Friday, June 20, 2014

Repair as opposed to routine maintenance under the Labor Law.

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.