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Cesar Ortega, et al., Plaintiffs-Appellants, -- the v. City of New York

March 29, 2012


Plaintiffs appeal from an order of the Supreme Court, New York County (Michael D. Stallman, J.), entered March 30, 2011, which denied their motion for partial summary judgment under Labor Law § 240(1).

The opinion of the court was delivered by: Acosta, J.

Ortega v City of New York

Decided on March 29, 2012

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Richard T. Andrias, J.P. John W. Sweeny, Jr. Rolando T. Acosta Helen E. Freedman Sallie Manzanet-Daniels, JJ.


At issue in this case is whether a plaintiff seeking summary judgment on his Labor Law § 240(1) claim must establish as part of his prima facie case that the injury was foreseeable. We hold that a plaintiff is not required to demonstrate that the injury was foreseeable, except in the context of a collapse of a permanent structure (see e.g. Jones v 414 Equities LLC, 57 AD3d 65 [2008]). Outside the permanent structure collapse context, a plaintiff simply needs to show that he or she was injured while engaged in a covered activity, and that the defendant's failure to provide adequate safety devices of the type listed in Labor Law § 240(1) resulted in a lack of protection. Accordingly, in the present case, there is no need for plaintiff to submit expert testimony on foreseeability or otherwise establish that the accident was foreseeable as part of his prima facie case. Background

Plaintiff Cesar Ortega, an employee of a subcontractor on the Second Avenue Subway Tunnel Construction Project, was injured while connecting pipes that were to be used to pour concrete underground using the "Tremie Concrete" method. In order to perform this work, plaintiff stood on a work platform located eight feet above the ground and contained within a metal cage known as a tremie rack. This was a rectangular structure, approximately 12 feet high. In addition to housing a work platform, the tremie rack contained vertical slots in which heavy tremie pipes were held. These pipes had a collar at one end and were kept in place by square shaped holders referred to as "keepers." The rack was resting on unsecured wooden planking that was meant to level the gravel surface below. Plaintiff was ejected from the platform when the collar of a tremie pipe that was being hoisted by a multi-ton rig got caught on the keeper, and caused the tremie rack to tip over onto its side.

Ronald Knott, site safety director employed by defendant Skanska, testified at his deposition that upon his investigation of the accident, he concluded that the accident occurred for several reasons, including the stability of the underside of the tremie rack, the weight distribution of the pipes and the fact that the rack was taller than it was wide. Plaintiffs relied on this testimony in arguing that the tremie rack, which we view as a scaffold, albeit one designed specifically for the task at hand, was not secured to the ground. Specifically, citing Ross v Curtis-Palmer Hydro-Elec. Co. (81 NY2d 494, 501 [1993] ["Labor Law § 240(1) was designed to prevent those types of accidents in which the scaffold . . . or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person"]), they argued that the tremie rack was "not fixed, welded or bolted in the ground."

In denying plaintiffs' motion for partial summary judgment, Supreme Court found that issues of fact remained, including whether the accident was foreseeable and whether defendant failed to assure proper placement of the tremie rack. The court noted that "foreseeability may be inherent in the work in which the plaintiff may be engaged," and that the failure of the furnished protective device to prevent a foreseeable external force from causing plaintiff to fall from an elevated work station entitled plaintiff to judgment as a matter of law. The court, however, found that issues of fact existed due to plaintiffs' failure "to provide expert testimony which would elucidate, among other issues, what standards govern the interplay of drilling rigs and tremie racks, and what measures were foreseeably necessary to ensure the safety of workers performing in the circumstances."

On appeal, plaintiffs argue that they established a violation of Labor Law § 240(1), as defendant failed to provide plaintiff with proper safety devices and failed to assure that the tremie pipe was properly hoisted so that it would not knock over the tremie rack. With respect to expert testimony, they argued that such testimony was not needed to establish that the injury was foreseeable because the tremie rack was an elevated, temporary structure, that was not secured to the ground. In response, defendant argues that the order denying plaintiffs' motion for partial summary judgment should be affirmed, inter alia, because plaintiffs did not establish that the manner in which the accident occurred was foreseeable, and failed to identify which safety device was defective or not provided. Analysis

In reversing, we hold that there is no requirement that plaintiff offer expert testimony on the foreseeability of the accident to prevail on a Labor Law § 240(1) claim outside the permanent structure context. Indeed, it has been firmly established that in order to make out a valid claim under Labor Law § 240(1), a "plaintiff need not demonstrate that the precise manner in which the accident happened or the injuries occurred was foreseeable; it is sufficient that he demonstrate that the risk of some injury from defendans' conduct was foreseeable" (Gordon v Eastern Ry. Supply, 82 NY2d 555, 562 [1993]). In other words, when a worker is performing one of the inherently dangerous activities covered by Labor Law § 240(1), some injury is foreseeable from the failure of a contractor or owner to provide the worker with proper safety devices (Gordon, 82 NY2d at 562). Thus, a plaintiff merely has to demonstrate that he or she was injured when an elevation-related safety device failed to perform its function to support and secure him from injury (see Morin v Machnick Bldrs., 4 AD3d 668, 670 [2004]).

A defendant's failure to provide workers with adequate protection from reasonably preventable, gravity-related accidents will result in liability (Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 7 [2011]; Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009] ["the single decisive question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential"]). Indeed, the question of circumstantial reasonableness is irrelevant when safety devices are required pursuant to Labor Law ยง 240(1), and an owner or contractor is absolutely liable in damages for injuries sustained by a covered worker (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 519 [1985]; see also Runner v New York Stock Exchange, 13 NY3d at 603; Perez v NYC Partnership Hous. Dev. Fund Co., Inc., 55 AD3d 419, ...

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