MOORE v. ELMWOOD FRANKLIN SCHOOL (1998)

Plaintiff was straddling the peak of a roof when his foot slipped and he slid several feet down the roof before his fall was stopped.   Plaintiff sustained severe burns during the fall when hot tar that he had been pouring spilled on him.   Supreme Court granted plaintiff's motion for partial summary judgment on liability under Labor Law § 240(1).   That was error.

Although plaintiff was working at an elevated worksite, plaintiff's slide several feet down the roof is not the type of hazard contemplated by Labor Law § 240(1) (see, Doty v. Eastman Kodak Co., 229 A.D.2d 961, 646 N.Y.S.2d 474, lv. dismissed in part and denied in part 89 N.Y.2d 855, 653 N.Y.S.2d 274, 675 N.E.2d 1226;  see also, Williams v. White Haven Mem. Park, 227 A.D.2d 923, 643 N.Y.S.2d 787).   Because the underlying facts are not in dispute, the issue of liability under Labor Law § 240(1) may be decided as a matter of law.   We therefore grant summary judgment to defendant dismissing the third cause of action (see, CPLR 3212[b] ).

Order reversed on the law without costs, motion denied, summary judgment granted to defendant and third cause of action dismissed.

I respectfully dissent.   Plaintiff, while carrying two five-gallon mop buckets of hot tar, was straddling the peak of a roof approximately 25 feet above the ground when his foot slipped and he fell from the peak several feet down the roof.   As a result, plaintiff received severe burns and other injuries.   Contrary to the holding of the majority, it is not necessary for plaintiff to have fallen off the roof to be entitled to the protection afforded by Labor Law § 240(1) (see, Brown v. Niagara Mohawk Power Corp., 188 A.D.2d 1014, 591 N.Y.S.2d 908).   Because plaintiff was working at an elevated worksite when he fell from the peak and was thus exposed to the type of hazard that the use of safety devices enumerated in Labor Law § 240(1) was designed to protect against, Supreme Court properly imposed absolute liability under that section (see, Norton v. Bell & Sons, 237 A.D.2d 928, 654 N.Y.S.2d 512;  Bennion v. Goodyear Tire & Rubber Co., 229 A.D.2d 1003, 645 N.Y.S.2d 195;  Brown v. Niagara Mohawk Power Corp., supra;  Pietsch v. Moog, Inc., 156 A.D.2d 1019, 1020, 549 N.Y.S.2d 301).   In my view, the injury producing event (i.e., falling from the peak of a roof) is the type of special elevation-related hazard to which Labor Law § 240(1) applies (cf., Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487, 491, 634 N.Y.S.2d 35, 657 N.E.2d 1318, rearg. denied 87 N.Y.2d 969, 642 N.Y.S.2d 197, 664 N.E.2d 1260;  Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500-501, 601 N.Y.S.2d 49, 618 N.E.2d 82).   Consequently, I would affirm.

MEMORANDUM:

All concur except LAWTON, J., who dissents and votes to affirm in the following Memorandum: