Thomas Garbett commenced a personal injury action against Wappingers Central School District (“Wappingers”) to recover damages after a cast-iron section of a boiler on its property fell and crushed his foot. Wappingers commenced a third-party action against the plaintiff’s employer, Siteworks Services NY Corp. (“Siteworks”), which, at the time of the accident, was servicing the boiler pursuant to its contract with Wappingers. The Supreme Court subsequently struck Siteworks’ third-party answer as a sanction for its failure to comply with discovery demands and orders.
Plaintiff testified at his deposition that, at the time of the accident, Siteworks employees were disassembling the subject boiler section-by-section to fix a leak. However, the head custodian at the school where the plaintiff’s injury occurred testified at his deposition that the boiler was disassembled every summer for routine cleaning and refurbishing. The head custodian was also not aware of any problem with the boiler in need of repair during the time that the plaintiff was injured.
The plaintiff moved for summary judgment on the issue of Wappingers’ liability under Labor Law § 240(1), and Wappingers cross-moved for summary judgment dismissing the complaint. Wappingers also moved for summary judgment on the issue of common-law indemnification against Siteworks, arguing, among other things, that since Siteworks’ answer was stricken, it admitted that the injuries alleged by the plaintiff constituted a grave injury as defined in Workers’ Compensation Law § 11.
Supreme Court, among other things, denied the plaintiff’s motion and Wappingers’ cross motion on ground that triable issues of fact remained with respect to the applicability of Labor Law § 240(1) and causation, and granted that branch of Wappingers’ motion which was for summary judgment on the issue of common-law indemnification.
In Garbett v. Wappingers Central School District, 160 A.D.3d 812 (2d Dep’t 2018), the Supreme Court found, and the Appellate Division agreed, that the record was unclear concerning the degree to which the boiler sections were “components that require replacement in the normal course of wear and tear” (Esposito v New York City Indus. Dev. Agency, 1 N.Y.3d at 528), and therefore properly determined that triable issues of fact existed with respect to whether the plaintiff’s activity was repair work that would be covered under Labor Law § 240(1), or just routine maintenance.
The Supreme Court also properly concluded that triable issues of fact existed with respect to proximate cause. At the time of the accident, Siteworks employees were disassembling the boiler and moving each heavy section to the ground for the plaintiff to inspect. Testimony indicated that the Siteworks employees did not follow their typical procedure and opted to wedge a pipe against the section that eventually fell. Plaintiff also testified that boiler sections can remain upright without assistance after being detached from each other, and that he, an experienced boilermaker, was satisfied with the apparent stability of the section before it fell. Wappingers also submitted evidence supporting the conclusion that boiler sections do not require securing when they are detached from each other. Thus, triable issues of fact existed as to whether a safety device was required for the undertaking.
Labor Law § 240(1) protects workers from elevation-related hazards while they are involved in certain enumerated work activities. The statute applies when an employee is engaged in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure, as well as acts ancillary to those activities Labor Law § 240(1) does not, however apply to workers engaged in routine maintenance (Fox v H & M Hennes & Mauritz, L.P., 83 A.D.3d 889).
Labor Law § 240(1) imposes absolute liability on building owners and contractors whose failure to provide proper protection to workers employed on a construction site proximately causes injury to a worker. The decisive question is whether plaintiff’s injuries were the direct consequence of a failure to provide protection against a risk arising from a physically significant elevation differential and includes injuries caused by falling objects. Liability will attach where the plaintiff demonstrates that, at the time the object fell, it required securing for the purposes of the undertaking.
With respect to the third-party action, Siteworks’ third-party answer had been stricken for failing to provide discovery, so it admitted all traversable allegations in the complaint, including the basic allegations of liability and that the plaintiff sustained a grave injury, which allegation was necessary for the maintenance of the third-party action, under Workers’ Compensation Law § 11. Accordingly, the Appellate Division upheld summary judgment in favor of Wappingers on the issue of common-law indemnification. (The decision also upheld the denial of Siteworks’ Motion to renew, finding that Siteworks failed to offer new facts that would change the prior determination). And found the sole issue remaining in the third-party action to be the extent of Wappingers’ damages, if any. While there are no specific facts as to the default, this decision nevertheless serves as a cautionary reminder that that careful attention must be paid to discovery obligations.
Thanks to Vincent Terrasi for his contribution to this post. Please write to Tony Pinto for more information.