In Morris v. Pavarini Construction, a Labor Law § 241(6) action, the First Department granted leave to appeal to the Court of Appeals. This will be the second time that this case and same issue are before the top court. At issue is the interpretation of an Industrial Code provision requiring “forms” to be “braced or tied together so as to maintain position and shape” (12 NYCRR 23-2.2[a]).
Adding to the difficulty is ambiguous word usage. The plaintiff contends that the object that fell on his hand is a “form.” What fell, however, is one panel of what would make up a two-panel “form” used to contain poured concrete when making concrete walls. Both the part and the whole were referred to as a “form.” And so, the plaintiff argued that the Code includes the “form” that fell on his hand. But, the defendants argued that the Code refers to a completely constructed “form” only.
Previously, in 2006, the Appellate Division unanimously dismissed plaintiff’s case, reasoning that the Industrial Code provision did not apply to a form that was “in the process of being created.” Then, the Court of Appeals granted leave only to decline to interpret the provision because the question could not “be answered on this record.” And so, the matter was remitted for a framed issue hearing to develop an appropriate record as to “the nature of the object that caused the injury” and “whether the words of the regulation can sensibly be applied to anything but completed forms” (emphasis added).
The trial court then held the framed issue hearing and heard from experts on both sides. The trial court granted the defendant’s motion for summary judgment, dismissing the action. The Appellate Division then reversed, searched the record, and granted plaintiff summary judgment in a 4-1 decision.
The majority opined that the provision was not limited to completed forms, noting that “[i]t defies common sense to think that the form could be structurally safe and maintain its final position and shape, if the back wall that anchors the structure is prone to falling over and collapsing because there is no requirement that it ‘be properly braced.’” In granting the plaintiff summary judgment then, the majority concluded that, “[t]he experts all agreed that once upright, the back form wall must be braced to maintain that position. Indeed, that the back wall fell on plaintiff indicates that it did not maintain its position and could not have ultimately maintained its shape, making it clear that it was not ‘properly braced’ as required by the regulation.”
The dissent countered that the provision “can only be read to apply to fully-assembled concrete forms.” In doing so, the dissent looked to the words of the provision (“tie” and “shape” cannot apply to a single wall) and the nature of the neighboring provisions (subdivision [b] of the same subsection calls for inspections of “forms . . . including all braced and other supports during the placing of concrete”). The dissent also argued that the majority gave undue significance to the expert opinions when deciding how to interpret the words of the provision. In short, the dissent argued that the meaning of a statute is a question of law and an expert’s opinion that a partially constructed form should be braced does not answer whether the regulation is what compels that conduct. In other words, plaintiff’s expert can be right that a single wall should be braced, but still not have an action against the defendant under section 241(6).
The Court of Appeals will now have a more developed record and lengthy majority and dissenting opinions on which to hear the case.