Diaz v. Globalfoundries Inc. et al

Filing 42

MEMORANDUM-DECISION AND ORDER: It is ORDERED that plaintiff's # 24 Motion for partial Summary Judgment is DENIED. It is further ORDERED that defendants' # 25 Motion for Summary Judgment dismissing the action is GRANTED. Signed by Senior Judge Norman A. Mordue on 8/01/2013. (mc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
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JOSE DIAZ,
Plaintiff,
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1:12-CV-1327 (NAM/TWD)

GLOBALFOUNDRIES, U.S., INC. and M + W
U.S., INC.,
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Defendants.
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APPEARANCES:

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Bennett, Giuliano, McDonnell & Perrone, LLP
Matthew M. Gorden, Esq., of counsel
Nicholas P. Giuliano, Esq., of counsel
494 Eighth Avenue - 7th Floor
New York, New York 10001
Attorneys for Plaintiff
Hiscock & Barclay, LLP
David M. Cost, Esq., of counsel
Thomas J. O’Connor, Esq., of counsel
80 State Street
Albany, New York 12207
Attorneys for Defendants

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Hon. Norman A. Mordue, Senior U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
INTRODUCTION
Plaintiff moves (Dkt. No. 24) for partial summary judgment on the issue of liability in this
diversity action based on section 240(1) of New York State Labor Law.1 Defendants move (Dkt.
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By stipulation and order filed September 27, 2013 (Dkt. No. 23), plaintiff’s claims under New
York State Labor Law §§ 200 and 241(6) and for common law negligence were discontinued against all
defendants on the merits, with prejudice.

No. 25) for summary judgment dismissing the action in its entirety. As set forth below, the Court
denies plaintiff’s motion, grants defendants’ motion, and dismisses the case.
FACTS
In this action based on an injury sustained while he was working at a construction site,
plaintiff claims that he is entitled to the benefit of section 240(1) of the New York Labor Law.
Section 240(1) imposes strict liability on building owners and contractors for injury to a worker
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caused by the failure to provide proper protection against an elevation-related hazard. See
Wilinski v. 334 East 92nd Housing Development, 18 N.Y.3d 1, 7 (2011).
The determinative facts regarding the accident are undisputed. Plaintiff, a sheet metal
worker, injured his left shoulder on October 6, 2010, while working in the FAB 8.1 building at a
factory then under construction in Malta, New York. For purposes of this motion,

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Globalfoundries U.S. Inc. stipulates that it is the owner of the jobsite, and M + W U.S., Inc.
stipulates that it is the general contractor on the project. Plaintiff was employed by Kleeberg
Tougher, which contracted with M + W U.S., Inc. to install the HVAC system in the FAB 8.1
building, including the installation of ductwork. At the time of the accident, plaintiff was
working on a branch of the ductwork that was approximately 16 feet off the floor. Plaintiff’s
affidavit in support of his summary judgment motion states:

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12. On October 6, 2010, I was instructed by my foreman, Bob White, to install
a ventilation door or cap (“door”) on a branch coming off the main ventilation
duct. The branch had a diameter of about 30 inches. The door was to function
as a temporary cap on the branch to allow Kleeberg to test the system.
13. At Fab 8, installing the door was a three man job that also required two
ladders and a pulley system.
14. When three workers performed the job at Fab 8, two extension ladders
were set up parallel to each other about 6 feet apart. The ladder tops rested
against the main ventilation duct. One ladder was on the right side of the
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branch and the other on the left side of the branch. Two workers ascended the
ladders while one remained on the floor and used a rope and pulley system to
hoist the door up to the two workers on the ladders. As the door was hoisted
near the branch to be capped, the two workers on the ladders guided it into
position and then secured it into place using bolts and torque wrenches.
15. At other job sites, we did this work with two men, but we used a chain
block or equipment lift instead of a rope and pulley. When a chain block or
equipment lift is used, the door can be raised into position above the floor and
held in place by the chain block or lift. When a rope and pulley system is
used, the rope must be held by a third worker on the floor to keep the door
from falling to the ground.
16. On October 6, 2010, there were not enough workers or gear to do the job.
My foreman told me to work with him. We did not have a third worker, a
pulley, a chain block, or an equipment lift. I questioned whether we could do
the job without a pulley or third worker. My foreman said we could.
17. The foreman told me to climb the ladder and raise the door to the duct.
18. I used a vise grip and clamp to attach a rope to the door, went up the
ladder and then hoisted the door up from the floor to the ventilation duct using
the rope.
19. My foreman became distracted by other work and did not ascend the other
ladder that was set up near mine.
20. I hoisted the door from the floor to the ventilation duct, a distance of no
less than16 feet.
21. As the door got near the branch to be capped, I called to my foreman to
help install the door on the branch opening, but my foreman was not there.
22. While holding the rope with my left hand, I attempted to maneuver the
door into position on the opening in the branch.
23. Because of the weight of the door, the absence of the pulley system, chain
block, or equipment lift, I could not hold the door in position and secure it in
place.
24. The door weighed at least 30 pounds and I was holding it on the right side
of the ladder using my left hand, so I was reaching across my chest.
25. I felt pain in my left shoulder and could not continue to hold the door, so
I transferred the load to my right hand. I could not drop the door because I
could not see below and did not want to hurt anyone. Then, using my right
hand and arm, I lowered the door to the floor.
26. Immediately prior [to] lowering the door, the door was not secured or not
sufficiently secured to prevent it from falling.
27. At the time of the incident, no device was utilized to prevent the door from
falling or to hold it in place or to allow me to perform my job safely.
28. When I descended to the floor, I immediately advised my foreman of the
incident.
***
31. On November 11, 20l0, I had an MRI of my left shoulder.
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32. I believe the MRI indicated that I tore my rotator cuff.
33. On July 11, 2013, l underwent shoulder surgery and I am now going to
physical therapy.
At his deposition, plaintiff testified as follows:

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Q On this day, it was just you and Mr White, correct?
A Correct.
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A [White] was on the floor. He instruct me. Jose, take the rope. Go up there
and start pulling. I meet you up there. We could do this. It happens I
couldn’t see him because the branches and I’m standing right here.
Q On your right-hand side?
A The guy supposed to come up here. I’m in an awkward position. The
ladder was leaning against the big trunk. I’m trying to pull, holding on the top
branch, pulling two hands. When I get closer, I notice I’m a little jammed
underneath because I’m against it. I call. He is not there. I don’t want to
drop. I can’t see what’s below. When I’m pulling I don’t have to see what
I’m pulling and I figure he’s coming up with me. So I try to bring it over to
put a pin to hold it there for a minute, because the weight was tremendous and
he was not there. So when I try to pin it, that’s when I felt the [pain].
***
Q Mr. Diaz, you said you went up the ladder and you said you were pulling
up this cap. Was that just pulling up the rope with your left arm?
A Not exactly.
Q How did you pull up the rope is my question?
A I took the rope upstairs. I took it to the center of the opening which is about
30 inches. I put my hand on top of that. I hold the rope here. I pull it, his
one. I grab the other one. Okay. At the time I got close, I need to bring it up
to put it to lock it up in place because I expected him to be here. I didn’t have
... the strength. Within a minute, I was losing it. Either I drop it or – I tried
to hold it from dropping it so.
***
Q What I understand is that you were holding part of the rope with your right
arm as you drew it up with your left arm?
A No, holding up with the left arm while pulling with the right.
Q Holding the tension of the rope with your left arm as you are pulling it up
with the right?
A Yes.
Q When you got it to the top, you went to move it into place?
A Move it away from the cap to bring it up over to get it closer.
Q When you lifted it, that’s [when] you felt the pain?
A Yes.
Q You felt the pain. Then you had to lower it to the floor?
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A I hold it with my right arm and let it go down.
***
A ... The access door, the door we were bringing up, was caught on the bottom
of the whole radius. I was raising the rope against it. I needed to get it away
from it in order to bring it up higher to clear when I'm getting caught. That’s
actually when it.
Q That’s when you felt the pain?
A Yes.
Q At that point, can you estimate how far the door was from the opening?
A Approximately the same size of the opening, about 30 inches.
Q Your hands, were they right in front of the opening at this point?
A Repeat that.
Q Your hands, I understand the door was 30 inches below. Were hands right
in front of the opening?
A No, above the opening.
Q How far were they above the opening?
A At the time of the accident?
Q Yes.
A It was higher than the opening, a little bit higher.
Q Can you approximate how much higher?
A Eight or 12 inches.
Q How much did the cap weigh in your estimation or the door, sorry?
A Between 30 pounds or more.
***
Q After you lowered the door to the ground, did you climb down the ladder?
A. Yes, I managed to come down.
Q When you were on the ladder, nothing fell on you, right?
A No.
Q When you were on the ground, nothing fell on you, right?
A No.
In his response (Dkt. No. 33) to defendants’ Statement of Material Facts (Dkt. No. 28),

