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THE ELECTRICAL STUB UP OVER WHICH PLAINTIFF TRIPPED IN THIS LABOR LAW 241(6) ACTION WAS AN INTEGRAL PART OF THE CONSTRUCTION; THE INDUSTRIAL CODE PROVISIONS REQUIRING PASSAGEWAYS TO BE KEPT CLEAR OF DEBRIS GENERALLY DO NOT APPLY TO AN OBSTRUCTION WHICH IS AN INTEGRAL PART OF CONSTRUCTION; HERE THE FAILURE TO PROVIDE SAFETY MARKERS CALLING ATTENTION TO THE STUB UPS APPARENTLY BROUGHT THE FACTS WITHIN THE REACH OF THOSE “KEEP PASSAGEWAYS FREE OF DEBRIS” CODE PROVISIONS (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the Industrial Code provisions which require passageways to be kept clear of debris applied to electric “stub ups” which protrude from the floor, even though the stub ups are integral parts of the construction, to which those Code provisions do not apply. Apparently the absence of safety markers calling attention to the stub ups was deemed to be covered by those “free of debris” Code provisions:

Although neither subdivision (1) nor (2) of 12 NYCRR 23-1.7(e) applies where the object over which the plaintiff trips is an integral part of construction …, that exception does not apply here. While it is undisputed that the stub up was an integral part of the construction, none of the defendants have pointed to evidence that it was necessary that the stub ups be unmarked or that safety markings or other protective measures would have interfered with the work … . Murphy v 80 Pine, LLC, 2022 NY Slip Op 04811, Second Dept 8-3-22

Practice Point: The Industrial Code provisions requiring passageways to be kept clear of debris do not apply to tripping hazards that are integral parts of construction. Here the electrical stub up over which plaintiff tripped was an integral part of construction. Nevertheless, the Second Department deemed the Code provisions to apply because of the absence of safety markers to alert workers to the location of the stub ups (which protrude from the floor).

 

PLAINTIFF IN THIS LABOR LAW 240(1) ACTION FELL FROM AN INVERTED BUCKET HE WAS STANDING ON TO REACH A POWER CABLE; DEFENDANTS DEMONSTRATED THERE WAS NO NEED FOR PLAINTIFF TO ELEVATE HIMSELF TO DO HIS JOB; THEREFORE PLAINTIFF WAS THE SOLE PROXIMATE CAUSE OF HIS INJURY (SECOND DEPT).

The Second Department determined Supreme Court properly granted defendants’ motion for summary judgment on the Labor Law 240(1) cause of action. Plaintiff fell off an inverted bucket when he was installing stacked washers and dryers. Defendant demonstrated plaintiff did not need to elevate himself to do the work:

According to the plaintiff, on the day at issue, he was standing on an inverted bucket in order to reach the power cable for the stacked washer dryer unit that he had just pushed into the closet before he had plugged in the power cable. The plaintiff contended that the power cable was resting on top of the dryer and was out of reach, and that the washer dryer unit, although on wheels, was difficult to move, so he stood on an inverted bucket to reach the power cable. The plaintiff alleged that the bucket slipped out from under him and he fell and was injured. …

… [T]he plaintiff was the sole proximate cause of his injuries because his conduct unnecessarily exposed him to an elevation-related risk … . The plaintiff’s deposition testimony … established that a ladder was not necessary for the plaintiff to do his work. The plaintiff testified that each of the stacked washer and dryer units that he was installing was on wheels and not secured within the closet in which they were being installed. … [P]rior to the incident, he had installed approximately 20 stacked washer and dryer units without using a ladder. … [W]ith respect to the unit he was installing on the day at issue, in order to reach the power cable, he could have moved the stacked washer and dryer out of the closet rather than stand on an inverted bucket, but he chose not to do so. Morales v 50 N. First Partners, LLC, 2022 NY Slip Op 04801, Second Dept 8-3-22

Practice Point: In this unusual Labor Law 240(1) action, the defendants demonstrated plaintiff did not need to stand on an inverted bucket to do his job. Therefore plaintiff was the sole proximate cause of his fall (from the bucket) and defendants were entitled to summary judgment.

 

PLAINTIFF FELL THROUGH PLANKING WHICH DID NOT ADEQUATELY PROTECT A SHAFT OPENING; THE FACT THAT PLAINTIFF’S FOREMAN INSTRUCTED PLAINTIFF NOT TO ENTER THE SHAFT SPEAKS TO COMPARATIVE NEGLIGENCE WHICH IS NOT A BAR TO SUMMARY JUDGMENT ON A LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s motion for summary judgment on his Labor Law 240(1) cause of action should have been granted. The fact that plaintiff’s employer instructed him not to enter the shaft where plaintiff fell to the floor below spoke to comparative negligence which is not a bar to summary judgment on a Labor Law 240(1) cause of action:

The injured plaintiff allegedly was injured when he stepped onto aluminum planks that lay across the unobstructed shaft opening on the sixteenth floor. The planks gave way beneath him and caused him to fall to a platform across the shaft on the fifteenth floor. * * *

… [Deposition testimony] established that the shaft opening was not properly protected so as to prevent workplace accidents … . … [Defendants] failed to establish, as a matter of law, that the injured plaintiff’s failure to heed the instructions of the … foreman … not to enter the shaft constituted the sole proximate cause of his injuries because “an instruction by an employer or owner to avoid using unsafe equipment or engaging in unsafe practices is not a ‘safety device’ in the sense that plaintiff’s failure to comply with the instruction is equivalent to refusing to use available, safe and appropriate equipment” … . “A worker’s injury in an area of the work site where the worker was not supposed to be amounts to comparative negligence, which is not a defense to a Labor Law § 240(1) claim” … . Zong Wang Yang v City of New York, 2022 NY Slip Op 04761, Second Dept 7-27-22

Practice Point: Plaintiff fell through planking placed over a shaft after he was instructed not to enter the inadequately protected shaft-area. Failure to heed the instruction speaks to comparative negligence which is not a bar to summary judgment on a Labor Law 240(1) cause of action.

 

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CLAIMANT WAS INJURED WHEN A TRUCK STRUCK THE BASKET OF THE MAN LIFT SHE WAS USING; THE FACT THAT CLAIMANT DIDN’T FALL FROM THE BASKET DID NOT WARRANT THE DISMISSAL OF THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the Labor Law 200 and 240(1) causes of action should not have been dismissed. Claimant was in the basket of a man lift when a car carrier (truck) struck the basket causing it to “ricochet back and forth/” The fact that claimant didn’t fall from the basket did not take the incident outside the scope of Labor Law 240(1):

The Court of Claims erred in granting that branch of the defendant’s motion which was for summary judgment dismissing the Labor Law § 240(1) cause of action. The defendant failed to demonstrate its prima facie entitlement to judgment as a matter of law. “The fact that the plaintiff did not actually fall from the [basket] is irrelevant as long as the ‘harm directly flow[ed] from the application of the force of gravity to [her] person'” … . Johnsen v State of New York, 2022 NY Slip Op 04540, Second Dept 7-13-22

Practice Point: Here claimant was in the basket of a man lift when a truck struck the basket causing it to “ricochet back and forth.” The fact that claimant didn’t fall from the basket did not support the dismissal of the Labor Law 240(1) cause of action. Labor Laq 240(1) requires that the injury directly flow from the “application of gravity” to the person.

 

THERE WERE QUESTIONS OF FACT WHETHER THE ACCIDENT—THE COLLAPSE OF A DECK—EVER HAPPENED IN THIS LABOR LAW 24O (1) ACTION; SUPREME COURT REVERSED (FOURTH DEPT).

​The Fourth Department, reversing Supreme Court  in this Labor Law 240(1) action, determined there were questions of fact about whether the accident (the collapse of a deck) ever happened at all:

Contrary to plaintiff’s contention and the court’s determination, the assertion of defendant that an accident resulting from a collapse or dislodging of the deck as described by plaintiff and the foreman may not have occurred at all is not based on “speculation without factual support” … . Rather, defendant’s assertion is based on the supervisors’ firsthand observations of an intact deck on the morning after the alleged accident, coupled with the testimony of the foreman, which calls into question whether a repair of the deck could have been made before the supervisors’ inspection, from which a factfinder could permissibly draw the inference that the alleged collapse did not occur at all … . Hann v S&J Morrell, Inc., 2022 NY Slip Op 04447, Fourth Dept 7-8-22

Practice Point: Unusual Labor Law 240(1) case where Supreme Court granted plaintiff’s summary judgment motion but the appellate court held there were questions of fact whether the accident—the collapse of a deck—ever happened.

