     08-4566-cv
     Vasquez v. FCE Industries, Ltd.



 1                       UNITED STATES COURT OF APPEALS
 2
 3                           FOR THE SECOND CIRCUIT
 4
 5                               August Term, 2009
 6
 7
 8   (Argued: August 26, 2009              Decided: September 15, 2009)
 9
10                            Docket No. 08-4566-cv
11
12   - - - - - - - - - - - - - - - - - - - -x
13
14   CIRA BAUTISTA VASQUEZ, individually, on
15   behalf of VICTOR ARTURO MEDINA BAUTISTA,
16   a minor and as Representative of the
17   Estate of GUMERSINDO MEDINA DUARTE,
18   deceased, also known as ARTURO MEDINA
19   DUARTE,
20
21                     Plaintiff-Appellant,
22
23               - v.-
24
25   GMD SHIPYARD CORP.,
26
27                     Defendant-Cross-Claimant-
28                     Cross-Defendant-Appellee.
29
30   ALLIED TRANSPORTATION LLC, as Owner and
31   Operator of T/B ATC 23,
32
33                     Defendant-Cross-Claimant-
34                     Cross-Defendant,
35
36   FCE Industries, Ltd.,
37
38                     Defendant-Cross-Defendant.
39
40   - - - - - - - - - - - - - - - - - - - -x
41
1        Before:          JACOBS, Chief Judge, NEWMAN, Circuit
2                         Judge, and Trager, District Judge.*

3

4        Appeal from a judgment entered after a bench trial in

5    the United States District Court for the Eastern District of

6    New York (Block, J.).     A welder fell to his death while

7    ascending the wall of a tank aboard a vessel in dry dock at

8    the Brooklyn Navy Yard.    The estate and family sued the

9    general contractor, asserting claims under, inter alia, New

10   York’s “Scaffold Law,” N.Y. Labor Law § 240(1).     The

11   district court found that the decedent, in order to let a

12   co-worker descend the same ladder the decedent was using to

13   ascend, had stepped off the ladder, and began climbing up

14   the “angle irons.”    The court dismissed all claims,

15   concluding that the general contractor was not negligent,

16   and was not liable for failing to provide appropriate safety

17   equipment.    We affirm the judgment, and publish this opinion

18   chiefly to clarify that the district court had federal

19   maritime jurisdiction.

20



          *
             The Honorable David G. Trager, United States
     District Court for the Eastern District of New York, sitting
     by designation.
                                     2
 1
 2                                 WENDY FLEISHMAN, Lieff,
 3                                 Cabraser, Heimann & Bernstein
 4                                 LLP, New York, NY, for
 5                                 Appellant.
 6
 7                                 JOSEPH E. DONAT (John F.
 8                                 Gaffney, on the brief) Herzfeld
 9                                 & Rubin, P.C., for Appellee.
10
11
12   Dennis Jacobs, Chief Judge:
13
14       Decedent Gumersindo Medina Duarte (“Medina”) died in a

15   tragic accident while working aboard the Tank Barge ATC 23

16   on January 23, 2007.   The vessel was in a “graving dock,” a

17   species of dry dock, at the Brooklyn Navy Yard.    Medina, who

18   was working on the floor of a tank, needed to get to the

19   upper deck to adjust the regulator for his torch, and began

20   climbing a ladder affixed to the tank wall.     It is

21   undisputed that, immediately prior to his fall, he stepped

22   off the ladder in order to let a co-worker descend.

23       Medina’s estate, wife, and child (all represented by

24   his wife)2 brought suit in the United States District Court

25   for the Eastern District of New York (Block, J.) against the

26   general contractor overseeing repairs to the barge, GMD


          2
             Because Medina’s estate and his child are
     represented by his wife, the parties refer to “plaintiff” in
     the singular. For ease of reference, this opinion does the
     same.
                                    3
1    Shipyard Corp. (“GMD”).3      After a bench trial, the court

2    entered judgment on behalf of GMD on all claims.

3

4                                 BACKGROUND

5        The owner of Tank Barge ATC 23 contracted with

6    defendant GMD to refit it so it could transport a particular

7    kind of oil.       GMD’s subcontractor employed Medina as a part

8    time welder.

