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QUESTION OF FACT WHETHER A LADDER WAS INTENDED FOR USE AS A STAGE PROP BY ACTORS AS OPPOSED TO AN OSHA COMPLIANT LADDER; EVEN WHERE A LABOR LAW 200 ACTION WILL NOT LIE, A COMMON-LAW NEGLIGENCE CAUSE OF ACTION MAY BE VIABLE; HERE IT WAS ALLEGED DEFENDANT LAUNCHED AN INSTRUMENT OF HARM BY ALTERING THE LADDER (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined that the Labor Law 200 cause of action against Center Line should have been dismissed but the common law negligence cause of action properly survived summary judgment. Although the decision doesn’t spell it out, it appears that defendant Center Line altered the ladder in question by gluing on an extra rung. Apparently the ladder was to be used by actors and Center Line argued it was a stage prop and was not intended for use an OSHA compliant ladder. The viable contract-based “Espinal” negligence theory was based upon launching an instrument of harm (altering the ladder):

Even assuming that Center Line is a proper Labor Law § 200 defendant, it cannot be held liable under the statute. This case is a means and methods of work case, and there is no proof that Center Line had authority to supervise and control plaintiff’s work … .

A claim for common-law negligence may lie even though there is no Labor Law § 200 liability … . A triable issue of fact exists as to whether Center Line negligently created or exacerbated a dangerous condition so as to have “launche[d] a force or instrument of harm” … . Although Center Line augmented the ladder as directed by Production Core, a triable issue of fact exists as to whether Center Line could have reasonably anticipated that the gluing of the rung to the top of the ladder would pose a hazard and likely to cause injury … . While plaintiff and the codefendants claim that Center Line dangerously altered the ladder despite knowing that the ladder was structural and climbable, Center Line claims that the ladder was a prop ladder that was not meant to be OSHA compliant, and that it augmented the ladder in reliance on Production Core’s assurances that the top portion of the ladder would not be ascended by the actors. Such raises an issue of fact for the jury to decide. Mullins v Center Line Studios, Inc., 2021 NY Slip Op 02756, First Dept 5-4-21

 

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