 

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HERE THE FRAMING COMPANY HIRED BY THE GENERAL CONTRACTOR AND GIVEN SUPERVISORY CONTROL OVER PLAINTIFF’S WORK WAS LIABLE FOR PLAINTIFF’S INJURY AS A “STATUTORY AGENT” OF THE GENERAL CONTRACTOR WITHIN THE MEANING OF THE LABOR LAW 240 (1) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant South Ocean Framing was a statutory agent liable for plaintiff’s injury pursuant to  Labor Law 240(1). The general contractor hired South Ocean Framing, which in turn subcontracted the framing work to plaintiff’s employer. Plaintiff stepped on a beam which flipped out from under him and he fell 15 feet. He was entitled to summary judgment. With respect to the statutory-agent question, the court wrote:

Contrary to South Ocean’s … contention, it is liable under Labor Law § 240(1) as a statutory agent of the owner or general contractor, since it had the authority to supervise and control the particular work in which the plaintiff was engaged at the time of his injury .. . Once South Ocean became such an agent, it could not escape liability by delegating its work to another entity [i.e., plaintiff’s employer]. Mogrovejo v HG Hous. Dev. Fund Co., Inc., 2022 NY Slip Op 04299, Second Dept 7-6-22

Practice Point: The general contractor hired the framing company. The framing company hired plaintiff’s employer to do the framing. Because the framing company had supervisory control over plaintiff’s work, it was liable for plaintiff’s injury as a statutory agent under Labor Law 240 (1) and could not escape liability by delegating its supervisory role.

 

IF PLAINTIFF, A FOREMAN, HAD THE AUTHORITY TO STOP WORK BECAUSE OF RAIN, THEN HIS CONTINUING TO WORK MAY HAVE BEEN THE SOLE PROXIMATE CAUSE OF HIS FALL; IF PLAINTIFF HAD BEEN INSTRUCTED TO WORK IN THE RAIN, THEN THE WET PLYWOOD MAY HAVE BEEN THE SOLE PROXIMATE CAUSE OF HIS FALL; BECAUSE OF THE CONFLICTING OR ABSENCE OF EVIDENCE ON THESE ISSUES, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED; TWO JUSTICE DISSENT (THIRD DEPT).

The First Department, in a full-fledged opinion by Justice Kennedy in this Labor Law 241 (6) action, over a two-justice dissenting opinion, determined conflicting testimony about whether plaintiff, who was a foreman, had the authority to stop work because of rain, or was instructed to work in the rain, raised a question of fact about the cause of the accident. Plaintiff slipped on wet plywood and fell as he was passing steel rebar to workers below:

The deposition testimony raised issues of fact as to whether plaintiff’s injuries were proximately caused by a slippery condition in violation of Industrial Code (12 NYCRR) § 23-1.7(d), or whether the sole proximate cause was plaintiff’s decision, as a foreman, to work on a plywood surface exposed to the elements while it was raining … . * * *

… [T]he evidence is inconclusive as to whether plaintiff’s decision to work in the rain, rather than simply following his general foreman’s instructions about what work to perform, was the sole proximate cause of his slip-and-fall accident. … [T]his case is distinguishable from the line of cases relied upon by the dissent that conclude that a plaintiff is not the proximate cause of an accident when there is undisputed evidence that they were following the instructions of a foreman. Here, plaintiff was also a foreman with specific duties and potential control over the work that he and his crew were performing. Whether he could or should have ceased work based on his own authority, as a foreman, his extensive work experience and conditions of the site, there are issues of fact that cannot be resolved on this record. Sutherland v Tutor Perini Bldg. Corp., 2022 NY Slip Op 04228, First Dept 6-30-22

Practice Point: Here the plaintiff was a foreman on a construction site. He was working in the rain when he slipped and fell on wet plywood. If plaintiff had the authority to stop work because of the rain, he may be deemed the sole proximate cause of his fall. If plaintiff was ordered to work in the rain, then the slippery plywood may be deemed to be the sole proximate cause of his fall. Because there was conflicting and/or a lack of evidence on these issues, plaintiff’s motion for summary judgment should not have been granted.

 

QUESTIONS OF FACT ABOUT WHETHER PLAINTIFF WAS INSTRUCTED TO WORK ONLY ON GROUND LEVEL AND NOT TO USE STILTS, AND WHETHER THE SOLE PROXIMATE CAUSE OF THE ACCIDENT WAS PLAINTIFF’S CONTINUED USE OF THE STILTS AFTER HE FELT THEM BECOME UNSTABLE, PRECLUDED SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined there were questions of fact which precluded summary judgment on plaintiff’s Labor Law 240 (1) cause of action. Apparently, plaintiff fell while using stilts. There was a question of fact whether plaintiff’s boss told him to work only on ground level without stilts. And there was a question of fact whether plaintiff was the sole proximate cause of his accident because he kept using the stilts when they became unstable and did not request another pair:

… [G]iven the nature of the work plaintiff was performing at the time of his accident, the distance he fell presented a physically significant elevation within the meaning of Labor Law § 240(1) … . While the distance may have been physically significant within the meaning of Labor Law § 240(1), evidence that plaintiff’s boss … specifically instructed him to only work on ground level and not to use stilts “raises triable issues of fact as to whether plaintiff’s duties were expressly limited to work that did not expose him to an elevation-related hazard within the purview of Labor Law § 240(1) … .