9        On the morning of the accident, Medina was welding

10   coils and refit pipes on the floor of the No. 2 starboard

11   tank.       To get to the deck, Medina had to climb two ladders,

12   each approximately twenty feet long.       The first runs from

13   the base of the tank to a small platform, the second from

14   the platform to the deck.      The wall of the tank is

15   reinforced by “angle irons,” lateral projecting fins spaced

16   at regular intervals of two-and-a-half feet from top to

17   bottom.      Each angle iron protrudes between five to eight



             3
             Plaintiff also sued the owner of the ship, Allied
     Transportation LLC, and another company, FCE Industries,
     Ltd. Plaintiff settled with Allied Transportation, and FCE
     Industries never answered the complaint. According to GMD
     and Allied Transportation, FCE Industries is no longer in
     existence. See Vasquez v. FCE Indus. Ltd., No. 07 cv
     1121(FB), 2008 WL 4224396, at *1 n.1 (E.D.N.Y. Sept. 10,
     2008).
                                       4
1    inches from the wall.     See Vasquez v. FCE Indus. Ltd., No.

2    07 cv 1121(FB), 2008 WL 4224396, at *1 (E.D.N.Y. Sept. 10,

3    2008).

4        Medina began ascending the first ladder while a co-

5    worker, Mario Concepcion, was descending from the platform.

6    Medina and Concepcion met approximately six to eight feet

7    from the bottom of the tank.    To let Concepcion pass, Medina

8    stepped off the ladder onto an angle iron.

9        The precise sequence of subsequent events is disputed.

10   At a bench trial, the district court found the facts to be

11   as follows:

12            Rather than return to the tank floor and
13            wait for Concepcion to finish descending,
14            Medina moved laterally off the ladder and
15            stepped onto one of the angle irons that
16            provided structural support to the tank
17            wall. Then, instead of waiting for
18            Concepcion to pass him and then returning
19            to the ladder, Medina began climbing up
20            the tank wall itself by means of the
21            angle irons. Moments after passing
22            Concepcion, Medina lost his grip and fell
23            from the angle irons to the floor of the
24            tank [and died].
25
26   2008 WL 4224396, at *2.

27       Plaintiff does not dispute that Medina moved off the

28   ladder, but maintains that there was insufficient evidence

29   for the court to conclude that Medina actually “began


                                     5
1    climbing up” the angle irons.

2        On the basis of its factual finding, the district court

3    dismissed all plaintiff’s causes of action, holding, inter

4    alia, that Medina’s injury was not caused by a dangerous

5    condition on the premises (Labor Law § 200); that GMD was

6    not required to provide additional safety devices under New

7    York’s Scaffold Law (Labor Law § 240(1)); and that the New

8    York Industrial Code provision regarding “hazardous

9    openings” (Labor Law § 241(6)) was inapplicable.

10

11                             DISCUSSION

12       In reviewing a judgment entered after a bench trial, we

13   are to “give due regard to the trial court’s opportunity to

14   judge the witnesses’ credibility,” and we “must not . . .

15   set aside” findings of fact “unless [they are] clearly

16   erroneous.”   Fed. R. Civ. P. 52(a)(6); see also Anderson v.

17   Bessemer City, 470 U.S. 564, 573-74 (1985).   “Under this

18   standard, factual findings by the district court will not be

19   upset unless we are ‘left with the definite and firm

20   conviction that a mistake has been committed.’”    FDIC v.

21   Providence College, 115 F.3d 136, 140 (2d Cir. 1997)

22   (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395


                                     6
1    (1948)).   “Where there are two permissible views of the

2    evidence, the factfinder’s choice between them cannot be

3    clearly erroneous.”   Anderson, 470 U.S. at 574.    We review

4    conclusions of law, and the application of the law to the

5    facts, de novo.    See, e.g., Henry v. Champlain Enters.,

6    Inc., 445 F.3d 610, 617-18, 623 (2d Cir. 2006).

7                                   I

8        Although the parties do not contest our jurisdiction,

9    we are obliged to ascertain it independently.      See, e.g.,

10   Joseph v. Leavitt, 465 F.3d 87, 89 (2d Cir. 2006) (“[W]e

11   have an independent obligation to consider the presence or

12   absence of subject matter jurisdiction sua sponte.”).

13       The Constitution extends federal judicial power “to all

14   Cases of admiralty and maritime Jurisdiction.”     U.S. Const.

15   art. III, § 2.    Congress has codified admiralty and maritime

16   jurisdiction at 28 U.S.C. § 1333(1), which gives federal

17   district courts “original jurisdiction . . . of . . . [a]ny

18   civil case of admiralty or maritime jurisdiction . . . .”

19   Id.; see also Jerome B. Grubart, Inc. v. Great Lakes Dredge

20   & Dock Co., 513 U.S. 527, 531-32 (1995); LeBlanc v.

21   Cleveland, 198 F.3d 353, 356 (2d Cir. 1999).     “The primary

22   purpose of federal admiralty jurisdiction is to ‘protect[ ]


                                    7
1    commercial shipping’ with ‘uniform rules of conduct.’”

2    LeBlanc, 198 F.3d at 356 (quoting Sisson v. Ruby, 497 U.S.

3    358, 362 (1990) (internal quotations omitted)).

4        Historically, admiralty jurisdiction over torts

5    depended solely upon the locality of the wrong--“[i]f the

6    wrong occurred on navigable waters, the action [was] within

7    admiralty jurisdiction; if the wrong occurred on land, it

8    [was] not.”     Executive Jet Aviation, Inc. v. City of

9    Cleveland, 409 U.S. 249, 253 (1972).     In Executive Jet, the

10   Supreme Court modified this “purely mechanical application

11   of the locality test,” and held that “the wrong [must also]

12   bear a significant relationship to traditional maritime

13   activity”--the nexus test.     Id. at 261, 268.

14       Thus, we now apply a two-part test for determining when

15   a tort action falls within the federal courts’ admiralty

16   jurisdiction.    First, the alleged tort must have occurred on

17   or over “navigable waters.”     Grubart, 513 U.S. at 534.

18   Second, the activity giving rise to the incident must have

19   had a substantial relationship to traditional maritime

20   activity, such that the incident had a potentially

21   disruptive influence on maritime commerce.        Id.

22       A. Navigable Waters


                                     8
1        Medina’s fall occurred while the ATC 23 was being

2    repaired in a “graving dock.”       A graving dock is “a

3    permanent structure on land with gates that allow[s] vessels

4    to enter and that then can be closed to drain out the water.

5    In other words it is a dry drydock.”       San Francisco Drydock,

6    Inc. v. Dalton, 131 F.3d 776, 777 (9th Cir. 1997); see also

7    J.M.L. Trading Corp. v. Marine Salvage Corp., 501 F. Supp.

8    323, 326 n.2 (E.D.N.Y. 1980) (“A graving dock looks like a

9    huge, concrete bathtub sunk into the ground . . . . When

10   repairs are completed, workers flood the dock until the

11   water reaches the same level as the water outside the gate.

12   It is opened and the ship leaves.”).       There are three types

13   of dry docks: “(1) A floating dry dock, as its name makes

14   clear, floats on the water, the vessel resting on the bottom

15   of the dry dock after the water has been removed. (2) A

16   graven dry dock is dug into the land. The vessel floats in

17   but rests on land once the water has been pumped out. (3)

18   Finally there is the marine railway, on which the vessel is

19   drawn out of the water, instead of the water being drawn

20   away from the vessel.”   Avondale Marine Ways v. Henderson,

21   346 U.S. 366, 367 (1953) (Burton, J., concurring).

22       The water in a graving (or graven) dock is temporarily


                                     9
1    removed so that a ship under repair comes to rest on dry

2    land, but the temporary absence of water does not defeat

3    federal maritime jurisdiction.     In The Robert W. Parsons,

4    191 U.S. 17, 33-34 (1903), the Supreme Court held that a

5    vessel in a “graven dock” remains in navigable waters for

6    purposes of admiralty jurisdiction, even when the water is

7    removed: “as all serious repairs upon the hulls of vessels

8    are made in drydock, the proposition that such repairs are

9    made on land would practically deprive the admiralty courts

10   of their largest and most important jurisdiction in

11   connection with repairs.   No authorities are cited for this

12   proposition, and it is believed that none such exist.”     Id.

