Roberts v. General Electric Co.

—Lahtinen, J. Cross appeals from an order of the Supreme Court (Ceresia, Jr., J.), entered December 6, 1999 in Rensselaer County, which, inter alia, granted plaintiffs’ motion for partial summary judgment on the issue of liability pursuant to Labor Law § 240 (1) and partially granted a motion by defendant General Electric Company for summary judgment dismissing the complaint against it. [792] Plaintiff Anthony Roberts was injured, while employed as an asbestos handler by third-party defendant, UE&C Catalytic, a division of Raytheon Constructors, Inc. (hereinafter Raytheon). Raytheon had contracted with defendant General Electric Company (hereinafter GE) to remove asbestos insulation from several chemical tanks at a GE facility in the Town of Waterford, Saratoga County. GE had also employed defendant Fail-safe, Inc. to act as an independent project administrator and air quality monitor. The cylindrical chemical tanks involved were 8 to 10 feet in diameter and approximately 18 to 20-feet long. The tanks were mounted horizontally on concrete stands approximately four feet off the floor. The asbestos removal process involved workers positioned on top of the tanks cutting stainless steel support bands to allow pieces of asbestos insulation to fall 12 to 14 feet to the floor where other workers would retrieve, bag and remove them. Roberts was injured when a falling piece of asbestos struck him on the shoulder. Roberts and his wife, derivatively, commenced this action against GE alleging negligence and liability under Labor Law §§ 200, 240 (1) and § 241 (6). GE commenced a third-party action against Raytheon and Failsafe seeking indemnification, and Raytheon and Failsafe interposed cross claims against one another. Thereafter, plaintiffs apparently amended the complaint to include Failsafe as a direct defendant. Upon various motions by the parties, Supreme Court granted summary judgment to plaintiffs on the Labor Law § 240 (1) claim against GE, granted summary judgment to GE dismissing the first (negligence/Labor Law § 200) and third (Labor Law § 241 [6]) causes of action and established that Raytheon owed GE common-law and contractual indemnification. Raytheon and GE now appeal — by joint brief — challenging that portion of Supreme Court’s order granting plaintiffs summary judgment on the Labor Law § 240 (1) claim and denying their motions seeking dismissal of that cause of action. Plaintiffs cross appeal only from that part of the order that granted GE’s motion for summary judgment dismissing the Labor Law §§ 200 and 241 (6) causes of action.* Turning first to plaintiffs’ Labor Law § 240 (1) cause of action, it is settled that this absolute liability statute is to be construed as liberally as it needs to be in order to accomplish its intended purpose of protecting workers from elevation793 related risks at work sites (see, Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520-521; Koenig v Patrick Constr. Corp., 298 NY 313, 319; Quigley v Thatcher, 207 NY 66, 68; see also, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500). However, recognizing the statute does not encompass “any and all perils that may be connected in some tangential way with the effects of gravity” (Ross v Curtis-Palmer HydroElec. Co., supra, at 501), we must determine whether Labor Law § 240 (1) was designed to prevent the type of accident which caused Roberts’ injury (see, id., at 501). Initially, we note that Roberts was engaged in “cleaning” a “structure,” an activity contemplated by Labor Law § 240 (1). We next consider whether the circumstances surrounding Roberts’ work subjected him to the sort of risks which Labor Law § 240 (1) was intended to obviate, which have been identified by the Court of Appeals as those risks “limited to such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured” (Ross v Curtis-Palmer Hydro-Elec. Co., supra, at 501; see, Melo v Consolidated Edison Co., 92 NY2d 909, 911-912; Misseritti v Mark IV Constr. Co., 86 NY2d 487, 491; Rocovich v Consolidated Edison Co., 78 NY2d 509, 514). In our view, the facts of this case support the conclusion that the falling asbestos that struck Roberts was inadequately secured, thus creating a risk covered by Labor Law § 240 (1). We further conclude that any number of the safety devices enumerated in the statute, had they been furnished, would have prevented the dangerous free fall of the asbestos without unduly impeding the progress of the work that Roberts and his co-workers were engaged in at the time of the accident. Consequently, the failure to provide any safety device was a proximate cause of the accident (see, Zimmer v Chemung County Performing Arts, supra, at 521), convincing us to agree with Supreme Court that plaintiffs are entitled to partial summary judgment on the issue of liability as against GE on this cause of action. Our recent decision in Corey v Gorick Constr. Co. (271 AD2d 911) does not require a different holding as it involved a safety device (a backhoe) which functioned as intended. Moreover, when the facts here are examined, as they must be, from the viewpoint of protecting workers, it is simply irrelevant whether the falling asbestos was intentionally or negligently released where the facts otherwise support the application of the provisions of Labor Law § 240 (1) (see, Campanella v St. Luke’s Roosevelt Hosp., 247 AD2d 294, 295; Brust v Estee Lauder, 184 AD2d 474). [794] We further agree that Supreme Court properly dismissed plaintiffs’ Labor Law § 241 (6) cause of action. To establish a cause of action under that statute, a plaintiff must demonstrate that the defendant has violated a specific safety rule established by the Commissioner of Labor (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 503-505, supra). Here, plaintiffs rely on an alleged violation of the following regulation: “Every place where persons are required to work or pass that is normally exposed to falling material or objects shall be provided with suitable overhead protection. Such overhead protection shall consist of tightly laid sound planks at least two inches thick full size, tightly laid three-quarter inch exterior grade plywood or other material of equivalent strength” (12 NYCRR 23-1.7 [a] [1]). As Supreme Court noted, the purpose of this regulation is apparent, i.e., to protect workers who might be present in a work area subject to the general and unintended risk of falling objects, and has nothing to do with the work procedures employed here. Peters and Mugglin, JJ., concur. Footnotes [*] Plaintiffs have abandoned their appeal with respect to the Labor Law § 200 cause of action and, accordingly, that issue will not be addressed.