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plaintiff admitted that “when the door reached him he attempted to move it in place as it was
caught below the bottom of the ductwork. In an awkward position, he pulled it out from beneath
the branch of the ductwork and attempted to lift it into place.” (Citations to record omitted.)
Plaintiff added that he “felt pain when he tried to free the door from being stuck underneath the
branch opening.”
DISCUSSION
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Summary judgment is appropriate when there is no genuine issue with regard to any
material fact, and the moving party is entitled to judgment as a matter of law. See Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). Stated otherwise, summary judgment is appropriate
“[w]here the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party[.]” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). When deciding a summary judgment motion, the Court must “resolve all ambiguities and
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draw all factual inferences in favor of the party opposing the motion.” McPherson v. Coombe,
174 F.3d 276, 280 (2d Cir. 1999).
In this diversity case, the Court applies New York State substantive law. The dispute on
the instant motions centers on whether plaintiff is entitled to recover under section 240(1) of the
New York State Labor Law. Section 240(1) provides:

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All contractors and owners and their agents, ... in the erection, demolition,
repairing, altering, painting, cleaning or pointing of a building or structure
shall furnish or erect, or cause to be furnished or erected for the performance
of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks,
pulleys, braces, irons, ropes, and other devices which shall be so constructed,
placed and operated as to give proper protection to a person so employed.
Section 240 “imposes absolute liability on building owners and contractors whose failure to
provide proper protection to workers employed on a construction site proximately causes injury to

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a worker.” Wilinski, 18 N.Y.3d at 7 (citation and quotation marks omitted). “Whether a plaintiff
is entitled to recovery under Labor Law § 240(1) requires a determination of whether the injury
sustained is the type of elevation-related hazard to which the statute applies.” Id. (citing Rocovich
v. Consolidated Edison Co., 78 N.Y.2d 509, 513 (1991).
New York courts have long applied a “falling worker or falling object” standard in
evaluating whether a case falls within the reach of section 240(1). See, e.g., Ross v. Curtis-6-

Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501 (1993) (stating that the reach of Labor Law §
240(1) is “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.”). In Runner v.
New York Stock Exchange, Inc., 13 N.Y.3d 599 (2009), the Court of Appeals elaborated upon this
standard, holding that liability for injury caused by a falling object does not “depend upon
whether the object has hit the worker.” Id. at 604.2 Rather, “[t]he relevant inquiry – one which
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may be answered in the affirmative even in situations where the object does not fall on the worker
– is ... whether the harm flows directly from the application of the force of gravity to the object.”
Id.
Plaintiff in the case at bar relies heavily on the Runner decision. The facts in Runner are
as follows:

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Plaintiff and several coworkers had been directed to move a large reel of wire,
weighing some 800 pounds, down a set of about four stairs. To prevent the
reel from rolling freely down the flight and causing damage, the workers were
instructed to tie one end of a 10-foot length of rope to the reel and then to
wrap the rope around a metal bar placed horizontally across a door jamb on
the same level as the reel. The loose end of the rope was then held by plaintiff
and two coworkers while two other coworkers began to push the reel down the
stairs. As the reel descended, it pulled plaintiff and his fellow workers, who
were essentially acting as counterweights, toward the metal bar. The expedient
of wrapping the rope around the bar proved ineffective to regulate the rate of
the reel's descent and plaintiff was drawn horizontally into the bar, injuring his
hands as they jammed against it.

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Id. at 602. In addressing these facts, the Runner court acknowledged that it had previously
characterized the “special hazards” covered by section 240(1) as “‘falling worker’ and ‘falling
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The New York Court of Appeals decided Runner v. New York Stock Exchange, Inc., 13 N.Y.3d
599 (2009), in response to questions certified by the Second Circuit. See Runner v. New York Stock
Exchange, Inc., 568 F.3d 383 (2nd Cir. 2009), certifying questions; 12 N.Y.3d 892 (2009), accepting
certified questions; 13 N.Y.3d 599 (2009), answering certified questions; 590 F.3d 904 (2d Cir. 2010),
conforming to answer to certified questions.

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object’ cases,” and as “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.” Id. at
604 (quoting Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267 (2001), and Ross v. CurtisPalmer Hydro-Elec. Co., 81 N.Y.2d 494, 501 (1993)). The Runner court continued:

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But in referring to these familiar scenarios in which section 240(1) liability
may arise, neither [Narducci nor Ross] purports exhaustively to define the
statute’s protective reach. Rather, the governing rule is to be found in the
language from Ross following closely upon that just quoted, where we
elaborated more generally that “Labor Law § 240(1) was designed to prevent
those types of accidents in which the scaffold, hoist, stay, ladder or other
protective device proved inadequate to shield the injured worker from harm
directly flowing from the application of the force of gravity to an object
or person (Ross, 81 N.Y.2d at 501...).
Id. (emphasis in Ross). In determining that the plaintiff in Runner was entitled to recover under
section 240(1), the Runner court provided the following analysis:

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Manifestly, the applicability of the statute in a falling object case such as the
one before us does not under this essential formulation depend upon whether
the object has hit the worker. The relevant inquiry – one which may be
answered in the affirmative even in situations where the object does not fall
on the worker – is rather whether the harm flows directly from the application
of the force of gravity to the object. Here, as the District Court correctly
found, the harm to plaintiff was the direct consequence of the application of
the force of gravity to the reel. Indeed, the injury to plaintiff was every bit as
direct a consequence of the descent of the reel as would have been an injury
to a worker positioned in the descending reel’s path. The latter worker would
certainly be entitled to recover under section 240(1) and there appears no
sensible basis to deny plaintiff the same legal recourse.
***
The elevation differential here involved cannot be viewed as de minimis,
particularly given the weight of the object and the amount of force it was
capable of generating, even over the course of a relatively short descent. And,
the causal connection between the object’s inadequately regulated descent and
plaintiff’s injury was, as noted, unmediated – or, demonstrably, at least as
unmediated as it would have been had plaintiff been situated paradigmatically
at the rope’s opposite end.

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Id. at 604-05.
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Plaintiff argues:
The instant matter is very similar to Runner. In both cases, a pulley system
should have been used and, in both cases, the failure to do so caused injury to
the plaintiff. In both cases, the workers jerry-rigged a simple rope in lieu of
a pulley system, which failed to perform its intended function.
Thus, plaintiff contends, his injuries, like those in Runner, were the direct consequence of a
failure to provide adequate protection against a risk arising from a significant elevation
differential.
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This Court reads Runner differently. It is true that Runner made clear that section 240(1)
liability may arise even where the object does not actually strike the plaintiff. Runner did not,
however, as this Court reads it, hold that such liability may arise where the object does not fall or
descend. In holding that the plaintiff’s injuries were sufficiently elevation-related to satisfy
section 240(1), the Runner court defined the relevant inquiry as “whether the harm flows directly

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from the application of the force of gravity to the object.” The Runner court answered the
question in the affirmative, citing to “the weight of the object and the amount of force it was
capable of generating, even over the course of a relatively short descent.” Id. at 605; accord
Wilinski, 18 N.Y.3d at 10. Thus, the Runner court treated the term “force of gravity” as meaning
the force generated by the interaction between the weight of the object and its descent. See also

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Strangio v. Sevenson Env. Servs., 15 N.Y.3d 914, 915 (2010) (reinstating section 240(1) claim
where plaintiff was struck in face by handle of scaffold hoist during scaffold’s unchecked
descent), modifying 905 N.Y.S.2d 729 (4th Dep’t 2010). The Runner court added that “the injury
to plaintiff was every bit as direct a consequence of the descent of the reel as would have been an
injury to a worker positioned in the descending reel’s path.” Implicit in the Runner decision,
therefore, is the assumption that the risk that must be protected against is the uncontrolled or
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inadequately controlled fall or descent of an object. Indeed, the Runner court itself referred to the
case before it as a “falling object case,” which it plainly is. Id. at 604.
This Court does not read Runner as extending section 240(1)’s protection to a worker,
such as plaintiff in the instant case, who is injured by the ordinary operation of gravity while
lifting a heavy object. See Ross, 81 N.Y.2d at 501 (stating that the “special hazards” covered by
section 240(1) “do not encompass any and all perils that may be connected in some tangential
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way with the effects of gravity.”). Because Runner cannot properly be read to eliminate the
element of a fall or descent, it does not support recovery under section 240(1) for an injury
occurring when a worker attempts to lift an inert weight. The Court concludes that plaintiff is not
aided by the fact that he had raised the duct door from a lower level to an elevated height; because
there was no fall or descent, his injury did not “directly flow[] from the application of the force of

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gravity to an object or person” within the meaning of Runner and other New York high court
authority. Runner, 13 N.Y.3d at 604 (quoting Ross, 81 N.Y.2d at 501); see Wilinski, 18 N.Y.3d at
10.
The Court finds no genuine issue with regard to any material fact. Defendants are entitled
to judgment as a matter of law. Based on this holding, the Court does not reach the other issues
raised on the motions.

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CONCLUSION
It is therefore
ORDERED that plaintiff’s motion (Dkt. No. 24) for partial summary judgment on the
issue of liability is denied; and it is further

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ORDERED that defendants’ motion (Dkt. No. 25) for summary judgment dismissing the
action is granted. The Clerk shall enter judgment accordingly.
IT IS SO ORDERED.
Date: August 1, 2014
Syracuse, New York

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