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PLAINTIFF FELL LEAVING AN ELEVATOR HE HAD JUST MODIFIED TO PREVENT ACCESS TO A FLOOR; HIS WORK WAS NOT ROUTINE MAINTENANCE; INDUSTRIAL CODE PROVISIONS ABOUT GUARDING HAZARDOUS OPENINGS APPLIED; ONE DEFENDANT MAY BE LIABLE AS A STATUTORY AGENT; LABOR LAW 200, 240(1) AND 241(6) CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined: (1) plaintiff’s work on the elevator was not routine maintenance and therefore Labor Law 240(1) and 241(6) were applicable; (2) the Labor Law 241(6) cause of action based on Industrial Code provisions requiring the guarding of hazardous openings should not have been dismissed; and (3) there are questions of fact whether one defendant, Edge, based on a subcontract, was liable as a statutory agent under Labor Law 200, 240(1) and 241(6):

Plaintiff and a coworker lowered a building’s freight elevator into the basement to allow plaintiff to perform work on top of the elevator. Plaintiff testified that he spent about 40 minutes performing that work, which involved making changes to the elevator in order to prevent people from accessing a first-floor renovation site by means of the elevator’s rear door. The elevator’s front door opened onto an outdoor area. After performing this task, plaintiff claims that he tripped on a wooden ramp, which led from a loading dock to the elevator, and fell. …

… [P]laintiff was engaged in altering the premises within the meaning of Labor Law § 240(1), since his work was intended to secure the premises in preparation for the renovation project … .

The Labor Law § 241(6) claim should be reinstated insofar as it is based on alleged violations of Industrial Code §§ 23-1.7(b)(1)(i) and 23-1.15(a), since there are issues of fact as to whether plaintiff’s accident was proximately caused by the lack of a compliant “safety railing” guarding the “hazardous opening,” and it is undisputed that the opening was not “guarded by a substantial cover fastened in place” (12 NYCRR § 23-1.7[b][1][i]). …

… [T]here is testimonial evidence that the subcontract made Edge responsible for performing all aspects of the sidewalk excavation, including safety procedures. Moreover, there are issues of fact as to whether Edge created or had notice of the defective condition that caused plaintiff to fall into the excavation hole … . Rooney v D.P. Consulting Corp., 2022 NY Slip Op 02243, First Dept 4-5-22

Practice Point: This case found that a subcontractor responsible for safety procedures could be liable as a statutory agent under Labor Law 200, 240(1) and 241(6).

 

PLAINTIFF SLIPPED AND FELL ON A PLASTIC SHEET PLACED OVER AN ESCALATOR TO PROTECT IT FROM DRIPPING PAINT; PLAINTIFF’S LABOR LAW 241 (6) ACTION DISMISSED; THE PLASTIC COVER WAS NOT A FOREIGN SUBSTANCE; AND THE PLASTIC COVER WAS AN INTEGRAL PART OF THE WORK; TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, reversing Supreme Court, over an extensive two-justice dissent, determined two provisions of the Industrial Code did not apply to this slip and fall on a plastic covering used to protect an escalator from dripping paint. The code provision requiring areas to be kept free of slippery “foreign substances” did not apply. And both code provisions were inapplicable because the condition was an integral part of the work being performed:

Sensibly interpreted, the heavy-duty plastic covering is not similar in nature to the foreign substances listed in the regulation, i.e., ice, snow, water or grease … . …

… [T]he covering was part of the staging conditions of the area plaintiff was tasked with painting, making it integral to his work. Therefore, even if the regulation arguably contemplates plastic sheeting to be a slipping hazard, under the factual circumstances here, the integral to the work defense bars plaintiff’s reliance on 12 NYCRR 23-1.7(d). …

… [T]he Supreme Court and the dissent incorrectly find liability pursuant to Industrial Code Section 23-1.7(e)(1). This section is inapplicable for the same reasons stated above with respect to Industrial Code Section 23-1.7 (d), namely that the plastic covering was an integral part of the work being performed … . Bazdaric v Almah Partners LLC, 2022 NY Slip Op 02189. First Dept 3-31-22

​Practice Point: Plaintiff slipped and fell on a plastic sheet placed to protect an escalator from dripping paint. The Labor Law 241(6) action was dismissed because (1) the plastic sheet was not a slippery foreign substance within the meaning of the Industrial Code and (2) the plastic sheet was an integral part of the work performed to which the Industrial Code does not apply.