13       The Supreme Court reaffirmed the point in Simmons v.

14   The Steamship Jefferson, in which it compared a ship in a

15   graven dock to one at a pier when the water temporarily

16   recedes at low tide:

17            In reason, we think it cannot be held
18            that a ship or vessel employed in
19            navigation and commerce is any the less a
20            maritime subject within the admiralty
21            jurisdiction when, for the purpose of
22            making necessary repairs to fit her for
23            continuance in navigation, she is placed
24            in a dry dock and the water removed from
25            about her, than would be such a vessel if
26            fastened to a wharf in a dry harbor,
27            where, by the natural recession of the
28            water by the ebbing of the tide, she for

                                   10
1             a time might be upon dry land.
2
3    215 U.S. 130, 142 (1909).   See also In re Paradise Holdings,

4    Inc., 795 F.2d 756 (9th Cir. 1986) (admiralty jurisdiction

5    extends to shallow, non-navigable waters that are within the

6    ebb and flow of the tide); Hassinger v. Tideland Elec.

7    Membership Corp., 781 F.2d 1022, 1026 (4th Cir. 1986)

8    (“Admiralty jurisdiction in America therefore extends to all

9    areas within the ebb and flow of the tide, regardless of

10   whether those areas are actually covered by water at the

11   time of the alleged event.”); but see McElheney v. Workers’

12   Comp. Appeal Bd., 940 A.2d 351, 359, 596 Pa. 48, 60 (Pa.

13   2008).

14       We have no reason to question the currency of The

15   Robert W. Parsons and The Steampship Jefferson.    These cases

16   “may be old, but they are old precedent, and we are bound to

17   follow them.”   Sea Vessel, Inc. v. Reyes, 23 F.3d 345,

18   348–49 (11th Cir. 1994).    In Sea Vessel, for instance, the

19   Eleventh Circuit found “no authority that would compel this

20   court to question the[ir] continued vitality,” and concluded

21   that a ship in a dry dock is “in or on navigable waters for

22   purposes of admiralty jurisdiction.”    Id.   As the Eleventh

23   Circuit concluded: Supreme Court precedent, common practice,


                                    11
1    and logic all compel the conclusion that a ship in a

2    “graving” or “graven” dock is still in “navigable waters”

3    for purposes of federal admiralty jurisdiction even though

4    water may have been temporarily removed.

5        B. Nexus to Traditional Maritime Activity

6        The next question is whether the refitting of a ship in

7    dry dock has a substantial relationship to traditional

8    maritime activity.   In answering this question, “[a] court,

9    first, must assess the general features of the type of

10   incident involved to determine whether the incident has a

11   potentially disruptive impact on maritime commerce.      Second,

12   a court must determine whether the general character of the

13   activity giving rise to the incident shows a substantial

14   relationship to traditional maritime activity.”      Grubart,

15   513 U.S. at 534 (internal quotations and citations omitted);

16   see also Sisson, 497 U.S. at 364.

17       The first assessment looks to “potential effects, not

18   to the particular facts of the incident, . . . whether the

19   general features of the incident [a]re likely to disrupt

20   commercial activity.”   Grubart, 513 U.S. at 538 (internal

21   quotations and citations omitted.)   We consider a

22   “description of the incident at an intermediate level of


                                   12
1    possible generality.”    Id.   In this case, there is little

2    question that this kind of accident–-the death of persons

3    repairing and refitting a vessel–-has a potentially

4    disruptive effect on maritime commerce.

