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DEFENDANTS DEMONSTRATED (1) THE PROTRUDING PIPE OVER WHICH PLAINTIFF TRIPPED WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, (2) THEY DID NOT EXERCISE SUPERVISORY CONTROL OVER PLAINTIFF’S WORK, AND (3) THE INDUSTRIAL CODE PROVISION PROHIBITING THE ACCUMULATION OF DEBRIS DID NOT APPLY; THE LABOR LAW 200 AND 241(6) CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the defendants’ motion for summary judgment on the Labor Law 200 and 241(6) causes of action should have been granted. Plaintiff, while pouring a concrete floor, tripped over a drainage pipe which had been covered by a blanket to protect it from the concrete. The defendants demonstrated: (1) the pipe was open and obvious and not inherently dangerous; (2) they did not exercise supervisory control over plaintiff’s work; and (3), the Industrial Code provision which addresses accumulation of debris did not apply:

… [T]he defendants met their prima facie burden of demonstrating both that the allegedly dangerous condition was open and obvious and not inherently dangerous, and that they lacked the authority to supervise or control the plaintiff’s work. …

… [T]he defendants demonstrated that 12 NYCRR 23-1.7(e)(2) is inapplicable because the protruding drainage pipe over which the plaintiff allegedly fell was a permanent and an integral part of what was being constructed … . Sanchez v BBL Constr. Servs., LLC, 2022 NY Slip Op 00890, Second Dept 2-9-22

 

THERE WERE QUESTIONS OF FACT WHETHER PLAINTIFF SLIPPED AND FELL ON ICE AND SNOW IN A “PASSAGEWAY” WITHIN THE MEANING OF THE INDUSTRIAL CODE; THEREFORE DEFENDANT WAS NOT ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 241(6) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendant’s summary judgment on the Labor Law 241(6) should not have been granted. Plaintiff alleged he slipped and fell on ice and snow on a passageway which had not been cleared of ice and snow:

Labor Law § 241(6) imposes on owners, general contractors, and their agents a nondelegable duty to provide “reasonable and adequate protection” to workers engaged in construction, demolition, and excavation activities by complying with Industrial Code regulations that specify concrete safety directives, regardless whether they exercised supervision or control over the work … . Industrial Code § 23-1.7(d) provides that employers shall not allow any employee to use a “floor, passageway, walkway, scaffold, platform, or other elevated work surface which is in a slippery condition,” and specifically enumerates ice and snow as foreign substances that must be removed, sanded, or covered. Plaintiff was allegedly injured at the construction site where he was working when he slipped and fell on snow and ice after he had passed through a perimeter gate, towards his employer’s shanty nearby upon arriving for work one morning. Defendant construction manager … testified the shanty area “was commonly used as a roadway for egress” and an “egress path” for workers going from the office trailers on one side of the shanties to the building under construction. Although it is unclear on this record whether there was a defined path where plaintiff fell, it is also unclear whether he was within the “shanty area” that was used as a “roadway for egress” and an “egress path.” Accordingly, issues of fact exist as to whether plaintiff was in a defined walkway within the meaning of Industrial Code § 23-1.7(d) … . Lapinsky v Extell Dev. Co., 2022 NY Slip Op 00815, First Dept 2-8-22

 

DEFENDANT WAS A PRIME, NOT A GENERAL, CONTRACTOR AND DEMONSTRATED HE DID NOT EXERCISE SUPERVISION OR CONTROL OVER PLAINTIFF’S WORK; THEREFORE DEFENDANT WAS NOT LIABLE UNDER LABOR LAW 240(1) AND 241(6); HOWEVER, DEFENDANT DID EXERCISE SOME CONTROL OVER WORK-SITE SAFETY AND THEREFORE MAY BE LIABLE UNDER LABOR LAW 200 (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined defendant prime contractor, Kilian, did not supervise or control plaintiff’s work and therefore was not liable on the Labor Law 240(1) and 241(6) causes of action stemming from plaintiff’s fall down an open stairway at a house under construction. The Fourth Department noted the difference between a general contractor and a prime contractor. Here, Kilian (the prime contractor) demonstrated he did not exercise supervision or control over plaintiff’s work. However, Kilian did exercise some control over work-site safety and therefore may be liable under Labor Law 200 for the dangerous condition (open stairwell):

“A general contractor will be held liable under [Labor Law §§ 240 (1) and 241 (6)] if it was responsible for coordinating and supervising the entire construction project and was invested with a concomitant power to enforce safety standards and to hire responsible contractors” … . Here, Collins, not Kilian, hired plaintiff’s employer to perform work on the project, and Kilian established through the documentary evidence and deposition testimony that he exercised no control or supervision over plaintiff’s work and had no authority to enforce safety standards against plaintiff … . Thus, Kilian established as a matter of law that he was not a general contractor subject to liability pursuant to Labor Law §§ 240 (1) or 241 (6), and plaintiff failed to raise a triable issue of fact … . …

