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QUESTIONS OF FACT WHETHER PEBBLE-SIZED DEBRIS WHICH FELL ON PLAINTIFF AND ALLEGEDLY SERIOUSLY INJURED HIS EYE GAVE RISE TO LIABILITY UNDER LABOR LAW 240(1) AND 241(6) (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined there were questions of fact about liability pursuant to Labor Law 240(1) and 241(6). Plaintiff was working in a shaft when pebble-sized debris fell on him, allegedly seriously injuring his eye. There were questions of fact whether the distance the debris fell was de minimus and whether the force with which the debris fell was de minimus. There was also a question of fact whether planking should have been installed above the shaft to protect against falling debris:

There are issues of fact as to whether the debris that fell on plaintiff — taking into account the elevation differential, the debris’ weight, and the amount of force it could generate …  — was “a load that required securing for the purposes of the undertaking at the time it fell” … , and whether his injury was a direct consequence of defendants’ “failure to provide adequate protection against a risk arising from a physically significant elevation differential” … . The trier of fact could find that the elevation differential between plaintiff and the level from which the debris fell was de minimis, that the debris’ weight was inconsequential, or that the debris could not have generated any meaningful amount of force, and determine that plaintiff’s “injuries were the result of [a] usual and ordinary danger[] at a construction site” … .. However, the trier of fact could determine that the elevation differential of at least one story was not de minimis, that the weight of the debris and the force it was capable of generating were significant, and that the debris should have been secured for the purpose of the undertaking. Peters v Structure Tone, Inc., 2022 NY Slip Op 02518, First Dept 4-19-22

Practice Point: There were questions of fact whether injury from falling pebble-sized debris is covered under Labor Law 240(1) and 241(6). The force generated by the falling debris could be found to be de minimus.

 

THE EIGHT-INCH WIDE BEAM CLAIMANT WAS MOVING ALONG WHEN HE FELL WAS THE FUNCTIONAL EQUIVALENT OF A SCAFFOLD, BRINGING THE ACTION WITHIN THE SCOPE OF LABOR LAW 240(1); THE SAFETY LINE PROVIDED TO CLAIMANT DID NOT PROTECT HIM FROM THE FALL; CLAIMANT WAS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined claimant’s motion for summary judgment on the Labor Law 240(1) cause of action should have been granted. Claimant, Lazo, was moving along an eight-inch wide, 17-foot long, beam suspended above a platform when he fell. He was attached to two safety lines which he had to detach and reattach to anchorage points. He fell while in the process of reattaching one of the lines. The second line did not prevent the fall:

Lazo would use a hook at the end of each safety line to secure it to various anchorage points on another horizontal beam located above him. To move across the beam, workers were instructed to unhook the first safety line from the first anchorage point, connect it to a second anchorage point, and then repeat this process with the second safety line. This effectively allowed workers to move along the beam while always having at least one safety line attached to an anchorage point. * * *

Lazo’s deposition testimony established, prima facie, that his accident was within the purview of Labor Law § 240(1), since the beam from which he fell was being used as the functional equivalent of a scaffold … . Lazo’s deposition testimony also established, prima facie, that his second safety line was attached to an anchorage point but was nevertheless insufficient to prevent him from falling … . Lazo v New York State Thruway Auth., 2022 NY Slip Op 02400, Second Dept 4-13-22

Practice Point: Here an eight-inch wide, 17 foot-long beam suspended eight feet above a platform was the functional equivalent of a scaffold. The fall from the beam therefore was within the scope of Labor Law 240(1).

 

BOARDING UP A VACANT HOUSE WAS WITHIN THE SCOPE OF LABOR LAW 240(1) AND 241(6) (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s work, boarding up a vacant house to prevent access, was within the scope of work covered by Labor Law 240 (1) and Labor Law 241(6). Plaintiff allegedly fell from a ladder when attempting to board up a window:

… [P]laintiff’s work of boarding up the house, thus making it uninhabitable, was “altering” the premises within the meaning of Labor Law § 240(1), as it constituted a significant physical change to the configuration or composition of the building … .. Further, as the work the plaintiff was engaged in constituted “alteration,” it was within the scope of “construction work” for purposes of Labor Law § 241(6) … . Nucci v County of Suffolk, 2022 NY Slip Op 02423, Second Dept 4-13-22

​Practice Point: Boarding up a vacant house is covered by Labor Law 240(1) and 241(6).

 

HEAVY BARN DOORS WHICH HAD BEEN TAKEN OFF THE HINGES FELL ON PLAINTIFF AS HE DELIVERED SHEETROCK TO THE BARN WHICH WAS BEING CONVERTED TO A MUSIC STUDIO; THERE WERE QUESTIONS OF FACT WHETHER THE DOORS PRESENTED A DANGEROUS CONDITION AND CONSTITUTED AN ELEVATION-RELATED HAZARD AND WHETHER THIS WAS A COMMERCIAL PROJECT TO WHICH THE HOMEOWNER EXEMPTION DID NOT APPLY (LABOR LAW 200 AND 240(1)) (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined defendant’s motion for summary judgment on the Labor Law 200 a nd 240(1) causes of action should not have been granted. Plaintiff was told to deliver sheetrock through an opening where heavy double barn doors were being restored. The hinges had been removed and the doors were held in place by wooden wedges. The doors fell on plaintiff. The Third Department found there were questions of fact whether the doors presented a dangerous condition (Labor Law 200), an elevation-related hazard (Labor Law 240(1), and whether the project was commercial in nature such that the homeowner exemption did not apply. With regard to the homeowner exemption, the court wrote:

Although Labor Law § 240 (1) imposes a nondelegable duty upon owners to protect workers engaged in construction-related activities, “the Legislature has carved out an exemption for the owners of one and two-family dwellings who contract for but do not direct or control the work” … . “That exemption, however, is not available to an owner who uses or intends to use the dwelling only for commercial purposes” … .

… [D]efendants, as the parties seeking the benefit of the statutory exemption, had the burden of establishing that the property was not being used solely for commercial purposes … . This they failed to do. [Defendant’s] deposition testimony established that he is a professional musician and that the structure was being altered to use as a music studio and a photography workspace. Moreover, defendants failed to submit an affidavit addressing whether they intended to use the structure for commercial or noncommercial purposes. [W]e find that defendants failed to demonstrate their entitlement to the homeowner exemption as a matter of law and that a question of fact exists regarding the application of the homeowner exemption … .Hawver v Steele, 2022 NY Slip Op 02322, Third Dept 4-7-22

Practice Point: The homeowner exemption to Labor Law liability does not apply where the construction is for commercial purposes. Here the defendants did not demonstrate the renovation of a barn for use as a music studio was not for commercial purposes. Therefore defendants motion for summary judgment on the Labor Law 240(1) cause of action should not have been granted.

 

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.

 

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