12-3208-cv
Steinman v. Morton Int'l, Inc.


                  UNITED STATES COURT OF APPEALS
                      FOR THE SECOND CIRCUIT

                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
"SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

           At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
the 10th day of May, two thousand thirteen.

PRESENT:    AMALYA L. KEARSE,
            JOHN M. WALKER, JR.,
            DENNY CHIN,
                      Circuit Judges.

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MICHAEL S. STEINMAN,
                        Plaintiff-Appellant,

                        -v-                                  12-3208-cv

MORTON INTERNATIONAL, INCORPORATED, FKA
Morton Salt Company, FKA New Morton
International, Incorporated, MORTON SALT
COMPANY, a division of Morton
International, Incorporated, NEW MORTON
INTERNATIONAL, INCORPORATED, ROHM AND
HAAS COMPANY, INCORPORATED,
                    Defendants-Third-Party-
                    Plaintiffs-Appellees,
MERZ METAL & MACHINE CORPORATION,
                    Third-Party-Defendant-
                    Appellee.

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FOR PLAINTIFF-APPELLANT:      MICHAEL G. COOPER, Law Office of
                              Michael G. Cooper, Hamburg, New
                              York.

FOR MORTON INTERNATIONAL,     SCOTT R. HAPEMAN, Personius &
INCORPORATED, ET AL.:         Melber LLP, Buffalo, New York.

FOR MERZ METAL & MACHINE      JENNIFER A. EHMAN (Michael F.
CORPORATION:                  Perley, on the brief), Hurwitz &
                              Fine P.C., Buffalo, New York.

         Appeal from the United States District Court for the

Western District of New York (Curtin, J.).

         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the order of the district court is

VACATED to the extent it dismissed plaintiff-appellant Michael

Steinman's claim under § 240(1) of the New York Labor Law

("NYLL"), and we REMAND for further proceedings.

         Steinman appeals from an interlocutory order of the

United States District Court for the Western District of New York

(Curtin, J.), entered November 19, 2010, granting in part

defendants' motion for summary judgment, denying Steinman's

cross-motion for summary judgment, and dismissing his claim

pursuant to NYLL § 240(1).   Steinman brought this action to

recover for injuries he sustained while performing demolition




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work for his employer, third-party-defendant-appellee Merz Metal

& Machine Corp. ("Merz Metal"), at a salt mining facility owned

and operated by defendants-third-party-plaintiffs-appellees

Morton International, Inc. and related entities (collectively,

"Morton").   On appeal, Steinman challenges the district court's

order, which held, inter alia, that his injuries did not involve

the type of elevation-related hazard covered by NYLL § 240(1).

We assume the parties' familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

          We have jurisdiction to review the district court's

interlocutory order pursuant to 28 U.S.C. § 1292(b).1   "We review

de novo the district court's grant of summary judgment."    SEC v.

Obus, 693 F.3d 276, 284 (2d Cir. 2012).

          NYLL § 240(1), commonly known as the "scaffold law,"

imposes strict liability on contractors and building owners for

failure to provide adequate protection to workers from certain




     1
          By order entered June 13, 2012, the district court
certified its November 19, 2010 order for interlocutory appeal,
only with respect to the NYLL § 240(1) claim, on the basis that
the claim involves a controlling question of law as to which
there is a substantial ground for difference of opinion. We
granted leave to appeal.




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elevation-related hazards.2   See Ross v. Curtis-Palmer Hydro-

Elec. Co., 81 N.Y.2d 494, 499-500 (1993).      To establish liability

under the statute, a plaintiff must show:      (1) the existence of

an elevation-related hazard of the type encompassed by the

statute, and (2) an injury proximately caused by the absence of

proper protection from the hazard.   See Wilinski v. 334 E. 92nd

Hous. Dev. Fund Corp., 18 N.Y.3d 1, 7 (2011).

          As discussed below, the district court held that

defendants were entitled to summary judgment because Steinman was

injured by an object that fell from the same level at which he

was working.   In Wilinski, which was decided after the district

court ruled below, the New York Court of Appeals recognized that

its jurisprudence had "evolved over the last two decades" with

respect to the scope of NYLL § 240(1).   Id.    The Court of Appeals

noted that "[s]ome New York courts have interpreted our decision


     2
          NYLL § 240(1) provides in relevant part:

          All contractors and owners and their agents,
          except owners of one and two-family dwellings
          who contract for but do not direct or control
          the work, 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.



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in Misseritti v. Mark IV Constr. Co. (86 NY2d 487 [1995]) to

preclude recovery under Labor Law § 240(1) where a worker

sustains an injury caused by a falling object whose base stands

at the same level as the worker.       We reject that interpretation

. . . ."   Id. at 4-5.   The Wilinski Court held that such a "same-

level" rule was inconsistent with the rule pronounced in the

Court's more recent decisions.     See id. at 9-10.