5           The second assessment looks to “whether the general

6    character of the activity giving rise to the incident shows

7    a substantial relationship to traditional maritime

8    activity.”    Grubart, 513 U.S. at 539.   The “general

9    features” of an activity are ascertained by the “general

10   conduct from which the incident arose.”     Sisson, 497 U.S. at

11   364.    “General conduct” is not particular conduct.      In

12   Sisson, for example, suit arose from a fire aboard a

13   pleasure yacht while it was docked at a marina.     The

14   “general conduct” was held to be the “storage and

15   maintenance” of vessels at marinas: “We need not ascertain

16   the precise cause of the fire to determine what ‘activity’

17   [the boat owner] was engaged in, rather, the relevant

18   activity was the storage and maintenance of a vessel at a

19   marina on navigable waters.”    Sisson, 497 U.S. at 365.       At

20   that level of generality, the general conduct of storing and

21   maintaining vessels was clearly a “common, if not

22   indispensable, maritime activity.”    Sisson, 497 U.S. at 367.


                                     13
1        As in Sisson, the general conduct in this case is the

2    repair and maintenance of a vessel, just as obviously an

3    “indispensable” and “traditional” maritime activity.

4        Therefore, we conclude that the activity giving rise to

5    the incident had a substantial relationship to traditional

6    maritime activity such that the incident had a potentially

7    disruptive influence on maritime commerce.    The district

8    court had maritime jurisdiction.

9                                   II

10       On appeal, plaintiff challenges four aspects of the

11   district court’s judgment.

12       A. Fact-Finding.    Plaintiff challenges the finding that

13   the accident occurred when Medina “began climbing up” the

14   angle irons.

15       Both the eye-witnesses gave trial testimony that

16   conflicted with their prior statements.    Martin Fernandez

17   had earlier said that Medina fell when he began climbing the

18   angle irons; but at trial, Fernandez said that Medina fell

19   from the angle irons, but that Medina had never attempted to

20   climb them.    Mario Concepcion, who was climbing down the

21   ladder while Medina was climbing up, signed an earlier

22   statement to the effect that Medina fell from the angle


                                    14
1    irons; but at trial, he said he was unsure exactly how

2    Medina fell or where Medina fell from.   Plaintiff argues

3    that these witnesses’ prior statements were hearsay, only

4    admissible for impeachment, and the court improperly relied

5    on them for the truth of the matter asserted.   See Santos v.

6    Murdock, 243 F.3d 681, 684 (2d Cir. 2001).

7        But even excluding the earlier statements given by

8    Fernandez and Concepcion, the evidence was confused as to

9    exactly where Medina was standing, how he fell, or whether

10   he in fact was attempting to climb up the angle irons.      In

11   light of this uncertainty, we disregard the district court’s

12   finding that Medina began climbing up the tank wall right

13   before he fell and instead rely on the fully supported,

14   implicit finding that Medina fell after he stepped off the

15   ladder on to an angle iron, whether or not he was ascending

16   the tank wall by means of the angle irons.

17       B. Labor Law § 200 (common law negligence).   The common

18   law negligence claim, under Labor Law § 200, was dismissed

19   on grounds that no GMD employee directly supervised or

20   controlled the manner of Medina’s work, and that Medina’s

21   injury was not caused by a “dangerous condition” on the




                                  15
1   premises. 4

2        Section 200 requires owners and general contractors on

3   construction sites (including barges and docks 5 ) “to provide

4   reasonable and adequate protection . . . to the persons

5   employed therein or lawfully frequenting such places.”      N.Y.

6   Lab. Law § 200(1).   But it does not require “an owner to

7   secure the safety of his servant against a condition, or

8   even defects, risks or dangers that may be readily observed

9   by the reasonable use of the senses, having in view the age,


         4
            Since Medina was injured in navigable waters,
    maritime law governs his claims. See Becker v. Poling
    Transp. Corp., 356 F.3d 381, 388 (2d Cir. 2004). But,
    “federal maritime law incorporates common law negligence
    principles generally, and New York law in particular.” Id.
    (citing Int’l Ore & Fertilizer Corp. v. SGS Control Servs.,
    Inc., 38 F.3d 1279, 1284 (2d Cir. 1994)). With respect to
    maritime torts, a “State may modify or supplement the
    maritime law by creating liability which a court of
    admiralty will recognize and enforce when the state action
    is not hostile to the characteristic features of the
    maritime law or inconsistent with federal legislation.”
    Just v. Chambers, 312 U.S. 383, 388 (1941). Here, neither
    party contends that the New York statutes in question are
    hostile to the characteristic features of the maritime law,
    or inconsistent with federal legislation. Hence we assume,
    without deciding, that the relevant New York Labor Law
    provisions apply.
         5
            Barges and docks may be deemed construction sites
    for the purposes of Labor Law § 200. See O’Hara v. Weeks
    Marine, Inc., 294 F.3d 55, 68 n.8 (2d Cir. 2002) (citing
    Cammon v. City of New York, 95 N.Y.2d 583, 590, 744 N.E.2d
    114, 119 (2000) and Rigopoulos v. State, 236 A.D.2d 459,
    460, 653 N.Y.S.2d 667, 699 (2d Dep’t 1997)).
                                  16
1    intelligence and experience of the servant.”   Gasper v. Ford

