FRANCIS v. Brownell Steel Inc. et al., Third-Party Defendants-Respondents.

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Supreme Court, Appellate Division, Third Department, New York.

Philip R. FRANCIS, Appellant, v. ALUMINUM COMPANY OF AMERICA, Respondent, Cives Corporation, Defendant and Third-Party Plaintiff-Respondent; Brownell Steel Inc. et al., Third-Party Defendants-Respondents.

Decided: June 26, 1997

Before CARDONA, P.J., and WHITE, CASEY, SPAIN and CARPINELLO, JJ. Di Nardo, Di Nardo & Lukasik (Michael G. Dwyer, of counsel), Buffalo, for appellant. Carter, Conboy, Case, Blackmore, Napierski & Maloney P.C. (Joseph T. Johnson, of counsel), Albany, for respondent. Michael G. Donnelly, Syracuse, for defendant and third-party plaintiff-respondent. Conboy, McKay, Bachman & Kendall (David B. Geurtsen, of counsel), Watertown, for Brownell Steel Inc., Kathleen D. Foley, Hauppage, for PDH Trucking Company Inc., third-party defendant-respondent.

Appeal from an order of the Supreme Court (Ryan Jr., J.), entered June 11, 1996 in Franklin County, which, inter alia, granted motions by defendants and third-party defendants for summary judgment dismissing the complaint.

At all times herein relevant plaintiff was employed as a journeyman ironworker by third-party defendant Brownell Steel Inc. Brownell contracted with defendant Cives Corporation, who in turn had been hired as a general contractor by the owner of the premises, defendant Aluminum Company of America (hereinafter ALCOA).   On December 15, 1992 plaintiff and a co-worker were assigned the duty of unloading large flatbed trucks loaded with structural steel;  the steel was being used for the erection of an iron ore facility on ALCOA's property.   Plaintiff, while in the process of removing layers of steel from a flatbed truck, slipped and fell into a gap to the surface of the flatbed truck as he walked on the 31/212 to 4-foot-high load of snow-covered steel;  he sustained serious injuries.

Plaintiff commenced the instant action alleging that the injuries were the result of violations of Labor Law §§ 200, 240(1) and § 241(6).   Defendants answered and Cives commenced a third-party action against third-party defendants for, inter alia, contribution and indemnification.   Thereafter, Brownell moved for summary judgment seeking dismissal of plaintiff's complaint and third-party defendant PDH Trucking Company Inc. moved for summary judgment seeking dismissal of the third-party complaint.   Cives and ALCOA each cross-moved for summary judgment dismissing plaintiff's complaint.   Plaintiff opposed the motions and cross-moved for summary judgment against defendants on his Labor Law § 240(1) cause of action.   Supreme Court, finding that plaintiff was not injured from a fall from an elevated worksite as contemplated by the statute, dismissed plaintiff's Labor Law § 240 (1) cause of action.   The court further found that many of the regulations cited in plaintiff's complaint were not specific standards of conduct necessary to sustain a Labor Law § 241(6) cause of action or were inapplicable to the facts at bar and dismissed that cause of action;  notably, plaintiff withdrew his Labor Law § 200 cause of action.   Plaintiff appeals.

 We affirm.   The purpose of Labor Law § 240(1) is to protect workers by placing the “ultimate responsibility” for worksite safety upon the owner and general contractors, instead of on the workers themselves (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500, 601 N.Y.S.2d 49, 618 N.E.2d 82;  Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513, 577 N.Y.S.2d 219, 583 N.E.2d 932).   Clearly, this section imposes absolute liability on owners, contractors and their agents for any breach of the statutory duty which has proximately caused injury (see, id.).   However, the statute is not all encompassing;  rather, it covers only those hazards “related to the effects of gravity where protective devices are called for * * * because of a difference between the elevation level of the required work and a lower level” (Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514, 577 N.Y.S.2d 219, 583 N.E.2d 932, supra ).   Here, plaintiff's injuries, as revealed by his own deposition testimony and affidavit, occurred when he slipped and fell from the 31/212 to 4-foot-high load of steel beams he was unloading to the surface of the flatbed truck.   In our view, the facts presented herein reveal that plaintiff's injuries “were not the result of the type of elevation-related risk encompassed by Labor Law § 240(1)” (Dorr v. General Elec. Co., 235 A.D.2d 883, 884, 652 N.Y.S.2d 845, 846;  see, White v. Sperry Supply & Warehouse, 225 A.D.2d 130, 132, 649 N.Y.S.2d 236, 238).   Slipping and falling from the steel beams upon which plaintiff was standing does not constitute an elevation-related risk within the parameters of Labor Law § 240(1) (see, e.g., Basile v. ICF Kaiser Engrs. Corp., 227 A.D.2d 959, 643 N.Y.S.2d 854, 855;  Charles v. City of New York, 227 A.D.2d 429, 430, 642 N.Y.S.2d 690, lv. denied 88 N.Y.2d 815, 651 N.Y.S.2d 16, 673 N.E.2d 1243;  Mitchell v. County of Jefferson, 226 A.D.2d 1109, 641 N.Y.S.2d 963) because plaintiff's injuries occurred at the same level as his worksite.

 We also conclude that Supreme Court properly dismissed plaintiff's Labor Law § 241(6) cause of action.1  Regulations which set forth general standards as opposed to “concrete specifications” will not support a Labor Law § 241(6) cause of action (see, Ross v. Curtis-Palmer Hydro-Elec. Co., supra, at 501-505, 601 N.Y.S.2d 49, 618 N.E.2d 82;  Narrow v. Crane-Hogan Structural Sys., 202 A.D.2d 841, 842, 609 N.Y.S.2d 372).   Furthermore, even if a given regulation sets forth a “concrete specification”, the regulation must be applicable to the set of facts presented (see, e.g., McGrath v. Lake Tree Vil. Assocs., 216 A.D.2d 877, 878, 629 N.Y.S.2d 358;  Knudsen v. Pentzien Inc., 209 A.D.2d 909, 911, 619 N.Y.S.2d 192).   Although 12 NYCRR 23-1.7(d), which provides for protection from slipping hazards, is specific enough to support a Labor Law § 241(6) cause of action (see, Ramski v. Zappia Enters., 229 A.D.2d 990, 990, 645 N.Y.S.2d 364, 366;  Ciraolo v. Melville Ct. Assocs., 221 A.D.2d 582, 583, 634 N.Y.S.2d 205), we agree with Supreme Court that the regulation is inapplicable to the circumstances presented herein because the load of steel beams from which plaintiff fell did not constitute a floor, passageway or elevated area as set forth in the regulation (see, 12 NYCRR 23-1.7[d];  Basile v. ICF Kaiser Engrs. Corp., supra, at 959, 643 N.Y.S.2d at 856;  McGrath v. Lake Tree Vil. Assocs., supra, at 878, 629 N.Y.S.2d 358;  Stairs v. State St. Assocs., 206 A.D.2d 817, 818, 615 N.Y.S.2d 478).

ORDERED that the order is affirmed, with one bill of costs.

FOOTNOTES

1.   Although plaintiff cited other regulations in his complaint, he only argues the applicability of 12 NYCRR 23-1.7(d).   Any arguments with respect to the other regulations are therefore deemed abandoned (see, D'Argenio v. Village of Homer, 202 A.D.2d 883, 884, 609 N.Y.S.2d 943).

SPAIN, Justice.

CARDONA, P.J., and WHITE, CASEY and CARPINELLO, JJ., concur.

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