RIVERA, J.
Plaintiffs Joseph Saint and his wife Sheila Saint challenge the dismissal of their claims arising from work-related injuries
According to the undisputed facts, on the day of his injury plaintiff Joseph Saint was part of a three-person construction crew working to replace an advertisement on a billboard located in Erie County. The billboard is elevated approximately 59 feet from the ground, and composed of a two-sided metal frame constructed in an inverted "V" shape, facing east and west, and set on a metal tube embedded in the ground. Each side of the metal frame is approximately 14 by 48 feet in size, and covered by a series of panels which are secured to the frame by iron clips called "stringers." Each side accommodates an advertisement made of vinyl material which is attached to the panels with ratchet straps.
The billboard has six catwalks used by workers when removing and installing advertisements. Two catwalks are located on the exterior, one on each side of the metal frame. The other four catwalks are located on the interior of the V frame, with a lower and upper catwalk on each side, set 10 feet apart vertically. Workers access the upper and lower catwalks by a ladder elevated several feet from the ground and attached externally to the metal tube. All the catwalks have safety cables, but only the platform connecting the two exterior catwalks has a guardrail.
Plaintiff and the other members of the construction crew were working on the installation of a new advertisement which necessitated the attachment of additions to the existing frame. These additions are referred to as "extensions," and are plywood cutouts shaped to accommodate the advertisement's artwork in cases where text or a picture exceeds the boundaries of the billboard's frame. For example, if the advertisement included a person with a raised arm and the arm extends past the edge of the top or the sides of the billboard, an extension shaped like an arm would be crafted from plywood and the
Plaintiff was working with the other crew members on an advertisement which required the attachment of four extensions. The extensions had been constructed in advance and transported to the billboard structure the day plaintiff was injured. During the course of their work, plaintiff and the construction crew used a crane operated by the plaintiff to raise the extensions along the outer side of the structure and onto the billboard's lower outer catwalk. The billboard frame did not contain existing extensions that required removal, so once the new advertisement's extensions were hoisted onto the catwalk the crew proceeded directly to the removal of the old advertisement vinyl. The job required that the crew move the old advertisement from one side of the frame to the other. Thus, the crew detached the advertisement vinyl from the panels facing the west side, and threw it down to the ground. They then began the process of moving the vinyl from the east-side facing panels in order to pull it up, around, and over the metal frame so that it fell onto the panels facing towards the west, where the vinyl would then be attached to the frame. The crew members were at different locations on the upper and lower catwalks as they worked on removing the old vinyl.
Had the job gone without disruption, after the crew removed the old vinyl they would slide metal rods into pockets around the perimeter of the new vinyl advertisement and then use ratchet straps to secure the new advertisement to the panels. The crew would then bolt the extensions' angle irons to the stringers, to hold the extensions in place on the billboard frame. However, plaintiff fell and was injured while the crew was attempting to move the vinyl from the east side panels over the top of the frame and onto the west side panels.
Plaintiff was on the front catwalk when he heard the other crew members call for assistance because they were having difficulty due to the day's wind conditions. Plaintiff went to the upper rear catwalk to assist them, and in order to get around one of the crew members, plaintiff detached his lanyard from the catwalk's safety cable. Before he was able to reattach the lanyard, a strong wind gust caused the vinyl to strike plaintiff in the chest, knocking him 10 feet below onto the lower rear
Plaintiffs sued defendant Syracuse Supply Company, owner of the property where the billboard is located, alleging violations of Labor Law §§ 240 (1), (2) and 241 (6), and derivative claims for plaintiff Sheila Saint's loss of support, consortium, and expenses related to Joseph Saint's medical bills.
The Appellate Division reversed and granted summary judgment for defendant and dismissed the amended complaint (Saint v Syracuse Supply Co., 110 A.D.3d 1470 [4th Dept 2013]). Relying in part on this Court's decisions in Joblon v Solow (91 N.Y.2d 457 [1998]) and Munoz v DJZ Realty, LLC (5 N.Y.3d 747 [2005]), the Appellate Division concluded that plaintiff's work on the billboard did not constitute altering the building or structure for purposes of Labor Law § 240, and instead was "more akin to cosmetic maintenance or decorative modification" (Saint, 110 AD3d at 1471). The Court also concluded plaintiff was not engaged in construction work within the meaning of section 241 (6) (id.). We granted plaintiffs leave to appeal (22 N.Y.3d 866 [2014]), and now reverse.