… [T]o the extent that the section 200 claim against Kilian is based on the theory that he was negligent with respect to the dangerous condition of the stairwell, we conclude that Kilian failed to establish as a matter of law that he did not have control over the work site or that he lacked actual or constructive notice of the dangerous condition, i.e., the unguarded, open stairwell … . Clifton v Collins, 2022 NY Slip Op 00780, Fourth Dept 2-4-22

 

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THE WRENCH WHICH FELL AND STRUCK PLAINTIFF COULD HAVE BEEN TETHERED TO THE WORKER WHO DROPPED IT; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION; PLAINTIFF NEED NOT SUBMIT AN EXPERT AFFIDAVIT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on the Labor Law 240(1) cause of action should have been granted. A wrench slipped out of a co-worker’s hand and fell 10 or 15 feet striking plaintiff. Defendant’s expert opinion that the wrench could not be tethered to a wall missed the point that the wrench could be tethered to the worker. Plaintiff was not required to submit an expert opinion:

Plaintiff is entitled to summary judgment on the Labor Law § 240(1) claim based on [defendant] NYCHA’s failure to provide an adequate safety device to protect him from falling objects that were required to be secured … . Third-party defendant Vestar, Inc.’s expert opinion that the wrench “could not have been functionally employed if it was secured/tethered on the parapet wall” completely misses the point, since the wrench could have been tethered to the worker. … [T]he accident report … made the recommendation “to use tethering devices while working from heights,” to prevent reoccurrence of such an accident … . Contrary to NYCHA’s and Vestar’s contention, plaintiff was not required to proffer an expert affidavit … . Rincon v New York City Hous. Auth., 2022 NY Slip Op 00639, First Dept 2-1-22

 

PLAINTIFF WAS IN A TRENCH WHEN HE WAS STRUCK BY THE BUCKET OF AN EXCAVATOR WHICH WAS ON THE EDGE OF THE TRENCH ABOVE HIM IN THIS LABOR LAW 240 (1), 241 (6) AND 200 ACTION; THERE WERE QUESTIONS OF FACT ABOUT WHETHER THE INJURY WAS THE RESULT OF THE USUAL AND ORDINARY DANGERS OF A CONSTRUCTION SITE AS OPPOSED TO A RISK CONTEMPLATED BY THE LABOR LAW (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiffs’ motion for summary judgment on the Labor Law 240 (1) and 241 (6) causes of action should not have been granted. Plaintiff was in a trench when he was struck by the bucket of an excavator which was on the edge of the trench above him:

Plaintiffs’ own submissions created a triable issue of fact concerning the manner in which the accident occurred … , specifically whether plaintiff was injured due to a risk contemplated by the statute or, alternatively, by ” ‘the usual and ordinary dangers of a construction site’ ” … . …

… [T]he court erred in granting plaintiffs’ motion with respect to liability on the Labor Law § 241 (6) cause of action insofar as it is premised upon alleged violations of 12 NYCRR 23-9.4 (c) and 23-9.5 (a). The issue of fact concerning the manner in which the accident occurred precludes a determination as a matter of law whether either of those regulations were violated … . Malvestuto v Town of Lancaster, 2022 NY Slip Op 00577, Fourth Dept 1-28-22

 

PLAINTIFF FELL THROUGH A SKYLIGHT HOLE WHEN ATTEMPTING TO REMOVE PLYWOOD WHICH WAS COVERING THE HOLE; PLAINTIFF WAS PROPERLY AWARDED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (FOURTH DEPT).

The Fourth Department determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action was properly granted. Plaintiff fell through a skylight hole while attempting to remove plywood which was covering the hole:

Plaintiff submitted his own deposition testimony, in which he testified that, at the time of his injury, he was removing the plywood covering of the skylight hole as part of his work of preparing to install the final roofing. Plaintiff further testified that, upon removing the plywood, he fell through the skylight hole, and he was given no safety device to protect him from falling. Even assuming, arguendo, that the plywood cover constituted a safety device … , we note that “the availability of a particular safety device will not shield an owner or general contractor from absolute liability if the device alone is not sufficient to provide safety without the use of additional precautionary devices or measures” … . While the plywood cover “may have provided proper protection when it was in place over the opening, . . . once it was removed plaintiff was exposed to an elevation-related risk which required additional precautionary measures or devices” … . Tanksley v LCO Bldg. LLC, 2022 NY Slip Op 00567, Fourth Dept 1-28-22

 

IN THIS SCAFFOLD-FALL CASE, EVIDENCE PLAINTIFF WAS INSTRUCTED TO USE GUARD RAILS ON THE SCAFFOLD BUT DID NOT REQUIRED DENIAL OF PLAINTFF’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT).

The First Department determined Supreme Court properly denied plaintiff’s motion for summary judgment in this scaffold-fall case. Defendants raised a question of fact with evidence plaintiff was instructed to use guard rails on the scaffold but did not:

… [T]hrough the testimony that plaintiff declined to use guardrails even though he was instructed to do so and even though guardrails were available, [defendants] raised an issue of fact as to whether plaintiff was the sole proximate of his accident, thus rendering summary judgment in his favor inappropriate … . Although the field supervisor did not witness the accident, he attested that he arrived on the scene as plaintiff was getting into the ambulance and proceeded straightaway to the worksite, where he found the Baker scaffold that plaintiff had been using to be in good condition, but the guardrails that plaintiff had been instructed to use leaning up against a nearby wall. Vargas v 1166 LLC, 2022 NY Slip Op 00528, 1-27-22

 

THE SCAFFOLD BRACING BAR OVER WHICH PLAINTIFF TRIPPED WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS; LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the scaffold-bracing bar over which plaintiff tripped was open and obvious and not inherently dangerous. Therefore the Labor Law 200 and common law negligence causes of action should have been dismissed:

… [T]he horizontal cross-bracing bar affixed to the scaffold, about 14 inches above the ground, which plaintiff tripped over while attempting to step over it, was open and obvious, and not inherently dangerous … . Plaintiff, a carpenter for 28 years, testified that the cross-bracing was readily observable, he was aware of its presence, having stepped over it without incident on four to six prior occasions, and that the bar was stationary and secure and did not move or shift when his foot struck it.

Plaintiff’s own imprudent act of attempting to climb over the cross-bracing bar, rather than use the available openings in the scaffold without bars, was the sole proximate cause of his injury … . Plaintiff was admittedly aware that a safer method was available to him, and instead chose not to use it … . Peranzo v WFP Tower D Co. L.P., 2022 NY Slip Op 00147, First Dept 1-11-22

 

QUESTION OF FACT WHETHER PLAINTFF SLIPPED AND FELL ON ICE OR SNOW IN AN AREA WHICH HAD BEEN CLEARED SUCH THAT IT CONSTITUTED A “PASSAGEWAY” WITHIN THE MEANING OF THE INDUSTRIAL CODE RE: THIS LABOR LAW 241(6) ACTION (FIRST DEPT).

The First Department determined there was a question of fact in this Labor Law 241(6) action about whether the area where plaintiff slipped and fell on ice or snow was a “passageway” within the meaning of the Industrial Code:

This personal injury action stems from injuries sustained by plaintiff when he allegedly slipped and fell on snow or ice while walking from an area on a roof, where he was performing mason work, to its exit. …

“Although the regulations do not define the term ‘passageway’ . . . , courts have interpreted the term to mean a defined walkway or pathway used to traverse between discrete areas as opposed to an open area” … . …

The record contains competing evidence as to the location of the accident, whether a path had been cleared so that workers could safely walk between the stairway and the location on the roof where the work was being performed and whether it was necessary for plaintiff to traverse the area where he allegedly fell. …

If, as defendants claim, plaintiff’s accident occurred outside of the passageway or pathway defendants claim existed, then issues of fact exist as to whether it was necessary for plaintiff to traverse that area as part of his work … . Venezia v LTS 711 11th Ave., 2022 NY Slip Op 00152, First Dept 1-11-22

 

A STAIRWAY CAN BE A “PASSAGEWAY” WITHIN THE MEANING OF THE INDUSTRIAL CODE; THE LABOR LAW 241(6) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined that a stairway where plaintiff fell could be a “passageway” within the meaning of the Industrial Code. Therefore the Labor Law 241(6) cause of action should not have been dismissed:

For purposes of the applicability of Industrial Code (12 NYCRR) § 23-1.7(d), a staircase may constitute a passageway when that staircase is the sole access to the work site … . Here, plaintiff and his coworkers were required to use the loading dock entrance, where they would check in with security and go down to the basement level; from the basement, the workers proceeded to the floors where construction was ongoing. Although workers had the option of using a single-stop elevator to gain access to the basement, plaintiff’s uncontradicted testimony showed that the workers used the staircase, not the elevator. At the time of plaintiff’s accident, he was with several coworkers, all of whom had just checked in with the security guard and were using the staircase. CJS offered no evidence that any of the workers for any of the contracted trades used the single-stop elevator for purposes other than delivering construction material. Under these circumstances, where the staircase on which plaintiff fell the way in which the workers generally accessed the basement level, the staircase was a passageway for Labor Law § 241(6) purposes … . Tolk v 11 W. 42 Realty Invs., L.L.C., 2022 NY Slip Op 00150, First Dept 1-11-22

 

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