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PLAINTIFF WAS STRUCK BY A FALLING OBJECT; COMPARATIVE NEGLIGENCE IS NOT A DEFENSE TO A LABOR LAW 240(1) CAUSE OF ACTION; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1), 200 AND COMMON LAW NEGLIGENCE CLAIMS SHOULD HAVE BEEN GRANTED; THERE WAS A QUESTION OF FACT ABOUT WHETHER ONE OF THE DEFENDANT’S EXERCISED SUPERVISORY CONTROL OVER THE SITE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action stemming from his being struck with a falling object. The allegation plaintiff should not have been where he was is an allegation of comparative negligence which is not a defense. Plaintiff also should have been awarded summary judgment on the Labor Law 200 and common law negligence causes of action against the statutory agent of the general contractor on the ground the agent caused the dangerous condition:

Plaintiff should have been awarded summary judgment on the issue of liability on his Labor Law § 240(1) claim as against Sweeney and Structure Tech. Sweeney, as general contractor, and Structure Tech, as subcontractor and statutory agent of Sweeney, may be held strictly liable for failing to provide overhead protection to plaintiff … . Thus even if, as Structure Tech’s superintendent testified, plaintiff was in an area of the worksite where he was not supposed to be at the time of his accident, this would at most constitute comparative negligence which is not a defense to a Labor Law § 240(1) claim … . Accordingly, the issue of their liability under Labor Law § 241(6) is academic … .

Plaintiff also should have been awarded summary judgment on his Labor Law § 200 and common-law negligence claims as against Structure Tech. As the statutory agent of the general contractor, Structure Tech may be held liable pursuant to Labor Law § 200 and under common-law negligence for injuries caused by a dangerous condition that it caused or created or of which it had actual or constructive notice … . Since no party disputes that a Structure Tech employee was responsible for dislodging the baluster and allowing it to fall and strike plaintiff, Structure Tech is liable to plaintiff under Labor Law § 200 and common-law negligence.

However, an issue of fact exists as to Sweeney’s liability to plaintiff under these claims based on the testimony of Structure Tech’s superintendent that it was, in fact, Sweeney’s superintendent who instructed Structure Tech to cut the baluster that ultimately struck plaintiff. If credited, this testimony could support a finding that Sweeney actually exercised supervisory control over the worksite so as to trigger liability under these claims … . Hewitt v NY 70th St. LLC, 2020 NY Slip Op 05853, First Dept 10-20-20

 

FALL WHILE UNLOADING A FLATBED TRUCK CAN BE A COVERED ACTIVITY AND INVOLVED AN ELEVATION-RELATED RISK; INDUSTRIAL CODE VIOLATION FIRST ASSERTED IN OPPOSITION PAPERS SHOULD NOT HAVE BEEN REJECTED; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) AND 241 (6) ACTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment on the Labor Law 240 (1) and 241 (6) causes of action should not have been granted. Plaintiff was unloading a man lift from a flatbed truck and was on the man lift when it rolled off the truck. The Fourth Department determined: (1) unloading a truck at an active construction site is a covered activity; (2) the fall involved an elevation-related risk; and (3), although an industrial code violation was first asserted in opposition paper, it should not have been rejected:

Delivery of equipment is a covered activity if the equipment is being delivered to an active construction site … or is being “readied for immediate use” … . Delivery of equipment is not a covered activity if it is being delivered to an inactive construction site and is merely being “stockpil[ed] for future use” … . …

Although a fall from a flatbed truck generally does not present the sort of elevation-related risk that Labor Law § 240 (1) is intended to cover … , we have distinguished those cases in which a falling object causes the injured worker to fall … . …

Although plaintiff alleged a violation of section 23-1.5 (c) (3) for the first time in opposition to the motion, a plaintiff may be entitled to leave to amend his or her bill of particulars where, as here, he or she makes a showing of merit, raises no new factual allegations or legal theories, and causes the defendant no prejudice … . Shaw v Scepter, Inc., 2020 NY Slip Op 05651, Fourth Dept 10-9-20

 

NO NEED TO SHOW THE LADDER WAS DEFECTIVE IN THIS LABOR LAW 240 (1) ACTION; IT WAS SUFFICIENT TO SHOW THE LADDER WAS UNSECURED AND FELL WHEN PLAINTIFF WAS STRUCK BY DEBRIS (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action should have been granted. Plaintiff was using an unsecured ladder when he was struck by debris causing him and the ladder to fall. There was no need to show the ladder was defective. It was sufficient to show the ladder was not secured:

