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IN THIS LABOR LAW 240(1), 241(6) AND 200 TRIAL, THE DEFENDANTS’ MOTION FOR A JUDGMENT AS A MATTER OF LAW ON THE LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION BASED UPON THE HOMEOWNER’S EXEMPTION SHOULD NOT HAVE BEEN GRANTED, THE BETTER PRACTICE WOULD HAVE BEEN TO RESERVE ON THE MOTION AND LET THE MATTER GO TO THE JURY; AND PLAINTIFF’S MOTION TO SET ASIDE THE LABOR LAW 200 VERDICT SHOULD HAVE BEEN GRANTED BECAUSE THE VERDICT WAS INCONSISTENT; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for a judgment as a matter of law pursuant to CPLR 4401 should have been denied and plaintiff’s motion to set aside the verdict pursuant to CPLR 4404 (a) in this Labor Law 240 (1), 241 (6) and 200 scaffold-fall case should have been granted. The defendants’ motion to dismiss the Labor Law 240 (1) and 241 (6) causes of action were granted because the court found defendants exempt pursuant to the homeowner exemption. Plaintiff moved to set aside the verdict because the jury found the defendant homeowner (Nielson) was negligent in striking the scaffold with a Bobcat, but also illogically found the negligence was not the proximate cause of the accident:

Contrary to the Supreme Court’s determination, we conclude that different inferences could be drawn from the evidence on the issue of whether Nielson had authority to or exercised authority to direct or control the work. Affording the plaintiff the benefit of every favorable inference and considering the evidence in the light most favorable to the plaintiff, there was a rational process by which a jury could find that the defendants were not exempt from liability by reason of the homeowner exemption under Labor Law §§ 240(1) and 241(6), and could find that they were liable under Labor Law § 200 … .

We note that, in the interest of judicial economy, the better practice would have been for the Supreme Court to reserve determination on the motion for a directed verdict on the Labor Law causes of action, and allow those causes of action to go to the jury. “There is little to gain and much to lose by granting the motion for judgment as a matter of law after . . . the evidence has been submitted to the jury and before the jury has rendered a verdict. If the appellate court disagrees, there is no verdict to reinstate and the trial must be repeated” … . …

Assuming that Nielson struck the scaffold with the Bobcat, which was the only theory of common-law negligence presented by the plaintiff, then it is logically impossible under the circumstances to find that such negligence was not a substantial factor in causing the accident. Thus, the issues of negligence and proximate cause were so inextricably interwoven as to make it logically impossible to find Nielson negligent without also finding proximate cause. Brewer v Ross, 2020 NY Slip Op 06483, Second Dept 11-12-20

 

PLAINTIFF STEPPED INTO A TRENCH WHICH HAD BEEN FILLED WITH SOFT SOIL AND SANK DOWN TO ABOVE HIS KNEE; SUMMARY JUDGMENT ON PLAINTIFF’S 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 on the Labor Law 240(1) cause of action should have been granted. Plaintiff stepped into a trench that had been filled with soft soil and sank into the soil past his knee:

It is undisputed that no safety devices were provided to plaintiff to protect him against the gravity-related risk of descending a significant distance into the trench. Thus, plaintiff established prima facie his entitlement to partial summary judgment on the Labor Law § 240(1) claim … . The elevation differential between the ground level and the lower level to which plaintiff’s foot and leg sank is analogous to the risk that a worker standing on a platform on a body of water would fall into the water, which we have found to be covered by Labor Law § 240 … . Defendants failed to submit evidence that no safety devices could have prevented the accident … . Sunun v Klein, 2020 NY Slip Op 06471, First Dept 11-12-20

 

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WHERE A LADDER SHIFTS OR SLIDES FOR NO APPARENT REASON A VIOLATION OF LABOR LAW 240 (1) IS ESTABLISHED; DEFENDANT’S MOTION TO SET ASIDE THE VERDICT IN THIS LADDER-FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s verdict in this Labor Law 240 (1) action should not have been set aside. Plaintiff used a ladder which kicked out from under him. The Second Department included a clear explanation of when a fall from a ladder is actionable under Labor Law 240 (1). If for example plaintiff merely loses his or her balance and falls off a stable ladder, the incident is not actionable. However, if the ladder shifts or slides for no apparent reason, the incident is actionable:

To establish a violation under Labor Law § 240(1), “[t]here must be evidence that the ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing the plaintiff’s injuries” … . Where, for instance, the plaintiff falls from a ladder because the plaintiff lost his or her balance, and there is no evidence that the ladder was defective or inadequate, liability pursuant to Labor Law § 240(1) does not attach … . By contrast, where a ladder slides, shifts, tips over, or otherwise collapses for no apparent reason, the plaintiff has established a violation … . …

…[W]we disagree with the Supreme Court’s determination to set aside the jury verdict and direct judgment as a matter of law on the ground that the plaintiff was the sole proximate cause of the accident. At the trial, the parties presented conflicting evidence as to whether adequate safety devices—namely, the CTS [the employer’s] ladders and/or the scissor lift—were available, whether the plaintiff knew that he was expected to use those devices, and, if so, whether he had a good reason for choosing instead to use the non-CTS ladder … . … [C]onstruing the trial evidence in the light most favorable to the plaintiffs, there was a valid line of reasoning and permissible inferences which could have led a rational jury to conclude that the plaintiff was neither a recalcitrant worker nor the sole proximate cause of his injuries … . Cioffi v Target Corp., 2020 NY Slip Op 06487, Second Dept 11-12-20

 

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

 

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