opinion goes into this portion of the Espinal analysis extensively, noting several disputes with the dissent. In this analysis the First Department clarifies what “foreseeability” is in this context:
The principle is well settled that a finding of negligence requires the breach of a duty because, in the absence of a duty, there is no breach and, without a breach, there is no liability (see Pulka v Edelman, 40 NY2d 781, 782 [1976]). That is, if a defendant owes no duty to a plaintiff, “there can be no liability in damages, however careless the conduct or foreseeable the harm” (Lauer v City of New York, 95 NY2d 95, 100 [2000], citing Pulka, 40 NY2d at 785). As to how foreseeability of harm interconnects with the imposition of a duty of care[*4], this Court restated the principle in On v BKO Express LLC (148 AD3d 50 [1st Dept 2017]). Citing Pulka (40 NY2d 781), this Court explained that foreseeability should not be confused with duty and may not be relied on to create a duty (id. at 55). Instead, this Court held that the principle of foreseeability is applicable to determine the scope of the duty only after it has been found to exist, and that if there is no duty, then the principle is inapplicable and the foreseeability of the accident is irrelevant (id.).
Essentially, the First Department is saying we don’t get into a “foreseeability” analysis until a determination has been made that there is a duty.
Defendant Owner and General Contractor’s Cross-Claims Against Electrical Contractor
As we discussed supra, defendant Electrical Contractor had also attempted in its summary judgment motion to dismiss the contractual indemnity-based cross-claims from the defendant owner and general contractor. In its analysis, the First Department focused on the language of the contract, which contained several “scope-of-work” triggers, contractually obligating Electrical Contractor to indemnify the owner and general contractor for accidents arising out of the scope of its work. As there was no evidence that plaintiff was injured as a result of Electrical Contractor’s performance of the work, the scope-of-work provision was not triggered and the cross-claims for indemnification should have been dismissed.
The Dibrino decision can be found here.
For additional information, contact Philip D. Priore, Esq. and/or Michael J. Shields, Esq.
This article was prepared by McCormick & Priore, P.C. to provide information on recent legal developments of interest to our readers. This publication is in no way intended to provide legal advice or to create an attorney-client relationship. All Rights Reserved. This article may not be reprinted without the express written permission of McCormick & Priore, P.C.
