A Foreseeable Opinion: Fabrizi v. 1095 Avenue of the Americas, LLC
By: Robert P. Valletti, Esq.
An interesting opinion came down from the First Department on September 18, 2012 on a Labor Law §240(1) case which may (or may not) have some implications regarding Defendants’ abilities to beat a Plaintiff’s summary judgment motion.
In Fabrizi v. 1095 Avenue of the Americas, LLC, the plaintiff was employed as an electrician and installing a “pool box” (or “pencil box” which is a device used to access telecommunication wires) when a piece of conduit steel that was secured to another pipe came loose and fell on his hand. Notably, the steel that fell had been secured by a compression coupling even after the plaintiff had requested that the pipe be secured by a set screw coupling instead: “plaintiff’s testimony is that when directed to move the pool box, he requested a set screw coupling to secure the pipe to prevent the pipe from falling during the disassembly, and that the failure of defendants to provide this device was a proximate cause of the accident.”
The lower court granted summary judgment in favor of the plaintiff and denied the defendants’ cross-motion.
The First Department disagreed with the lower court for one simple, albeit troubling, reason. Citing Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., the court held: “we find an issue of fact as to whether defendants failed to provide a protective device.” The court relied on Wilinski for the proposition that the trier of fact is to determine whether the plaintiff’s injuries were proximately caused by the lack of a safety device of the kind required by Labor Law §240(1).
The majority’s holding in this case is troubling: even if the defendants provided “a” protective device, it seems as though they did not one that properly protected the plaintiff from injury. The wording of Labor Law §240(1) itself states “All contractors and owners…in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.” I add the emphasis to the end portion here to highlight that a protective device is not the only thing a defendant must provide; rather, proper protection for the work performed is the duty to the contractors and owners, and the facts in Fabrizi seem to show proper protection was not provided as the beam fell due to the failure of the compression coupling. It is noteworthy that the plaintiff even requested a different type of coupling to secure the beam but the request fell on deaf ears.
Troubling as the Majority’s holding may be, there is an opinion authored by the Honorable Justice Roman which concurs in part and dissents in part which focuses on the issue of “foreseeability” in Labor Law §240(1). Justice Roman claims that under §240(1), whether an accident is within the purview of the statute depends on whether the task performed at the time of the accident exposes the worker to gravity-related risks, which he interprets to mean only if it is reasonably foreseeable that the worker will be exposed to a gravity-related hazard will the duty (on the part of the owner/contractor) to provide safety devices be triggered. Justice Roman argues that foreseeability has been a part of what a plaintiff must prove under Labor Law §240(1) since the statutes inception, and that it is implicit in all of the case law handed down because in order for an owner or general contractor to know they must provide safety devices to protect against a risk, the risk must be known. Justice Roman revisits many of the landmark decisions in New York’s case law history to extrapolate this rule and his application to the Fabrizi case deals exclusively with the “dispositive inquiry” of “whether it was reasonably foreseeable at the outset that the task assigned to a worker exposed him/her to a gravity-related hazard, so that he/she should have been provided with one or more of the safety devices required by the statute.” Since Defendants in Fabrizi provided a compression coupling, Justice Roman analyzes the “adequacy, functionality, and placement of [the] safety devices” to determine whether there was a violation of §240(1) (as he concluded, there is a “sharp” question of fact on this issue).
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