DROP CEILING COLLAPSES, KNOCKING WORKMAN OFF HIS LADDER -- AND NOBODY IS LIABLE
2012 NY Slip Op 32642(U)
October 10, 2012
Sup Ct, Suffolk County
Docket Number: 09-8428
Judge: Jerry Garguilo
Edited by Lawrence N. Rogak
Plaintiff John Garlans commenced this action to recover damages for personal injuries allegedly sustained on August 1 1, 2008 when he fell from a ladder during the replacement and renovation of the air conditioning system for a Dunkin' Donuts franchise store located at 19 Bay Shore Road, Suffolk County, New York. Plaintiff allegedly was injured while attempting to lay flex piping for the installation of new air ducts in the drop ceiling of the building. A portion of the drop ceiling, including some lighting fixtures, allegedly collapsed and knocked plaintiff from the top of the ladder on which he was standing to the floor of the building. The complaint alleges causes of action against defendants for common law
negligence, and for violations of Labor Law 200 and 240 (1) as well as a cause of action under Labor Law 241l(6) based upon alleged violations of the Industrial Code.
The complaint named as additional defendants L&M at Bay Shore ("L&M"), the owner of the Dunkin Donuts franchise, Ducold Enterprises Ltd., the prime contractor for the renovation project, and Ducold Enterprises' subsidiaries, Ducold Mechanicals, Ltd., and Ducold
Plaintiff opposed the motions seeking dismissal of his complaint, and cross-moved for partial
summary judgment in his favor on the issue of liability as against defendants Ducold and Dellafranca. Plaintiff asserts that Ducold and Dellafranca failed to provide him with a safe place to work or with safety devices designed to prevent or break his fall, and that they violated numerous sections of the Industrial Code. Dunkin Donuts, Ducold, Dellafranca and L&M all opposed plaintiff's motion, arguing that plaintiffs claim under Labor Law 24 1(6) is not actionable, because it is premised upon inapplicable sections of the Industrial Code, and that his Labor Law 240 ( 1 ) claim fails as a matter of law because it relates to the unforeseeable collapse of a part of the building's permanent structure. Defendants further assert that plaintiffs claims under Labor Law 200 and the common law must be dismissed since they neither had actual or constructive notice of the alleged defective drop ceiling, nor
directed, supervised or controlled the means or method of plaintiffs work.
"Ducold established, prima facie, its entitlement to summary judgment dismissing
plaintiffs claim under Labor Law $240 (1) by submitting evidence that the drop ceiling and light fixture which unexpectedly collapsed and knocked plaintiff from the ladder were not in the process of being hoisted or secured. and did not require securing for the purposes of plaintiffs work at the time of the accident. Further, Ducold submitted unrefuted evidence that the six-foot A-frame ladder utilized by plaintiff at the time of the accident provided adequate protection for plaintiffs work, and was free of any defect. Significantly, plaintiff testified that the ladder he used was new and sturdy, and that he only fell because he was struck by a light fixture that swung from the roof of the store after the drop ceiling collapsed. In opposition, the conclusory assertion of plaintiff's counsel that plaintiff should have been provided with equipment to prevent the drop ceiling from collapsing is insufficient to raise a triable issue warranting denial of the motion."