 

THE INDUSTRIAL CODE PROVISION REQUIRING THAT POWER BUGGIES BE OPERATED BY TRAINED, COMPETENT, DESIGNATED PERSONNEL DOES NOT SET FORTH A SPECIFIC STANDARD OF CONDUCT SUCH THAT IT GIVES RISE TO A NON-DELEGABLE DUTY UNDER LABOR LAW 241(6); PLAINTIFF WAS INJURED WHEN AN UNTRAINED OPERATOR LOST CONTROL OF A POWER BUGGY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over an extensive three-judge dissent, reversing the Appellate Division, determined the Industrial Code provision which provides “[n]o person other than a trained and competent operator designated by the employer shall operate a power buggy” was not a concrete specification sufficient to give rise to a non-delegable duty under Labor Law 241(6). Plaintiff was injured when a worker who was not designated or trained to operate a power buggy lost control. A power buggy is a small self-powered vehicle operated by one person and used to move material on construction sites:

… [W]e have repeatedly reaffirmed the rule that to state a claim under section 241 (6), plaintiff must allege that defendant violated an Industrial Code regulation “that sets forth a specific standard of conduct and [is] not simply a recitation of common-law safety principles” … . …

The regulation relied on by plaintiff provides that “[n]o person other than a trained and competent operator designated by the employer shall operate a power buggy” (12 NYCRR 23-9.9 [a]). In assessing whether that regulation is specific enough to support a Labor Law § 241 (6) claim, we examine the text without reference to the underlying facts … . With respect to 12 NYCRR 23-9.9 (a), we agree with the majority and dissent below that the “trained and competent operator” requirement “is general, as it lacks a specific requirement or standard of conduct” … . We disagree, however, with the Appellate Division majority’s conclusion that the additional direction that “trained and competent” individuals must also be “designated” somehow transforms the provision from a general standard of conduct to a “specific, positive command” … . Toussaint v Port Auth. of N.Y. & N.J., 2022 NY Slip Op 01955, Ct App 3-22-22

Practice Point: If an Industrial Code provision does not set forth a specific standard of conduct, it does not give rise to a non-delegable duty under Labor Law 241(6). Here the Industrial Code provision which required that power buggies be operated only by “trained,” “competent,” “designated” personnel was not actionable. Plaintiff was struck by a power buggy when an untrained operator lost control.

 

PLAINTIFF WAS WALKING UP AN EARTHEN RAMP WHEN HE WAS STRUCK BY AN EXCAVATOR AND ROLLED DOWN THE RAMP; THERE WAS NO “SIGNIFICANT ELEVATION DIFFERENTIAL” SUCH THAT LABOR LAW 24O (1) WOULD APPLY (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the circumstances of plaintiff’s injury did not fit the “elevation-related” element of a Labor Law 240(1) cause of action. Plaintiff was walking up an earthen ramp when he was struck by an excavator and rolled down the ramp:

Labor Law § 240(1) is inapplicable to this case because plaintiff’s injuries were not “the direct consequence of a failure to provide adequate protection against a risk from a physically significant elevation differential” … . Plaintiff was struck by an excavator; the fact that at the time he was bringing debris up an earthen ramp, or that he rolled down the ramp after being struck, does not give rise to a cause of action pursuant to Labor Law § 240(1) … . Herrera v Kent Ave. Prop. III LLC, 2022 NY Slip Op 01738, First Dept 3-15-22

Practice Point: Plaintiff was walking up an earthen ramp when he was struck by an excavator and rolled down the ramp. There was no failure to provide equipment to protect against an elevation-related hazard such that Labor Law 240 (1) would apply.

 

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THE WORKERS’ COMPENSATION BOARD RULED THE PLAINTIFF DID NOT HAVE “POST-CONCUSSION SYNDROME” OR A “CONCUSSION CONDITION;” PLAINTIFF WAS THEREFORE ESTOPPED FROM CLAIMING THOSE INJURIES IN THIS LABOR LAW ACTION (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the ruling by the Workers’ Compensation Board that plaintiff did not have “post-concussion syndrome” or a “concussion condition” collaterally estopped plaintiff from claiming those injuries in this Labor Law action:

We agree with defendant that the court erred in denying its motion insofar as it effectively sought summary judgment dismissing plaintiff’s claims for damages related to PCS or a concussion condition as barred by the doctrine of collateral estoppel, but we conclude that plaintiff’s claims for damages related to headaches and the alleged concussion itself are not so barred. The quasi-judicial determinations of administrative agencies, such as the Workers’ Compensation Board (Board), “are entitled to collateral estoppel effect where the issue a party seeks to preclude in a subsequent civil action is identical to a material issue that was necessarily decided by the administrative tribunal and where there was a full and fair opportunity to litigate before that tribunal” … and a determination whether a plaintiff actually sustained a physical injury causally related to an accident … , the Board in this case specifically found that plaintiff did not have “post-concussion syndrome” or a “concussion condition” that were causally related to the second work accident. Szymkowiak v New York Power Auth., 2022 NY Slip Op 01702, Fourth Dept 3-11-22

Practice Point: Here the Workers’ Compensation Board’s ruling plaintiff did not have “post-concussion syndrome” or a “concussion condition” precluded claims for those injuries in the plaintiff’s Labor Law action pursuant to the doctrine of collateral estoppel.

 

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THERE WAS NO DIRECT OR CIRCUMSTANTIAL EVIDENCE OF THE CAUSE OF PLAINTIFF’S-DECEDENT’S FALL FROM A LADDER; ONLY A DEFECTIVE OR UNSAFE LADDER GIVES RISE TO LABOR LAW 240(1) LIABILITY; THE TRIER OF FACT WOULD HAVE TO RESORT TO SPECULATION; THE ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff-decedent’s Labor Law 240(1) and 241(6) causes of action should have been dismissed. Plaintiff’s decedent fell from a ladder, but there were no witnesses and no evidence of the cause of the fall. The trier of fact would have been forced to speculate about whether the ladder was defective in some way:

[Defendants] Casur and 124 Ridge established their prima facie entitlement to judgment as a matter of law by demonstrating that no one was in a position to establish the cause of the accident, as there was no direct or circumstantial evidence as to how the accident happened … . In opposition, plaintiff failed to raise a triable issue of fact. Since the accident may well have been caused by a misstep or loss of balance, rather than by a defective or improperly secured ladder, any determination by the trier of fact as to the cause of the accident would be based upon speculation … . The Noseworthy doctrine (see Noseworthy v City of New York, 298 NY 76, 80-81 [1948])is not applicable to this case, since Casur and 124 Ridge’s knowledge as to the cause of the accident is no greater than plaintiff’s … Public Adm’r of Queens County v 124 Ridge LLC, 2022 NY Slip Op 01522, First Dept 3-10-22

Practice Point: Falling from a ladder does not automatically trigger Labor Law 240(1) liability. There must be proof the ladder was defective or failed to protect the plaintiff in some way. Here there was no proof of the cause of plaintiff’s decedent’s fall so the action should have been dismissed.

 

THE PROPERTY OWNER AND GENERAL CONTRACTOR FAILED TO DEMONSTRATE THAT THE INDUSTRIAL CODE PROVISION REQUIRING EMPLOYERS TO ENSURE THE FLOOR AT THE WORK SITE IS NOT SLIPPERY DID NOT APPLY TO THE FLOOR OF A TRUCK OWNED AND OPERATED BY A THIRD PARTY WHICH DELIVERED MATERIALS TO THE WORK SITE; HERE PLAINTIFF ALLEGED HE SLIPPED AND FELL ON OIL ON THE FLOOR OF THE TRUCK AS HE WAS ATTEMPTING TO UNLOAD IT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant property owner and general contractor were not entitled to summary judgment on the Labor Law 241(6) cause of action, even though plaintiff’s slip and fall was allegedly caused by oil on the floor of a truck used to deliver elevator components to the work site:

Habberstad [the property owner] and T.G. Nickel [the general managger] failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated on 12 NYCRR 23-1.7(d) insofar as asserted against each of them. Section 23-1.7(d) of the Industrial Code provides that “[e]mployers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition.” Here, contrary to the Supreme Court’s conclusion, Habberstad and T.G. Nickel failed to make a prima facie showing that the floor of the truck on which the injured plaintiff was performing work was not the type of surface contemplated under section 23-1.7(d) … . Schutt v Dynasty Transp. of Ohio, Inc., 2022 NY Slip Op 01473, Second Dept 3-9-22

Practice Point: The Industrial Code provision requiring employers to ensure floors at the work site are not slippery may apply to the floors of trucks used to deliver material to the work site. Here the plaintiff alleged he slipped and fell on oil on the floor of a truck he was attempting to unload. The appellate court determined the property owner’s and the general contractor’s motions for summary judgment on the Labor Law 241(6) cause of action should not have been granted.

PLAINTIFF ROOFER WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION BECAUSE HE FELL THROUGH AN UNPROTECTED HOLE IN THE ROOF WHICH WAS COVERED ONLY BY A SHEET OF BLACK PLASTIC; THE FACT THAT PLAINTIFF HAD UNTIED HIS SAFETY HARNESS SO HE COULD ASSIST A CO-WORKER DID NOT PRECLUDE SUMMARY JUDGMENT BECAUSE COMPARATIVE NEGLIGENCE IS NOT RELEVANT UNDER LABOR LAW 240(1) (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the fact that plaintiff untied his harness so he could assist a fellow roofer in another area of the roof did not preclude summary judgment in plaintiff’s favor on the Labor Law 240(1) cause of action. Plaintiff, when walking toward the co-worker he was going to assist, fell through a hole in the roof that was concealed by a sheet of black plastic:

