FARRELL v. BLUE CIRCLE CEMENT INC (2004)

Plaintiff was an employee of a company that contracted to fabricate and attach metal guards to the blower unit of a cement powder silo conveyor owned by defendant.   Plaintiff was injured when, while gathering and coiling the compressor lines of a welder, he attempted to step down 2 1/212 feet from the surface of a truck scale to the ground.   As plaintiff extended his right foot toward the ground, his left foot slipped on the rain- and cement powder-covered surface of the truck scale, causing his right foot to land awkwardly on the ground.

 Supreme Court properly granted defendant's motion for summary judgment to the extent of dismissing the causes of action for common-law negligence and violations of Labor Law §§ 200 and 240(1), but erred in denying that part of the motion seeking dismissal of the section 241(6) cause of action.   We agree with the court's conclusion that plaintiff's injury was not caused by “the extraordinary elevation risks envisioned by Labor Law § 240(1),” but rather by “the usual and ordinary dangers of a construction site” (Rodriguez v. Margaret Tietz Ctr. for Nursing Care, 84 N.Y.2d 841, 843, 616 N.Y.S.2d 900, 640 N.E.2d 1134;  see Plump v. Wyoming County, 298 A.D.2d 886, 886-887, 748 N.Y.S.2d 195;  McKenna v. Huber, Hunt & Nichols, 284 A.D.2d 901, 901-902, 725 N.Y.S.2d 919;  Cundy v. New York State Elec. & Gas Corp., 273 A.D.2d 743, 743-744, 710 N.Y.S.2d 162, lv. denied 95 N.Y.2d 766, 716 N.Y.S.2d 640, 739 N.E.2d 1145;  Farmer v. City of Niagara Falls, 249 A.D.2d 922, 922-923, 672 N.Y.S.2d 173).   We also agree, however, with the contention of defendant that plaintiff's injury falls outside the scope of the Industrial Code provisions relied on by plaintiff to establish a section 241(6) cause of action.   Plaintiff's reliance on 12 NYCRR 23-1.7(d), which proscribes slipping hazards, is unavailing because plaintiff's accident “did not occur on a ‘floor, passageway, walkway, scaffold, platform or other elevated working surface’ ” (Garland v. Zelasko Constr., 241 A.D.2d 953, 954, 661 N.Y.S.2d 331;  see Lawyer v. Hoffman, 275 A.D.2d 541, 542, 711 N.Y.S.2d 618;  Barnes v. DeFoe/Halmar, 271 A.D.2d 387, 388, 705 N.Y.S.2d 628;  Ramski v. Zappia Enters., 229 A.D.2d 990, 645 N.Y.S.2d 364).   Further, 12 NYCRR 23-1.7(e) is inapplicable to the accident because plaintiff's fall was not caused by a tripping hazard (see Ventura v. Lancet Arch, 5 A.D.3d 1053, 1054, 773 N.Y.S.2d 683;  Bale v. Pyron Corp., 256 A.D.2d 1128, 684 N.Y.S.2d 393).   Finally, 12 NYCRR 23-1.7(f) is likewise inapplicable, because the truck scale cannot be said to be a “working level[ ] above ․ ground” requiring a stairway, ramp or runway under that section.

We therefore modify the order by granting defendant's motion for summary judgment in its entirety and dismissing the complaint.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion in its entirety and dismissing the complaint and as modified the order is affirmed without costs.

MEMORANDUM: