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Labor Law 200/Common-Law Negligence Cause of Action Properly Dismissed—City Demonstrated It Did Not Have the Authority to Supervise and Control the Work—Labor Law 241(6) Cause of Action, However, Should Not Have Been Dismissed—Nondelegable Duty to Provide a Safe Workplace

Plaintiff’s hand was crushed by an excavator as he was in a trench directing the operation of the excavator.  The Second Department determined the city’s motion for summary judgment on the Labor Law 200/common-law negligence, and Labor Law 240(1) causes of action was properly granted.  But the Labor Law 241(6) cause of action, based upon an Industrial Code provision (12 NYCRR 23-9.5(c)) prohibiting close proximity to an excavator, should not have been dismissed. Labor Law 241(6) imposes a nondelegable duty to provide a safe workplace and requires compliance with the Industrial Code. The Labor Law 200/common-law negligence causes of action were defeated by the city’s demonstration that it did not have the authority to control, direct or supervise the method or manner in which the relevant work was performed.  The Labor Law 240(1) cause of action was properly dismissed because the injury was not the result of an elevation-related incident. The court explained the operative principles re: Labor Law 200 and Labor Law 241(6) causes of action:

Labor Law § 200 is a codification of the common-law duty to exercise due care in providing a safe place to work … . Cases involving Labor Law § 200 fall into two broad categories, namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed … .

The instant case did not involve a dangerous or defective premises condition. “To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed, a defendant must have the authority to exercise supervision and control over the work'” … . However, ” [t]he right to generally supervise the work, stop the contractor’s work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Labor Law § 200 or for common-law negligence'” … .

Here, the City defendants established their prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 200 and common-law negligence causes of action, asserted against them, by demonstrating that they did not have the authority to control, direct, or supervise the method or manner in which the work was performed. * * *

Labor Law § 241(6) imposes a nondelegable duty on owners, contractors, and their agents to provide a safe workplace to workers, and applies to “all areas in which construction, excavation or demolition work is being performed.” Pursuant to that duty, owners, contractors, and their agents must comply with those provisions of the Industrial Code that set forth specific requirements or standards … . The City defendants contend that, since the injured plaintiff was a member of the “excavating crew,” as that term is employed in 12 NYCRR 23-9.5(c), he was authorized to be within range of the moving excavator bucket … , and they submitted an expert’s affidavit in support of that contention. However, a person authorized pursuant to 12 NYCRR 23-9.5 to operate or be within the range of an excavator’s bucket may, contrary to the City defendants’ contention, still claim the protections provided by 12 NYCRR 23-4.2(k) … . Torres v City of New York, 2015 NY Slip Op 03519, 2nd Dept 4-29-15

 

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