"Ducold established its prima facie entitlement to summary judgment dismissing plaintiffs
Labor Law $200 claim against it by demonstrating that it did not have the authority to supervise or control plaintiffs work at the time of the accident, and that it neither created nor had actual or constructive notice of any alleged defective design or construction of
the drop ceiling. Significantly, plaintiff testified that he only took directions from his
employer's lead mechanic while he was at the worksite, and that at no time did anyone, including Ducold, have the authority to supervise or direct the methods or manner of his work. Further, an employee of Ducold testified that both he and plaintiff's employer inspected the drop ceiling one month prior to the accident, and that neither of them noticed any defects in the drop ceiling at that time. Additionally, Ducold provided the deposition testimony of the maintenance subcontractor hired by L&M, who testified that the drop ceiling was intact and functional prior to the alleged accident. "
"The burden, therefore, shifted to plaintiff to raise a triable issue warranting denial of the motion. Plaintiff failed in this regard, as he submitted no evidence raising any triable issues as to whether Ducold had the authority to supervise or control his work at the time of the accident, or whether it created or had actual or constructive notice on any defective condition in the design or construction of the drop ceiling. Indeed, plaintiffs mere speculatory assertion that the drop ceiling may have collapsed because it was nailed rather than screwed into the wooden beam of the store's roof, or that the weight of signs hung from the drop ceiling in other parts of the store may have caused the collapse of the drop ceiling, is insufficient to raise such an issue. Thus, the branch of Ducold's motion seeking summary judgment dismissing plaintiffs claim under Labor Law $200 is granted."
"The branch of Ducold's motion seeking summary judgment dismissing plaintiffs claim under
Labor Law 241(6) also is granted. Labor Law $24 1(6) requires owners and general contractors to provide reasonable and adequate protection and safety" for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor. To recover damages on a cause of action alleging a violation of Labor Law § 241 (6), a plaintiff must establish the violation of an Industrial Code provision which sets forth specific safety standards. Further, the rule or regulation alleged to have been breached must be a specific, positive command, and must be applicable to the facts of the case."
"Here, plaintiffs bill of particulars asserts violation of various provisions of the New York
Industrial Code, including 12 NYCRR 23-1.7(b)(I) (b-c), 12 NYCRR 23-1.15 (a-e), 12 NYCRR 23-1.16 (a-f), 12 NYCRR 23-1.17 (a-e), 12 NYCRR 23-1.19 (a-d), 12 NYCRR 23-1.22 (b) (1)(2)(3)(4), and 12 NYCRR 23- 1.22 (c) However, the regulations set forth at 12 NYCRR 23-1.15 (a-e), 23- 1.16 and 23-1.17, which set standards for safety belts, life nets and harnesses, respectively, are inapplicable under the circumstances of this case, as plaintiff was not provided with any of those devices at the time of the alleged accident. Likewise, 12 NYCRR 23-1.7(b) (1) (b-c), is not applicable to the facts of this case, as that regulation applies to safety devices for hazardous openings, and not to an elevated hazard. 12 NYCRR 23-1. 22 (b) (1-4) and 12 NYCRR 23- I (c), which respectively set forth standards for ramps, runways, and platforms, also are inapplicable. Furthermore, 12 NYCRR 23- 1.19 (a-d), which sets forth the standards for the use of catch platforms, is inapplicable where, as here, there has been no showing that such items were either used or required for the performance of plaintiffs work."
"Additionally, where, as here, Ducold demonstrated that it played no part in causing or
augmenting plaintiffs alleged injuries, that it was not actively negligent, and that it neither had actual nor constructive notice of the alleged defective condition, the branch of its motion for summary judgment dismissing the cross claims by Dunkin Donuts, Dellafranca and L&M for contribution, and/or contractual or common law indemnification is granted."
"Furthermore, having determined that plaintiff claims under Labor Law 5240( 1) and $241 (6) may not be maintained, and that no evidence exists that any of the defendants either created or had actual or constructive notice of the existence of any alleged defect in the design or construction of the drop ceiling, the motion by Dunkin Donuts, Dellafranca and L&M for summary judgment dismissing the complaint and all cross claims against them is granted."
Comment: It seems incredible that a drop ceiling can collapse, knocking a workman off his ladder, and nobody is liable. Yet, the drop ceiling had been previously inspected and found to be sound, and the drop ceiling was not the subject of the work. The ladder was not defective, and the workman had all the safety devices appropriate for his job. One might think that the contractor might be held negligent -- or at least find an issue of fact about possible negligence -- for failing to find a defect in a drop ceiling upon inspecting it a month earlier, because a drop ceiling should not just suddenly collapse. But this plaintiff is simply out of luck except for worker's comp. A most unusual set of facts.