Issues of fact also exist as to whether plaintiff was the sole proximate cause of the accident because when he felt the stilts become unstable his “normal and logical response” should have been to request another pair rather than to keep working on them … . …

While it is disputed whether plaintiff was using his own stilts or his employer provided them, and it is further unclear whether the stilts failed because a screw came out while they were in use or because they had been jerry-rigged with a wire threaded through a bolt hole, any use of defective stilts or failure to properly inspect them to discern any such defect was not the sole proximate cause of the accident where, as here, no proper safety devices were provided … . Gonzalez v DOLP 205 Props. II, LLC, 2022 NY Slip Op 03868, First Dept 6-14-22

Practice Point: Here, where plaintiff fell using stilts, evidence plaintiff was instructed to work only on ground level precluded summary judgment on the Labor Law 240 (1) cause of action. Plaintiff’s continued use of the stilts after he felt them become unstable raised a question of fact whether plaintiff was the sole proximate cause of the injury.

 

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HOMEOWNER’S EXEMPTION PRECLUDED THE LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION AGAINST THE DEFENDANT PROPERTY OWNER, A RELIGIOUS ORGANIZATION; THE LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION ALLEGING THE HOMEOWNER’S LADDER WAS DEFECTIVE PROPERLY SURVIVED SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the homeowner’s exemption applied to preclude plaintiff’s Labor Law 240(1) and 241(6) causes of action in this ladder-fall case. The Labor Law 200 and negligence causes of action (alleging defendant property-owners’ ladder was defective) properly survived summary judgment. The fact that the property-owner is a religious organization did not affect the applicability of the homeowner’s exemption:

The deposition transcripts of the plaintiff and of the defendant’s employee demonstrated that the defendant did not direct or control the plaintiff’s work. Additionally, the deposition transcript of the defendant’s employee and the affidavit of the defendant’s expert architect demonstrated that the defendant was the owner of a one-family dwelling to which the meditation room [which plaintiff was painting when he fell] was an accessory. Contrary to the plaintiff’s contention, the defendant is entitled to the protections of this exemption even though it is a religious organization … . …

The defendant failed to demonstrate, prima facie, that it lacked notice of the allegedly dangerous or defective condition with respect to the ladder … . Reinoso v Han Ma Um Zen Ctr. of N.Y., Inc., 2022 NY Slip Op 03755, Second Dept 6-8-22

Practice Point: The homeowner’s exemption precludes Labor Law 240(1) and 241(6) causes of action against a homeowner which/who does not direct plaintiff’s work, even if the homeowner is a religious organization. The homeowner’s exemption does not apply to Labor Law 200 or negligence causes of action, here based on allegations the homeowner’s ladder was defective.

 

PLAINTIFF FELT HIS ARM SNAP WHEN ATTEMPTING TO LIFT A 400 POUND ELEVATOR PLATFORM FOUR OR FIVE INCHES TO PLACE A PALLET JACK UNDER IT; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this Labor Law 240(1) action should have been granted. The pallet jack, which was deemed a safety device, wasn’t long enough to fully lift the 400 pound elevator platform. Plaintiff was lifting the end of the platform which was not supported by the pallet jack (in order to place another pallet jack under it) when he felt his arm snap:

Plaintiff … was injured as he was attempting to move a 400-pound elevator platform from the front of a flatbed truck to the tailgate. The platform, which was about seven feet long, rested on a pallet jack that was too small to allow the platform to rest properly on it, causing the platform to dip and touch the flatbed. As plaintiff lifted the platform about four or five inches off the pallet jack in order to place a second pallet underneath to facilitate moving the platform, he felt a snap in his left arm.

The pallet jack was a safety device that was insufficient to allow plaintiff to move the platform from the front of the flatbed truck to the tailgate. In view of the weight of the platform and the amount of force it was able to generate, even in falling a relatively short distance, plaintiff’s injury resulted from a failure to provide adequate protection, required by Labor Law § 240(1), against a risk arising from a significant elevation differential … . Schoendorf v 589 Fifth TIC I LLC, 2022 NY Slip Op 03580, First Dept 6-2-22

Practice Point: Even a height-differential of four or five inches can support a Labor Law 240(1) cause of action. Here plaintiff was attempting to lift a 400 pound elevator platform a few inches in order to place a pallet jack under it when he injured his arm.

 

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