Homeowner Not Liable for Construction-Related Death—Criteria for Homeowner’s Exemption and Supervisory Control by Homeowner Described in Some Depth

The Third Department determined the homeowner was not liable to plaintiff’s decedent (under Labor Law 200, 240, 241 (6) or common law negligence) based on the homeowners’ exemption and absence of supervision (by the homeowner) of plaintiff’s decedent’s work.  The homeowner had provided architectural plans to a contractor for an addition to the home.  Plaintiff’s decedent was digging a trench for the basement and was buried and killed when the walls of the trench collapsed.  The court explained the applicable law in unusual detail:

Although Labor Law §§ 240 (1) and 241 “impose nondelegable duties upon contractors, owners and their agents to comply with certain safety practices for the protection of workers engaged in various construction-related activities” …, the Legislature carved out an exception for “owners of one and two-family dwellings who contract for but do not direct or control the work” (Labor Law §§ 240 [1]; 241 [6]…). “In this context, the phrase direct or control is to be strictly construed and, in ascertaining whether a particular homeowner’s actions amount to direction or control of a project, the relevant inquiry is the degree to which the homeowner supervised the method and manner of the actual work being performed by the [injured] party” … . That is, “the owner must significantly participate in the project before he or she will be deemed to have crossed the line from being a legitimately concerned homeowner to a de facto supervisor” who is not entitled to the exemption … . * * *

…[U]nder established case law, “neither providing site plans, obtaining a building permit, hiring contractors, purchasing materials, offering suggestions/input, inspecting the site, retaining general supervisory authority, performing certain work, nor physical presence at the site, operates to deprive a homeowner of the statutory exemption — so long as the homeowner did not exercise direction or control over the injury-producing work” … . …

We reach a similar conclusion with respect to plaintiff’s Labor Law § 200 claim, which codifies the common-law duty of owners and general contractors “to maintain a safe construction site” … . As a precondition to the imposition of liability upon defendant as a homeowner, “it must be shown that [defendant] exercised supervisory control over [decedent’s] work and had actual or constructive knowledge of the unsafe manner in which the work was being performed” … . “When an alleged defect or dangerous condition arises from [a] contractor’s methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law § 200” … . Even “[t]he retention of general supervisory control, presence at a work site, or authority to enforce safety standards is insufficient to establish the control necessary to impose liability” … . Peck v Szwarcberg, 2014 NY Slip Op 08290, 3rd Dept 11-26-14