2    Motor Co., 13 N.Y.2d 104, 110, 205 N.E.2d 163 (1963)

3    (internal quotations omitted); see also Russin v. Louis N.

4    Picciano & Son, 54 N.Y.2d 311, 316-17, 429 N.E.2d 805, 807

5    (1981) (“Section 200 of the Labor Law merely codified the

6    common-law duty imposed upon an owner or general contractor

7    to provide construction site workmen with a safe place to

8    work.”).   Owners and general contractors may be liable under

9    § 200 if they “supervised or controlled the work performed

10   or had actual or constructive notice of the unsafe condition

11   which precipitated plaintiff’s injury.”   Bailey v. Irish

12   Dev. Corp., 274 A.D.2d 917, 921, 711 N.Y.S.2d 241, 245 (3d

13   Dep’t 2000 ) .

14        The record evidence supports the district court’s

15   rulings [i] that GMD did not supervise or control the way

16   Medina climbed the ladder, and [ii] that the ladder was not

17   in itself a “dangerous condition.”   Vasquez, 2008 WL

18   4224396, at *4–6.

19        Under the “supervision or control” wording of § 200,

20   liability attaches only where the general contractor

21   “controlled the manner in which the plaintiff performed his

22   or her work, i.e., how the injury-producing work was



                                   17
1    performed.”     Hughes v. Tishman Constr. Corp., 40 A.D.3d 305,

2    306, 836 N.Y.S.2d 86, 89 (1st Dep’t 2007) (emphasis

3    omitted).     There is no evidence that GMD (or other entities)

4    supervised Medina’s ascent up the ladder. 6   As to whether

5    the ladder was a dangerous condition, plaintiff failed to

6    show that the ladder was defective.     See Mollano v. RC

7    Dolner Constr. Co., No. 11010/06, 2008 WL 787262

8    (N.Y.Sup.Ct. Feb. 20, 2008) (“In this case the ladder was

9    clearly visible and by the reasonable use of one’s senses

10   was an obvious condition. Moreover, . . . such ladder was

11   [not] defective in any way.     Thus, the ladder was not a

12   dangerous condition as a matter of law.” (citation

13   omitted)).     In any event, the accident happened only after

14   Medina left the ladder for the dangerous footing of the

15   angle irons.

16       C. Scaffold law.     Plaintiff challenges the dismissal of

17   her claim under New York’s “Scaffold Law,” Labor Law §


          6
             Plaintiff’s contention that GMD regularly inspected
     the tank to confirm whether the ladders were serviceable is
     beside the point. An inspection would not reveal that the
     ladder was being used, or misused, as it was by decedent.
     And, even if Martin Fernandez testified that it was common
     practice for the workers in the tank to stand on the angle
     irons, plaintiff concedes that GMD’s safety director “never
     observed multiple men traveling up and down the ladders.”
     Appellants Br. at 10.
                                     18
1    240(1), arguing that Medina was never trained on how to use

2    the ladder, or that he should have been provided with

3    alternative safety equipment (such as a harness).