           The Court of Appeals clarified that "'the single

decisive question is whether plaintiff's injuries were the direct

consequence of a failure to provide adequate protection against a

risk arising from a physically significant elevation

differential.'"   Id. at 10 (emphasis omitted) (quoting Runner v.

N.Y. Stock Exch., Inc., 13 N.Y.3d 599, 603 (2009)).       The Court of

Appeals thus held that an elevation differential of four feet or

of four steps on a stairway could be physically significant,

depending on the weight of the falling object and the amount of

force it was capable of generating in even a relatively short

descent.   See id. (elevation differential of four feet could be

physically significant); Runner, 13 N.Y.3d at 605 (elevation

differential of four steps on a stairway could be physically

significant).

           We apply the law as it exists at the time of appeal.

See, e.g., Parker v. Time Warner Entm't Co., 331 F.3d 13, 20 (2d




                                   5
Cir. 2003).    In light of Wilinski, we conclude that the district

court erred in granting summary judgment to defendants.

            First, in its summary judgment decision, the district

court relied heavily on Misseritti and similar decisions.     The

district court held that NYLL § 240(1) does not apply where the

injuries are caused "by an object falling from the same elevation

level at which the work was being performed."    Steinman v. Morton

Int'l, Inc., 756 F. Supp. 2d 314, 321 (W.D.N.Y. 2010).      Citing

Misseritti, the district court noted that the case law provided

that injuries caused by "the collapse or disintegration of a wall

or similar structure during demolition or construction

activities" were not covered by NYLL § 240(1) if the wall was at

the same level as where the plaintiff was working.    Id.

            Wilinski clarified the law, rejecting the "same level"

rule and holding that the key inquiry is whether there is "a risk

arising from a physically significant elevation differential."

18 N.Y.3d at 10 (emphasis omitted) (quoting Runner, 13 N.Y.3d at

603).   Thus, NYLL § 240(1) can apply even "where the plaintiff

and the base of the object [that fell] stood on the same level."

Id. at 8.   To the extent that the district court interpreted the

case law as holding otherwise, it erred.

            Second, we hold that issues of fact exist as to whether

there was a physically significant elevation differential here.




                                  6
Steinman presented evidence to support a finding that the

structure at issue "fell from a height of somewhere between two

and eight feet above the level of the plywood platform where [he]

was positioned."   Steinman, 756 F. Supp. 2d at 322.   A jury could

reasonably conclude that the two-to-eight-foot distance over

which the portion of the end cap fell was physically significant,

given that it weighed 2000 pounds and generated enough force to

break through the platform on which Steinman was standing.     See

Wilinski, 18 N.Y.3d at 10 (elevation differential of four feet

could be physically significant given amount of force pipes were

capable of generating); Runner, 13 N.Y.3d at 605 (elevation

differential of four steps on stairway could be physically

significant given object weighed 800 pounds and was capable of

generating great force in its descent).

         Moreover, the district court's holding that the

"height" here was irrelevant because the material that fell was

an integrated part of one brick wall on the same level as the

work site is wrong in light of Wilinski; it is the height

differential between the falling object and the plaintiff that

matters, not whether the falling object was part of a larger wall

situated at the same level as the plaintiff.   See Wilinski, 18

N.Y.3d at 9; see also, e.g., Greaves v. Obayashi Corp., 866

N.Y.S.2d 47 (1st Dep't 2008) (injury was within scope of § 240(1)




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where part of concrete wall fell on plaintiff while he stood on

scaffold and worked on another part of the wall); Mendoza v.

Bayridge Parkway Assocs., LLC, 831 N.Y.S.2d 485 (2d Dep't 2007)

(injury was within scope of § 240(1) where stone forming part of

wall fell on plaintiff while he stood on scaffold and worked on

the wall).

         Although Steinman asks this Court to order that summary

judgment be entered in his favor, the record does not warrant

that relief.   Assuming that there was a physically significant

elevation differential, issues of fact exist as to whether

Steinman's injuries were proximately caused by the absence of

proper protection.    See Wilinski, 18 N.Y.3d at 11 (summary

judgment for the plaintiff is not proper unless plaintiff

demonstrates that protective devices could have prevented the

accident, or if defendant demonstrates that no protective devices

were necessary).     On remand, the district court shall consider

whether a jury could reasonably find that adequate protective

devices contemplated by the statute could have been implemented

such that the accident could have been prevented.

         We have considered all of the parties' contentions in

support of their respective requests for summary judgment in

their favor and conclude they are without merit.     Accordingly,




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the district court's order is VACATED to the extent it dismissed

the NYLL § 240(1) claim, and we REMAND for further proceedings.

                        FOR THE COURT:
                        Catherine O'Hagan Wolfe, Clerk




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