Suwareh v. State

Judgment of the Court of Claims of the State of New York (Alan C. Marin, J.), entered on or about March 24, 2004, in favor of claimant and against defendant on the issue of liability under Labor Law § 240 (1), affirmed, without costs. Claimant was made to haul an open bucket of hot tar up to a roof with a rope. On the way up, the bucket became stuck on a [381] ledge. While trying to free the bucket, claimant lost his balance, and, as he leaned back so as not to fall off the roof, lost control of the bucket, which spilled hot tar onto his feet, burning them. Claimant presented expert testimony that this method of getting hot tar up to a roof is contrary to sound engineering principles and the custom and practices of the trade, and that a mechanical hoist with an overhanging board would have been safer. Defendant’s expert said that one of two methods should be used to get hot tar up to a roof: either pumping it up to or heating it on the roof. We agree with the court’s finding that defendants are liable under Labor Law § 240 (1). “The contemplated hazards are those related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured” (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]). We reject defendant’s argument that the accident was not gravity related {see Mills v Tumbleweed Mgt. Co., 270 AD2d 121 [2000]). Although the dissent posits that claimant’s injuries did not result from a gravity-related accident such as falling from a height or being struck by a falling object, in point of fact both of these types of hazards were presented in this case. Here, claimant was both working at an elevated height and was involved in hoisting dangerous materials from one level to another. In attempting to free the bucket from the building ledge, claimant lost his balance and almost fell from the roof. In addition, while attempting to free the bucket, it tipped over and spilled hot tar on his foot. In both instances, the risk of injury was the direct result of the application of gravity to either claimant himself or the materials being hoisted. Had claimant been supplied with a proper hoist to lift the tar, and a proper brace to prevent him from losing his balance on the elevated roof, the accident may not have occurred. That claimant did not fall completely off the roof, or that the tar did not fall from a position high above claimant’s head, but rather spilled when it was being dislodged while being hoisted, does not negate the fact that claimant’s injuries were the direct result of a gravity-related risk. The dissent’s analogy to Ross v Curtis-Palmer Hydro-Elec. Co. (81 NY2d 494 [1993]) is inapt. In Ross, the injury had nothing to do with gravity-related risks such as falling from a height or being struck by a falling object. The plaintiff, while working [382] in an elevated shaft, injured his back because of the contorted position in which he was working. There was no loss of balance nor any spilling or falling of materials. Here, there was both. Concur—Saxe, J.P., Marlow, Ellerin and Gonzalez, JJ.