The undisputed facts show prima facie that defendants violated Labor Law § 240(1) by failing to provide adequate safety devices to plaintiff, who was injured doing demolition work when the unsecured ladder he was using to remove a ceiling was struck by a piece of falling metal debris, causing him and the ladder to fall to the ground … . The record lacks any conflicting evidence relevant to the issue of whether Labor Law 240 (1) was violated, sufficient to raise a material issue of fact. The issues of fact relied upon by the motion court in denying partial summary judgment are immaterial to the issue of whether defendants’ violation of section 240(1) was a proximate cause of plaintiff’s injuries. Plaintiff was not required to show that the ladder he was using was defective, where testimony established prima facie that defendant failed to provide a safety device to insure the ladder would remain upright while plaintiff used it … . Avila v Saint David’s Sch., 2020 NY Slip Op 05571, First Dept 10-8-20

 

DEFENDANT MANUFACTURER OF METAL ROOFING WAS A CONTRACTOR WITHIN THE MEANING OF LABOR LAW 240 (1) BECAUSE IT HAD THE AUTHORITY TO EXERCISE CONTROL OVER PLAINTIFF’S WORK, EVEN IF IT DID NOT DO SO; PLAINTIFF SHOULD HAVE BEEN AWARDED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION STEMMING FROM A FALL FROM A ROOF WHERE THE METAL ROOFING WAS BEING INSTALLED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined defendant Union was a contractor within the meaning of Labor Law 240 (1) and plaintiff was entitled to summary judgment against Union on his Labor Law 240 (1) cause of action stemming from his fall from the roof of a residence where metal roofing manufactured by Union was being installed by plaintiff’s employer:

It is well settled that the Labor Law “holds . . . general contractors absolutely liable for any breach of the statute even if the job was performed by an independent contractor over which [they] exercised no supervision or control” … , inasmuch as “[t]heir status as contractors is dependent on their right to exercise control, not whether they in fact did so” … . In determining whether a defendant may be found liable pursuant to section 240 (1), it is well settled that, where, as here, a defendant “ha[s] the authority to choose the part[y] who did the work, and directly enter[s] into [a] contract[] with th[at party], it ha[s] the authority to exercise control over the work, even if it [does] not actually do so” … .

… [P]laintiff submitted evidence establishing that Union entered into a contract with plaintiff’s employer to install the roofing materials at issue and that the contract provided Union with the power to, inter alia, perform inspections, stop work, and remove plaintiff’s employer from the job. We therefore conclude that plaintiff demonstrated as a matter of law that Union is a “contractor” within the meaning of Labor Law § 240 (1) … . Barker v Union Corrugating Co., 2020 NY Slip Op 05349, Fourth Dept 10-2-20

 

LIABILITY UNDER LABOR LAW 200 DOES NOT REQUIRE THAT PLAINTIFF BE ENGAGED IN CONSTRUCTION WORK; HERE PLAINTIFF FELL OFF THE TOP OF A TRACTOR-TRAILER; THE LABOR LAW 200 CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s Labor Law 200 cause of action should not have been dismissed. The court noted that liability under Labor Law 200 does not require that the plaintiff be engaged in construction work:

Plaintiff was injured when he fell to the ground from the top of a tractor-trailer, as he was attempting to manually roll out a tarp to cover trash in the trailer, as required by [defendant] Tully. The trailer with the allegedly defective tarping mechanism was owned by Strength and leased to plaintiff’s employer.

Plaintiff is entitled to the protection afforded by Labor Law § 200 for his work because that section codifies the common-law duty of an owner to provide workers with a safe place to work, which is not limited to construction work … .

The record presents an issue of fact as to Tully’s authority to control the activity that brought about plaintiff’s injury … . Plaintiff testified that Tully directed him in how to proceed at the facility and mandated that he cover the trash with the tarp, and the facility manager testified that Tully had a policy prohibiting drivers from standing on the tops of trailers. There is also a factual issue as to whether Tully permitting the tractor-trailer to be overfilled created the condition that may have cause plaintiff’s injuries … . Landron v Wil-Cor Realty Co. Inc., 2020 NY Slip Op 05287, First Dept 10-1-20

 

