Of Burdens and Hatch Covers

In this edition of his Construction Accident Litigation column, Brian Shoot discusses two unrelated issues. Each figured in rulings rendered in, respectively, November and December of 2022. One issue arises when a plaintiff moves for summary judgment under Labor Law §240. The other issue, which arises far less frequently, is whether a falling hatch cover (or similar object) may qualify as a “falling object” within the scope of Labor Law §240.

I today discuss two unrelated issues. Each figured in rulings rendered in, respectively, November and December of 2022.

One issue arises when a plaintiff moves for summary judgment under Labor Law §240. Of course, on such a motion, the plaintiff must prove there was a statutory breach, and also that the breach was a proximate cause of the subject accident. The issue is whether the plaintiff must additionally anticipate and disprove that he or she was the “sole proximate cause” of the statutory violation. Until recently, the answer seemed fairly clear, but the picture is now muddled by some Fourth Department pronouncements.

The other issue, which arises far less frequently, is whether a falling hatch cover (or similar object) may qualify as a “falling object” within the scope of Labor Law §240.

The ‘Sole Proximate Cause’ Defense, and the Burden of Proof on a Plaintiff’s Motion for Summary Judgment

Consider the following hypothetical. Plaintiff, who fell from a 10-foot high scaffold which lacked any railing, moves for summary judgment under Labor Law §240 based upon the proof that there was no fall protection and such was plainly a cause of his or her fall.

Alternatively, plaintiff, who fell from a ladder that was unsecured and thereby wobbled, moves for summary judgment on the asserted ground that the failure to secure the ladder was clearly a cause of his or her fall.

Or, a third scenario: Plaintiff, who was struck by a steel beam that fell while being transported from point A to point B, moves for summary judgment on the ground that the subject event of itself established that “proper protection” was not provided with respect to an elevation-related risk within the ambit of the statute.

In any of those three settings, must the plaintiff who is seeking summary judgment go further and affirmatively establish that he or she was not the “sole proximate cause” of (a) the absence of fall protection on the scaffold, (b) the circumstance that the ladder was not secured, or (c) the manner in which the steel beam was rigged or hoisted? Or is it the defendant’s burden to affirmatively raise a triable issue concerning any of those “defense” or else suffer summary judgment?

Now, well settled law holds that the motion for summary judgment should be denied if the movant’s own proof raises a triable issue of fact concerning the defendant’s alleged liability. Hull v. City of N. Tonawanda, 6 A.D.3d 1142, 1142-43 (4th Dept. 2004); Ackler v. Odessa Montour Cent. School Dist., 243 A.D.2d 902, 903 (3d Dept. 1997). For this reason, the plaintiff will not be entitled to summary judgment if plaintiff’s own proof (a) establishes that his or her own negligence was the sole cause of the subject injury, or (b) raises a triable issue whether such was the case. Thomas v. N. Country Family Health Ctr., 208 A.D.3d 962, 963 (4th Dept. 2022); Ward v. Corning Painted Post Area School Dist., 192 A.D.3d 1563, 1564 (4th Dept. 2021).

But let us suppose the plaintiff’s proof neither suggests nor disproves that he or she was the sole proximate cause of the subject injury. Is it the plaintiff’s burden to anticipate and disprove the “sole proximate cause” defense? The answer is, one would think, at least partly linked to the question of whether the “sole proximate cause” defense is indeed a defense—this as opposed to the alternative view that the absence of sole responsibility is an element of the claim itself.

The question figured in the Fourth Department’s recent 3 to 2 split in Green v. Evergreen Family Ltd. Partnership, 210 A.D.3d 1496 (4th Dept. 2022). The plaintiff therein “fell from an A-frame ladder while working on a 10-foot-high car wash overhead door.” In the majority’s view, there was “no evidence in the record that contradict[ed] the opinion of plaintiff’s expert that the eight-foot A-frame ladder provided to plaintiff was inadequate because it could not have been placed so as to provide proper protection to plaintiff during his work on the bearing and shaft of the car wash overhead door at the time of the accident.” The majority accordingly ruled that plaintiff “established his entitlement to judgment as a matter of law dismissing the sole proximate cause affirmative defense; any failure by plaintiff to refrain from standing on the stop steps of the ladder amounts to no more than comparative negligence, which is not a defense under Labor Law §240(1).”