4        New York’s “Scaffold Law,” provides absolute liability

5    to owners and general contractors for failing to provide

6    adequate safety equipment in the face of elevation risks:

 7            All contractors and owners and their
 8            agents, . . . in the . . . repairing,
 9            altering, painting, cleaning or pointing
10            of a building or structure shall furnish
11            . . . for the performance of such labor,
12            scaffolding, hoists, stays, ladders,
13            slings, hangers, blocks, pulleys, braces,
14            irons, ropes, and other devices which
15            shall be so constructed, placed and
16            operated as to give proper protection to
17            a person so employed.
18
19   N.Y. Labor Law § 240(1) (McKinney 2009).    Liability under §

20   240(1) is limited to accidents related to the inherent

21   effects of gravity.    Rocovich v. Consol. Edison Co., 78

22   N.Y.2d 509, 513, 583 N.E.2d 932, 934 (1991).    Although

23   liability is absolute, the plaintiff has the burden of

24   showing causation.    See Blake v. Neighborhood Hous. Servs.

25   of N.Y. City, Inc., 1 N.Y.3d 280, 287-89, 803 N.E.2d 757,

26   760-63 (2003) (stating that “the phrase ‘strict (or

27   absolute) liability’ in the Labor Law § 240(1) context is

28   different from the use of the term elsewhere” and explaining



                                    19
1    that section 240(1) requires proof of causation); Artoglou

2    v. Gene Scappy Realty Corp., 57 A.D.3d 460, 461, 869

3    N.Y.S.2d 172, 175 (2d Dep’t 2008) (“the defect, or the

4    failure to secure the ladder, was a substantial factor in

5    causing the plaintiff’s injuries.”).

6        We agree with the district court that, even assuming

7    that the defendant had failed to provide an adequate safety

8    device, plaintiff has not carried her burden of showing that

9    Medina’s injury was caused by any such inadequacy.     Medina

10   himself deliberately stepped off the ladder onto the angle

11   irons, thus abandoning the device that was provided for his

12   safety.   See Meade v. Rock-McGraw, Inc., 307 A.D.2d 156,

13   159, 760 N.Y.S.2d 39, 42 (1st Dep’t 2003) (“That the ladder

14   was inadequately secured was due to plaintiff’s improper use

15   of it, which would not give rise to a Labor Law

16   violation.”).

17       D. Labor Law § 241(6).   Finally , plaintiff challenges

18   the dismissal of her claim under Labor Law § 241(6).     To

19   state a claim under Labor Law § 241(6), a plaintiff must

20   allege a violation of the New York Industrial Code.     See

21   Ross v. Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d 494,

22   501-02, 618 N.E.2d 82 (1993); Misicki v. Caradonna, 12


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1    N.Y.3d 511, –-N.E.2d–- (2009).      The Code violation,

2    moreover, must be grounded upon a breach of a “specific,

3    positive command,” rather than a “reiteration of common-law

4    standards.”    Id., 81 N.Y.2d at 504.   Here, plaintiff alleged

5    a violation of 12 N.Y.C.R.R. § 23-1.7(b)(1), which addresses

6    “hazardous opening[s] into which a person may step or fall.”

7    The regulation requires that such hazardous openings be

8    “guarded by a substantial cover fastened in place or by a

9    safety railing . . . .”    12 N.Y.C.R.R. § 23-1.7(b)(1)(i).

10   If workers are required to work near the edge of such an

11   opening, they must be protected by life nets, safety belts,

12   or planking.    12 N.Y.C.R.R. § 23-1.7(b)(1)(iii).

13       We agree with the district court that 12 N.Y.C.R.R. §

14   23-1.7(b)(1) is inapplicable to the facts of this case.      See

15   2008 WL 4224396, at *10.    Ample New York authority holds

16   that § 23-1.7 does not apply to falls from ladders or

17   staircases.    See, e.g., Smith v. McClier Corp., 38 A.D.3d

18   322, 323, 831 N.Y.S.2d 413, 414 (1st Dep’t 2007) (“a

19   staircase is not considered a ‘hazardous opening’”); Riccio

20   v. NHT Owners, LLC, No. 32163/04, 2006 WL 2689702, at *1, *8

21   (Sup. Ct. Kings County Aug. 23, 2006) (holding that where

22   plaintiff “fell from near the top of an A-frame, fiberglass


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1    ladder” in an elevator pit, “accident did not involve a fall

2    into a hazardous opening”).

3

4                             CONCLUSION

5        For the foregoing reasons, the judgment of the district

6    court is affirmed.

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