Labor Law § 240 (1) provides,
The "purpose of the statute is to protect workers by placing ultimate responsibility for safety practices on owners and contractors instead of on workers themselves" (Panek v County of Albany, 99 N.Y.2d 452, 457 [2003], citing Martinez v City of New York, 93 N.Y.2d 322, 325-326 [1999], and Zimmer v Chemung County Performing Arts, 65 N.Y.2d 513, 520 [1985]). To that end, section 240 (1) "is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed" (Panek, 99 NY2d at 457, citing Gordon v Eastern Ry. Supply, 82 N.Y.2d 555, 559 [1993]). Therefore, the Court has made clear that section 240 (1) imposes on owners or general contractors and their agents a nondelegable duty, and absolute liability for injuries proximately caused by the failure to provide appropriate safety devices to workers who are subject to elevation-related risks (see Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 513 [1991]).
Plaintiff claims that he comes within the coverage of section 240 (1) because he physically altered the billboard by installing extensions that changed the physical shape of the structure. Defendant responds that plaintiff's injuries are outside the scope of the Labor Law because at the time of plaintiff's fall he was not engaged in the installation or removal of extensions. In any event, according to defendant, plaintiff's work was not an alteration because changing the vinyl advertisement is a routine maintenance activity, and any alleged change to the structure was not permanent in nature.
In determining whether plaintiff Joseph Saint was engaged in the type of work covered by section 240 (1), we first consider defendant's contention that we should limit our analysis of plaintiff's activity to the moment of his injury. The Court previously rejected this narrow construction of the statute's application in Prats v Port Auth., of N.Y. & N.J., because "it is neither pragmatic nor consistent with the spirit of the statute to isolate the moment of injury and ignore the general context of the work" (100 N.Y.2d 878, 882 [2003]). Thus, in Prats the Court
Defendant's interpretation would compartmentalize a plaintiff's activity and exclude from the statute's coverage preparatory work essential to the enumerated act. This construction of the Labor Law is exactly what the Court sought to avoid by Prats's contextualized analysis, and would strip workers of the "exceptional protection that section 240 (1) provides" (Rocovich, 78 NY2d at 514). We therefore reject an interpretation unsupported by the case law and which does no more than undermine the statutory purpose of protecting workers from dangers inherent to tasks involving elevation differentials (see e.g. Robinson v City of New York, 22 A.D.3d 293, 293-294 [1st Dept 2005]; Fitzpatrick v State of New York, 25 A.D.3d 755, 757 [2d Dept 2006]; Randall v Time Warner Cable, Inc., 81 A.D.3d 1149, 1151 [3d Dept 2011]).
Applying this standard, we conclude that plaintiff was engaged in work that constitutes an alteration within the meaning of the statute. In reaching this determination we apply the definition the Court adopted in Joblon, that the term "altering" in section 240 (1) "requires making a significant physical change to the configuration or composition of the building or structure" (Joblon, 91 NY2d at 465). This definition excludes "routine maintenance" and "decorative modifications" (id.). Whether a physical change is significant depends on its effect on the physical structure. Thus, the Court held that the plaintiff in Joblon who was injured when he fell off a ladder while in the process of chiseling a hole through a concrete block wall so that he could run electrical wires from one room to another to install a wall clock was engaged in "altering" under section 240 (1). As the Court held, extending the wiring and chiseling a hole through the concrete constituted a significant change and entailed "more than a simple, routine activity" (id. at 465-466).
Here, plaintiff's job was to install a new advertisement. In order to do so he and the other members of the construction
Moreover, plaintiff's facts differ from those of prior cases where the Court found the injured worker's activity constituted routine maintenance, and thus was outside the coverage of the statute. Those cases involved simple tasks, involving minimal work. In comparison, the removal of an old advertisement and the installation of vinyl-covered plywood extensions for the purpose of enlarging the shape of the billboard to accommodate the new advertisement's artwork involves the type of physical change significant enough to constitute a section 240 (1) alteration, and to distinguish plaintiff's work from routine maintenance illustrated by the changing of a lightbulb, as in the case of Smith v Shell Oil Co. (85 N.Y.2d 1000, 1002 [1995]), the replacement of air conditioning components damaged in the course of normal wear and tear, as in Esposito v New York City Indus. Dev. Agency (1 N.Y.3d 526, 528 [2003]), household window cleaning, like that involved in Brown v Christopher St. Owners Corp. (87 N.Y.2d 938, 939 [1996]), or the routine, annual inspection of an elevator in Nagel v D & R Realty Corp. (99 N.Y.2d 98, 99 [2002]).