In contrast, the two dissenters in Green believed that plaintiff’s own testimony, when “viewed in the light most favorable to defendants and with every available inference drawn in their favor, show[ed] that plaintiff thought the provided eight-foot ladder was adequate to safely perform the assigned work on the subject 10-foot overhead car wash door.” In the dissenters’ view, this raised a triable issue as to whether plaintiff himself was the “sole proximate cause” of the accident.

However, for present purposes, my interest is not in the dissenters’ ultimate conclusion, but instead with the premise set forth in the very first sentence of their lengthy dissent. That sentence was: “We respectfully dissent in part because, contrary to the majority’s conclusion, plaintiff failed to meet his initial burden on his motion of establishing as a matter of law that he was not the sole proximate cause of the accident” (emphasis added).

As the dissenters in Green saw it, it was the moving plaintiff’s “initial burden” to address and negate the claim that he was the sole proximate cause of the accident. Yet, that premise is inconsistent with the Court of Appeals’ statements concerning the burden of proof with respect to the “sole proximate cause” issue. It is also inconsistent with the rule applied in every other Department of the Appellate Division.

The Court of Appeals’ Rulings Concerning the Burden of Proof Issue

There have been Court of Appeals’ rulings in which the Court held that the plaintiff was not entitled to summary judgment either because the plaintiff’s own negligence was the sole proximate cause of the subject accident (e.g., Blake v. Neighborhood Hous. Services of New York City, 1 N.Y.3d 280, 289 (2003); Cahill v. Triborough Bridge and Tunnel Auth., 4 N.Y3.d 35, 39-40 (2004)) or because the parties’ proof raised a triable issue of fact as to whether the plaintiff’s own negligence was a proximate cause of the subject accident (e.g., Biaca-Neto v. Boston Rd. II Hous. Dev. Fund, 34 N.Y.3d 1166, 1167-68 (2020)).

Yet, regarding whether the “sole proximate cause” issue relates to an element to be proven or disproven by the plaintiff or, instead, to a defense that must be established by the defendant, the Court of Appeals plainly said in Gallagher v. New York Post, 14 N.Y.3d 83, 87-88 (2010) that the plaintiff makes a prima facie by showing that the defendant “fail[ed] to furnish adequate safety devices.” Once that burden is met, “[t]he burden then shift[s] to [defendant] to raise a question of fact as to whether there was a violation of Labor Law §240(1),” and, more specifically “that adequate safety devices were provided … or, in the alternative, evidence that the sole proximate cause of [plaintiff’s] fall was [plaintiff’s allegedly negligent conduct].”

Thus, in Gallagher itself, where the defendant urged that the plaintiff worker was negligent in failing to utilize any of the allegedly available safety belts and harnesses but there was “no evidence in the record that [plaintiff] knew where to find the safety devices that NYP argues were readily available or that he was expected to use them” (14 N.Y.3d at 88), the absence of any proof compelled the conclusion that defendant had failed to “raise a question of fact that [plaintiff] knew of the availability of the safety devices and unreasonably chose not to use them,” and that the plaintiff’s motion for summary judgment should therefore have been granted (id. at 89).

Again, in Batista v. Manhattanville Coll., 28 N.Y.3d 1093, 1094 (2016), the plaintiff was deemed entitled to summary judgment not because he affirmatively disproved the sole proximate cause defense but instead because “Defendants failed to raise a triable issue of fact whether the plaintiff was the sole proximate cause of his accident.”

The Appellate Division Rulings on the Burden of Proof Issue

Not surprisingly, the Appellate Division’s statements concerning the sole proximate cause issue are in accord with the Court of Appeals’ formulations in Gallagher and Batista.