PLAINTIFF WAS INJURED BY A HAZARD INHERENT IN THE JOB HE WAS HIRED TO DO; HIS LABOR LAW 200 CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment on plaintiff’s Labor Law 200 cause of action should have been granted because plaintiff was injured in the normal course of the tasks he was hired to do. Plaintiff was removing debris when his shovel struck a subway track:

The plaintiff’s specific task was to shovel concrete debris, which had been chipped from the subway tunnel’s walls, into bags for removal. During the project, eight-by-four foot pieces of plywood had been placed atop the subway tracks covering its rails and the trough between the rails, onto which the debris would fall making it easier to shovel. The plaintiff allegedly was injured when his shovel struck a rail of a track that was not covered by plywood. …

… The duty to provide workers with a safe place to work does not extend to hazards that are part of, or inherent in, the very work the worker is performing or defects the worker is hired to repair … .

Here, the defendants established, prima facie, that the plaintiff’s job responsibilities required him to remove the debris from the subway tracks, and that his alleged injuries were caused in the normal course of his removal of the debris in that area  … . In support of their motion, the defendants submitted, among other things, the transcripts of the deposition testimony … demonstrated that[defendant] decided to and actually placed the plywood over the tracks for the purpose of making it easier to remove the debris rather than for a safety purpose. Pacheco v Judlau Contr., Inc., 2020 NY Slip Op 05216, Second Dept 9-30-20

 

PLAINTIFF ALLEGEDLY FELL SIX FEET FROM A SCAFFOLD WITHOUT GUARD RAILS; PLAINTIFF’S SUMMARY JUDGMENT MOTION ON HIS LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED; DEFENDANT’S SUMMARY JUDGMENT MOTION ON PLAINTIFF’S LABOR LAW 200 CAUSE OF ACTION SHOULD HAVE BEEN GRANTED; AND DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 241 (6) CAUSE OF ACTION WAS PROPERLY DENIED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s summary judgment motion on his Labor Law 240 (1) cause of action should not have been granted, defendant’s (Henry Street’s) motion for summary judgment on plaintiff’s Labor Law 200 cause of action should have been granted, and defendant’s motion for summary judgment on plaintiff’s Labor Law 241 (6) cause of action was properly denied. Plaintiff fell approximate six feet for a scaffold which did not have guard rails:

The plaintiff failed to eliminate triable issues of fact as to whether the scaffolding at issue provided proper protection under Labor Law § 240(1) … . …

Here, the plaintiff’s accident did not involve any dangerous or defective condition on Henry Street’s premises. Rather, the accident involved the manner in which the plaintiff performed his work … . Henry Street established, prima facie, that it did not have the authority to exercise supervision and control over the subject work … . In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted that branch of Henry Street’s cross motion which was for summary judgment dismissing the causes of action alleging common-law negligence and a violation of Labor Law § 200 insofar as asserted against it. …

… [W]we agree with the Supreme Court’s determination to deny that branch of Henry Street’s cross motion which was for summary judgment dismissing so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated upon an alleged violation of Industrial Code provision 12 NYCRR 23-5.1(b) insofar as asserted against it. That section provides that “[t]he footing or anchorage for every scaffold erected on or supported by the ground, grade or equivalent surface shall be sound, rigid, capable of supporting the maximum load intended to be imposed thereon without settling or deformation and shall be secure against movement in any direction.” Henry Street failed to sustain its prima facie burden of demonstrating that Industrial Code provision 12 NYCRR 23-5.1(b) was either factually inapplicable to this case or was satisfied … . Medina-Arana v Henry St. Prop. Holdings, LLC, 2020 NY Slip Op 05199, Second Dept 9-30-20

 

A COMPONENT OF A TOWER CRANE WAS BEING HOISTED WHEN IT SWUNG TO THE SIDE AND PINNED PLAINTIFF; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON A LABOR LAW 241 (6) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on a Labor Law 241(6) cause of action:

The injured plaintiff allegedly was injured in the process of hoisting a component of the tower crane for assembly when the load, which had been stationary for several minutes, suddenly moved, swung to the side, struck the injured plaintiff, and pinned him against a plumber’s pipe. * * *

… [T]he plaintiffs were entitled to summary judgment on the issue of liability on so much of the Labor Law § 241(6) cause of action as was predicated upon a violation of 12 NYCRR 23-8.1(f)(2)(i). The plaintiffs established, prima facie, that the load suddenly moved and caused the injured plaintiff’s injuries (see 12 NYCRR 23-8.1[f][2][i] … ). In opposition, the defendants failed to raise a triable issue of fact, as “[t]he fact that the plaintiff may have been the sole witness to the accident does not preclude the award of summary judgment in his favor” … , and “[a]ny comparative negligence on the part of the plaintiff does not preclude liability founded upon a violation of Labor Law § 241(6)” … . Wein v East Side 11th & 28th, LLC, 2020 NY Slip Op 05085, Second Dept 9-23-20

PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION IN THIS FALLING OBJECT CASE; DEFENDANTS DID NOT DEMONSTRATE THE JOB WAS NOT A HARD HAT JOB PRECLUDING DISMISSAL OF PLAINTIFF’S LABOR LAW 241(6) CAUSE OF ACTION (SECOND DEPT).

The Second Department, modifying Supreme Court, determined: (1) plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action stemming from his being struck by an unsecured heating duct during demolition; and (2) defendants (appellants) were not entitled to summary judgment dismissing the Labor Law 241 (6) cause of action premised on plaintiff’s failure to wear a hard hat:

With respect to falling objects, liability is not limited to cases in which the falling object is in the process of being hoisted or secured … . Rather, “a plaintiff must show that the object fell . . . because of the absence or inadequacy of a safety device of the kind enumerated in the statute” … . “To succeed on a cause of action under Labor Law § 240(1), a plaintiff must establish that the defendant violated its duty and that the violation proximately caused the plaintiff’s injuries” … . The burden then shifts to the defendant to raise a triable issue of fact … . A worker’s comparative negligence is not a defense to a cause of action under Labor Law § 240(1) … . Rather, only where the worker’s own conduct is the sole proximate cause of the accident is recovery under Labor Law § 240(1) unavailable … .

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law on his Labor Law § 240(1) cause of action insofar as asserted against the owner and the general contractor by submitting evidence that while he was engaged in demolition work, he was injured when an unsecured HVAC duct fell and hit him, causing him to fall to the ground … . …

“In order to prevail on a Labor Law § 241(6) cause of action premised upon a violation of 12 NYCRR 23-1.8(c)(1), the plaintiff must establish that the job was a hard hat job, and that the plaintiff’s failure to wear a hard hat was a proximate cause of his injury” … . Here, the appellants failed to establish, prima facie, that this was not a hard hat job, and that the plaintiff’s lack of head protection did not play a role in the injuries he sustained when he was struck by the falling object. Aguilar v Graham Terrace, LLC, 2020 NY Slip Op 04906, Second Dept 9-16-20

 

QUESTION OF FACT WHETHER A PERMANENTLY AFFIXED LADDER VIBRATED CAUSING PLAINTIFF TO FALL; PLAINTIFF WAS ENGAGED IN REPAIR NOT ROUTINE MAINTENANCE; NO SHOWING PLAINTIFF WAS AWARE HE SHOULD WEAR A HARNESS AND FAILURE TO DO SO WOULD CONSTITUTE COMPARATIVE NEGLIGENCE WHICH IS NOT A BAR TO RECOVERY (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendants’ motion for summary judgment on the Labor Law 240 (1) cause of action should not have been granted. Plaintiff alleged a permanently affixed ladder in an elevator shaft vibrated causing him to fall to the floor of the shaft:

… [W]hile an unsecured ladder that moves or shifts constitutes a prima facie violation of Labor Law § 240(1) … , the ladder from which plaintiff fell was secured to the structure, and, other than allegedly vibrating, it did not move, shift or sway. Under the circumstances, an issue of fact exists whether the secured, permanently affixed ladder that allegedly vibrated provided proper protection for plaintiff.

The record demonstrates, contrary to defendants’ contention, that at the time of his accident plaintiff was performing not routine maintenance but repair work, which falls within the protective ambit of Labor Law § 240(1) … . The work in which plaintiff was engaged occurred over the course of weeks, if not longer, and its purpose was to correct the unguarded condition of traveling cables that caused the cables to strike other objects within the elevator shafts … . …

Defendants failed to establish that plaintiff was the sole proximate cause of his accident, as they submitted no evidence that plaintiff knew that he was supposed to use a harness for climbing ladders or that he disregarded “specific instructions” to do so . Further, to the extent the ladder failed to provide proper protection, plaintiff’s failure to use a harness amounts at most to comparative negligence, which is not a defense to a Labor Law § 240(1) claim … . Kehoe v 61 Broadway Owner LLC, 2020 NY Slip Op 04900, First Dept 9-3-20

 

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