Nor, on the facts of this case, is the installation of the new advertisement a "decorative modification" because the work here entails far more than a mere "change[] [to] the outward appearance of the billboard" (Munoz, 5 NY3d at 748). Instead, the job requires a change to the billboard's size and an adjustment of the frame to accommodate the unique shape of the advertisement. Moreover, any change to the billboard frame ensures that a future installation of a new advertisement would require a subsequent alteration of the billboard's structure. That is to say, if the new advertisement did not require extensions
Although plaintiff's job title is irrelevant to our analysis because we must focus on the actual work in which he was engaged (Joblon, 91 NY2d at 465-466), we note that plaintiff's activities bear out his designation as a construction crew member, and further support our conclusion that he was employed in the type of work covered by section 240 (1). Plaintiff operated the crane used to hoist the extensions. The installation of the new advertisement involved heavy lifting, and the attachment of wood and vinyl to a metal frame several feet above the ground.
We are unpersuaded by defendant's argument that Munoz v DJZ Realty, where the Court concluded that an employee injured while working on a billboard was not involved in "alteration" for purposes of section 240(1), is dispositive of plaintiff's case. In Munoz, the plaintiff was applying pre-pasted sheets to a billboard which the Court concluded merely "changed the outward appearance of the billboard, but did not change the billboard's structure" (Munoz, 5 NY3d at 748). Notably, the Munoz plaintiff denied any assertion that the plastering constituted a change in the shape of the billboard (see brief for plaintiffs at 16 n 9 in Munoz v DJZ Realty, LLC, 5 N.Y.3d 747 [2005]).
Similarly unpersuasive is defendant's argument that plaintiff's work is not an alteration within the meaning of section 240 (1) because the statute applies only to permanent changes.
A requirement that the alteration be permanent would also undermine the worker protection purpose of the statute (see Rocovich, 78 NY2d at 513). Regardless of the duration of the completed work, the worker's task remains the same, and the permanency of the alteration in no way diminishes the risk attendant to that task.
Given the nature of the plaintiff's work on the day of his injury and that the attachment of extensions to the billboard effects a significant change to the structure, plaintiff was engaged in work that constitutes "altering" within the meaning of Labor Law § 240 (1). Dismissal of his claim pursuant to this section was therefore error.
We also find that it was error to dismiss plaintiff's other Labor Law claims. Turning to his section 240 (2) claim, this provision requires, in relevant part, that "[s]caffolding or staging more than twenty feet from the ground or floor ... shall have a safety rail of suitable material properly attached, bolted, braced or otherwise secured...." It is undisputed that the billboard platform was 59 feet above the ground and that there was no safety railing surrounding the upper rear catwalk from
With respect to plaintiff's section 241 (6) claim, we agree with plaintiff that he was engaged in "construction work" and thus within the ambit of the statute. Pursuant to section 241 (6), "All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places." In determining what constitutes "construction" for purposes of the statute we look to the Industrial Code which, as relevant here, defines construction to include alteration of a structure (12 NYCRR 23-1.4 [b] [13]). Since plaintiff was altering the billboard by installing the extension at the time of his injury, his claim comes within section 241 (6).
The defendant and Appellate Division's reliance on Hatfield v Bridgedale, LLC (28 A.D.3d 608 [2d Dept 2006]) in support of the opposite conclusion is misplaced. In Hatfield, the Appellate Division affirmed the dismissal of plaintiff's section 241 (6) claim holding that the section "do[es] not apply to claims arising out of maintenance of a building or structure outside of the construction context" (id. at 610). However, unlike the plaintiff in Hatfield, for the reasons we have already discussed, plaintiff here was altering the billboard's dimensions in order to apply the advertisement, and thus was not engaged in maintenance work.
Accordingly, the Appellate Division order should be reversed, with costs, and defendant's motion for summary judgment denied.
Chief Judge LIPPMAN and Judges READ, PIGOTT, ABDUSSALAAM, STEIN and FAHEY concur.
Order reversed, with costs, and defendant's motion for summary judgment denied.