The First, Second and Third Departments have repeatedly said that the plaintiff establishes a prima facie entitlement to summary judgment by showing that the subject accident was caused at least in part by the absence of “proper protection,” at which point it becomes the defendant’s burden to demonstrate a triable “sole proximate cause” defense, this as opposed to plaintiff having to anticipate and negate the defense. Nenadovic v. P.T. Tenants, 94 A.D.3d 534, 535 (1st Dept 2012) (“[t]he burden having shifted, PT Corp., Liro and Liberty failed to present evidence demonstrating, at minimum, a factual issue whether plaintiff’s fall was caused by other than a § 240 violation, or whether his conduct constituted the sole proximate cause of his injury”); DeSerio v. City of New York, 171 A.D.3d 867, 868 (2d Dept. 2019) (where “plaintiff demonstrates his prima facie entitlement to judgment as a matter of law on the issue of liability under that statute when he testified that a carpentry foreman directed him to retrieve the subject ladder, which the plaintiff ascended without a spotter, and which shifted and shook before the bottom ‘kicked out,’ causing him to fall,” “[t]he burden then shifted to the defendants to present[] some evidence that the device furnished was adequate and properly placed and that the conduct of the plaintiff may be the sole proximate cause of his … injuries [internal quotation marks omitted]”); Canas v. Harbour at Blue Point Home Owners Ass’n, 99 A.D.3d 962, 963-64 (2d Dept 2012) (where “plaintiff made a prima facie showing of his entitlement to judgment as a matter of law on the issue of liability under that statute by showing that, although he was provided with a ladder, as required by the statute, the ladder was not secured so as to prevent it and him from falling,” “[t]he burden then shifted to defendants to present[] some evidence that the device furnished was adequate and properly placed and that the conduct of the plaintiff may be the sole proximate cause of his … injuries [internal quotation marks omitted]”); Fabiano v. State, 123 A.D.3d 1262, 1263 (3d Dept. 2014) (“defendant concedes that claimants demonstrated a prima facie showing of entitlement to judgment upon the collapse of the scaffold, and, thus, the burden shifted to it to raise a question of fact about whether there was a statutory violation and whether claimant’s own acts or omissions were the sole proximate cause of his accident”).

Indeed, while the Green dissenters felt that it was the plaintiff’s initial burden to negate the sole proximate cause defense, and while that same premise had previously been asserted in the majority’s ruling in the 3 to 2 disposition in Walkow v. MJ Peterson/Tucker Homes, 185 A.D.3d 1463, 1467 (4th Dept. 2020), the Fourth Department has on other occasions said that the plaintiff need only establish that he or she was injured due to a lack of “proper protection,” at which point it then becomes the defendant’s burden to establish a “sole proximate cause” defense. Harris v. Tesmer Builders, 197 A.D.3d 911 (4th Dept. 2021) (“[p]laintiff met his initial burden on the motion of establishing that the ladder was ‘not so placed … as to give proper protection to [him],’ and the burden thus shifted to defendant to raise a triable issue of fact whether plaintiff’s ‘own conduct, rather than any violation of Labor Law §240(1), was the sole proximate cause of [his] accident’); see also Abdelhay v. 1105 Group Prop. Mgt., 207 A.D.3d 1187, 1188-89 (4th Dept 2022) (where, however, “defendant’s own submissions raised a triable issue of fact whether plaintiff was the sole proximate cause of the accident”).

It would thus appear that, while the dissenters in Green felt that a plaintiff seeking summary judgment must anticipate and disprove the claim that he or she was the “sole proximate cause” of the subject accident, the weight of the authority suggests the opposite. That said, the distinction will be immaterial where (a) the plaintiff’s own proof raises a triable issue concerning the defense, or (b) the defendant’s opposing proof does so.

The Recurring Issue of the ‘Falling’ Hatch Cover (or Similar Instrumentality)

Per the Court of Appeals’ landmark decision in Rocovich v. Consol. Edison Co., 78 N.Y.2d 509, 514 (1991), Labor Law §240 applies only to a particular class of hazards—namely, elevation-related hazards—that may arise in the course of the activities (“erection, demolition, repairing, altering, painting …”) enumerated in the statute itself.

Although there have been some cases that did not belong in either category yet came within the ambit of the statute (e.g., Runner v. New York Stock Exch., 13 N.Y.3d 599 (2009)), the vast majority of the cases to which the statute was deemed applicable have been (1) cases in which the plaintiff (or decedent) was struck by an object which fell due to the absence of “proper protection,” or (2) cases in which the plaintiff (or decedent) fell (or sustained injury in successfully avoiding a fall) due to the absence of “proper protection.” In other words, the cases tend to involve falling objects or falling workers.