… [T]he plaintiff established, prima facie, that Labor Law § 240(1) was violated and that the violation was a proximate cause of his injuries. The undisputed evidence established that the plaintiff was exposed to the elevation-related risk of the hole that was cut into the roof, that the hole through which the plaintiff fell was uncovered and unguarded, and that the location of the hole was concealed by an ice and water shield. The plaintiff established that the absence of protective equipment covering or guarding the hole was a proximate cause of his injuries. Indeed, in granting summary judgment on the issue of liability on the Labor Law § 241(6) cause of action, the Supreme Court found that the defendants failed to cover or guard the hole as required by the Industrial Code, and that such failure was a proximate cause of the plaintiff’s injuries. “[W]hen the evidence establishes the absence of any safety devices . . . the statutes’ [Labor Law § 240(1)] clear dictates have not been met. . . If proximate cause is established, the responsible parties have failed, as a matter of law, to ‘give proper protection'” … .

… [T]he defendants failed to raise a triable issue of fact as to whether there was a statutory violation and whether the plaintiff’s own conduct was the sole proximate cause of the accident … . Since the plaintiff established a violation of the statute and that the violation was a proximate cause of his fall, the plaintiff’s comparative negligence, if any, is not a defense to the Labor Law § 240(1) cause of action … . Mejia v 69 Mamaroneck Rd. Corp, 2022 NY Slip Op 01449, Second Dept 3-9-22

Practice Point: Plaintiff fell through an unprotected hole in the roof covered only by a sheet of black plastic. Even though he had untied his safety harness at the time of the fall, summary judgment on his Labor Law 240(1) cause of action was awarded by the appellate court because comparative negligence is not defense.

 

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DEFENDANT’S EXPERT’S AFFIDAVIT ITSELF RAISED QUESTIONS OF FACT AND WAS OTHERWISE DEFICIENT IN THIS LABOR LAW 240(1) LADDER FALL CASE; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff’s Labor Law 240(1) cause of action should not have been dismissed. Plaintiff alleged he fell off a ladder while cleaning glass with an extension pole. The court noted that the defendant’s expert affidavit was deficient and itself raised questions of fact precluding summary judgment in favor of the defendant:

Summary dismissal of the Labor Law § 240(1) claim is precluded by issues of fact as to whether plaintiff was exposed to an elevation-related risk “attendant to his work [of washing windows] as it was intended to be performed” … . Plaintiff testified that he performed the work using an extension pole with a squeegee attached to one end, while both of his feet were on the rung one or two steps below the top of a 12-foot ladder. Plaintiff was unable to estimate the height of the glass except that it was more than 15 feet above the floor, but he stated that he could not have cleaned the glass while standing on the floor because he would not have been able to apply sufficient force to the glass. * * *

The [defendant’s] expert’s statements raised issues of fact as to his own credibility in opining that plaintiff could have cleaned all of the glass while standing on the floor and plaintiff’s description of the supplies he needed to use and did use in performing the work. Durasno v 680 Fifth Ave. Assoc., L.P., 2022 NY Slip Op 01413, First Dept 3-8-22

Practice Point: Here the defendant’s expert’s affidavit failed to address all of the allegations made by plaintiff in this Labor Law 240(1) ladder-fall case and raised issues as to the expert’s credibility. Defendant’s motion for summary judgment should not have been granted.

 

A STACK OF SHEETROCK BOARDS WHICH WERE LEANING AGAINST A WALL FELL ON PLAINTIFF; THERE WERE QUESTIONS OF FACT ABOUT WHETHER IT WAS A GRAVITY-RELATED EVENT AND WHETHER THE ELEVATION DIFFERENTIAL WAS DE MINIMUS (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined there was a question of fact whether plaintiff could recover for injuries under Labor Law 240(1). A stack of 25 to 30 sheetrock boards which had been leaning against a wall fell on him. The court noted that the Labor Law 241(6) cause of action was properly dismissed because the incident happened in an apartment, not a “passageway:”

… [T]he record presents issues of fact as to whether plaintiff’s injuries flowed directly from the application of the force of gravity to the sheetrock, whether the elevation differential was de minimis, and whether the combined weight of the sheetrock panels could generate a significant amount of force as it fell … . Kuylen v KPP 107th St., LLC, 2022 NY Slip Op 01419, First Dept 3-8-22

​Practice Point: A stack of sheetrock boards which had been leaning against a wall fell on plaintiff. There were questions of fact re: whether the accident was covered by Labor Law 240(1) as a gravity-related event where the elevation differential was not de minimus.

 

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