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THE DEFENDANT WHICH RENTED OUT THE AERIAL LIFT WHICH MALFUNCTIONED WAS NOT AN AGENT OF THE OWNER OR CONTRACTOR AND EXERCISED NO CONTROL OVER THE WORK, THEREFORE THE LABOR LAW CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED; THE NEGLIGENCE CAUSE OF ACTION, HOWEVER, PROPERLY SURVIVED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined that the Labor Law causes of action could not be brough against the defendant (Ahern) which rented out the aerial lift which malfunctioned. Ahern was not an agent of the owner or contractor and exercised no control over the work, so the Labor Law causes of action did not apply. However Ahern could be liable under a negligence theory:

… [O]nly contractors and owners and their agents can be held liable for Labor Law violations … . To be an “agent” of an owner or contractor, a party must have the ability to supervise and control the worksite and/or plaintiff’s work … . Here, plaintiff does not dispute that Ahern was neither an owner nor contractor within the meaning of the statute. The complaint only alleges that Ahern owned and maintained the aerial lift, not that Ahern exercised any supervision or control over the worksite … .

Plaintiff’s complaint, however, sufficiently pleaded a cause of action for negligence against Ahern. Plaintiff alleges that the aerial lift owned by Ahern malfunctioned, causing plaintiff’s coworker to spray plaintiff with the power washer. … [E]ven if plaintiff’s coworker proximately caused plaintiff’s injury, Ahern is not absolved of liability as “there may be more than one proximate cause of an injury” … . Kull v Ahern Rentals, Inc., 2023 NY Slip Op 04721, First Dept 9-26-23

Practice Point: Here the company which rented out the aerial lift which malfunctioned was not an agent of the owner or contractor and exercised no control over the work. Therefore the Labor Law was not triggered. However, the company may be liable under a straight negligence theory.

 

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