Within that context, suppose that the plaintiff-worker is injured when struck by a hatch door or similar instrumentality, and suppose that the hatch’s closure was caused by gravity. Is that a risk within the statute’s scope? Two First Department decisions rendered just last year provide the answer. The answer: It Depends. The contrast between the two cases provides a stark reminder that the difference between recovery-as-a-matter-of-law and dismissal-as-a-matter-of-law is sometimes problematic.

In Ormsbee v. Time Warner Realty, 203 A.D.3d 630, 631 (1st Dept. 2022), the plaintiff was injured while lifting the lid of a “gang box” when the lid “fell suddenly.” According to the parties’ briefs, the heavy cover was normally lifted and lowered with the aid of hydraulic shocks, but the shocks had worn down and had not yet been replaced. Plaintiff urged that the lid’s fall was an elevation-related accident and that the non-functioning shocks were absent “safety devices” within the statute’s scope. Defendants argued that the elevation differential was de minimis. They also stressed that, while plaintiff indeed sustained a shoulder injury in the course of his attempt to lift the lid, the lid did not actually strike him. The Appellate Division concluded that there was “no ‘significant risk inherent’” in the “relative position” of the raised lid and the gang box, in the process noting that “the lid did not strike any part of his [plaintiff’s] body.” (However, the Court also ruled that the defendants’ failure to repair or replace the hydraulic shocks could give rise to liability under Labor Law §241[6]).

In Ladd v. Thor 680 Madison Ave, 2022 N.Y. Slip Op. 070310 (1st Dept. Dec. 13, 2022), the alleged “falling object” was an “emergency hatch cover” that weighed approximately 30 pounds and provided access to a construction hoist. The cover “which had two hinges, could open as far as 90 degrees perpendicular to the hoist’s roof … [and] closed by the simple force of gravity.” On the occasion in question, plaintiff opened the hatch, let go of it, “and did not realize that it was ‘coming back at him.’” The cover struck him in the head.

The plaintiff’s engineering experts in Ladd opined (a) the cover was defective in that it was not equipped with “a mechanism or device to prevent it from dropping, or significantly slow its descent,” and (b) the ladder by which the plaintiff reached the hatch cover “should have been equipped with a ladder of proper length or a mechanism to slow the descent of the hatch door …” They also said that the hatch itself was a safety device within the meaning of Labor Law §240(1).

Although defendants did not adduce any opposing expert proof, they urged, citing Orsmbee and O’Donoghue v. New York City School Const. Auth., 1 A.D.3d 333 (2d Dept. 2003), that the accident had not involved a legally significant elevation risk and that the hatch cover was not a “safety device” within the scope of Labor Law §240.

The Court this time ruled in the plaintiff’s favor, holding that Labor Law §240 applied and also that the plaintiff was entitled to summary judgment under the statute. Regarding the defense claim that the cover was not a §240 “safety device,” the Court reasoned that defendants’ argument was “misplaced” inasmuch as the hoist was the “safety device” and the hatch door was thus “a component” of an “inadequate safety device,” thus distinguishing the case from Orsmbee and O’Donoghue.

That aside, even assuming that “the hatch door itself” and not “the hoist” of which it was part was “the relevant mechanism,” “[t]he 30-pound hatch door opened precariously to an unsecured 90-degree angle and was subject to a sudden drop triggered by the natural force of gravity.” This, the Ladd Court said, gave rise to an elevation-related hazard that “‘cannot be viewed as de minimis, particularly given the weight of the object and the amount of force it was capable of generating, even over the course of a relatively short descent [quoting from Runner].’” The further distinction was that, in contrast to Orsmbee, the plaintiff injured was a direct consequence of being struck by the falling cover.

Interestingly, the rulings in Orsmbee and Ladd were both unanimous, and one of the judges on the panel in Ladd had also joined in the ruling in Orsmbee. The lesson, I submit, is that each case necessarily turns on its facts and the difference between winning as a matter of law and losing as a matter of law in the world of construction accident litigation is sometimes, figuratively speaking, a matter of inches, not feet.

Brian J. Shoot is a partner with the firm of Sullivan Papain Block McManus Coffinas & Cannavo. He is a member of the Advisory Committee on Civil Practice of the Office of Court Administration of the New York State Unified Court System, and of the American Academy of Appellate Lawyers. His office represented plaintiff in ‘Orsmbee’, discussed herein.

Reprinted with permission from the February 02, 2023 edition of the “New York Law Journal”© 202X ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or reprints@alm.com.