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PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 241(6) CAUSE ACTION, CONTACT WITH A HANGING LIVE ELECTRIC WIRE, DEFENDANTS VICARIOUSLY LIABLE.

The First Department determined plaintiff was entitled to summary judgment on his Labor Law 241(6) cause of action. A portion of plaintiff’s harness touched an exposed electric wire. Defendants, who were vicariously liable, did not raise a question of fact about plaintiff’s comparative negligence:

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It is undisputed that violations of Industrial Code (12 NYCRR) § 23-1.13(b)(3) and (4) proximately caused the injuries sustained by plaintiff when a metal part of his safety harness contacted a live electrical wire, known as a BX cable, which was hanging down from a drop ceiling of a building under renovation. Appellants, as owner and general contractor, may be held liable for violation of those provisions, even though they impose obligations on the employer, since they have a nondelegable duty to provide adequate safety protections … . Appellants fail to point to any evidence that would support a finding that plaintiff was comparatively negligent, since he was acting pursuant to his foreman’s instructions and neither knew nor should have known that the cable was electrified, in the absence of any warnings, caution tape, or other such indications that workers should avoid the area … . Appellants’ assertion that they lacked notice of the presence of the exposed, electrified cable is irrelevant, “[s]ince an owner or general contractor’s vicarious liability under section 241(6) is not dependent on its personal capability to prevent or cure a dangerous condition” … . Rubino v 330 Madison Co., LLC, 2017 NY Slip Op 04210, 1st Dept 5-25-17

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 241(1) CAUSE ACTION, CONTACT WITH A HANGING LIVE ELECTRIC WIRE, DEFENDANTS VICARIOUSLY LIABLE)

PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION IRRESPECTIVE OF WHETHER PLYWOOD FELL WHILE HOISTED OR DURING INSTALLATION.

The Second Department determined plaintiff was properly awarded summary judgment on his Labor Law 240(1) cause of action irrespective of whether the plywood which struck him fell when it was being hoisted or when workers were about to install it:

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The single decisive question in determining whether Labor Law § 240(1) is applicable is whether the plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential … . “[F]alling object” liability under Labor Law § 240(1) is not limited to cases in which the falling object is in the process of being hoisted or secured …  but also where the plaintiff demonstrates that, at the time the object fell, it “required securing for the purposes of the undertaking” … .

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that the defendant failed to provide an adequate safety device to protect him and that this failure was a proximate cause of his injuries. This is so whether the sheet of plywood fell as it was being hoisted because it was not properly secured while it was being pulled up to the roof, as testified to by the plaintiff … , or whether the sheet of plywood fell from the hands of the plaintiff’s coworkers on the roof as it was being installed or about to be installed due to a failure to secure it, a theory advanced by the defendant … . Escobar v Safi, 2017 NY Slip Op 04099, 2nd Dept 5-24-17

 

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION IRRESPECTIVE OF WHETHER PLYWOOD FELL WHILE HOISTED OR DURING INSTALLATION)/FALLING OBJECTS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION IRRESPECTIVE OF WHETHER PLYWOOD FELL WHILE HOISTED OR DURING INSTALLATION)

FAILURE TO TIE OFF LANYARD WAS NOT THE SOLE PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S FALL, ABSENCE OF A GUARDRAIL ON THE SCAFFOLD REQUIRED SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION.

The First Department determined plaintiff’s decedent was entitled to summary judgment on the Labor Law 240 (1) cause of action. The scaffold from which decedent fell did not have a building-side guardrail. Therefore, decedent’s failure to tie off a lanyard was not the sole proximate cause of the fall:

The motion court correctly granted plaintiff summary judgment on her Labor Law § 240(1) claim against Columbia (the building owner) and Bovis (the construction manager). It is uncontested that the scaffolding lacked a guardrail on the side adjacent to the window opening through which decedent fell… . Given this violation of the Labor Law, decedent’s alleged failure to tie his lanyard to the scaffold is not the sole proximate cause of his fall… . Wilk v Columbia Univ., 2017 NY Slip Op 03892, 1st Dept 5-16-17

LABOR LAW-CONSTRUCTION LAW (FAILURE TO TIE OFF LANYARD WAS NOT THE SOLE PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S FALL, ABSENCE OF A GUARDRAIL ON THE SCAFFOLD REQUIRED SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION)/SOLE PROXIMATE CAUSE (LABOR LAW-CONSTRUCTION LAW, FAILURE TO TIE OFF LANYARD WAS NOT THE SOLE PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S FALL, ABSENCE OF A GUARDRAIL ON THE SCAFFOLD REQUIRED SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION)

LABOR LAW 240(1) LIABILITY IS NONDELEGABLE AND EXTENDS TO INDEPENDENT CONTRACTORS.

The Third Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. The scaffolding plaintiff was using collapsed and he fell 40 feet. The defendants alleged that the improper assembly of the scaffolding caused the collapse and plaintiff assembled the scaffolding. Therefore the defendants argued plaintiff’s acts constituted the sole proximate cause of his injuries, precluding recovery. However a contract indicated that another party was responsible for supplying safety equipment and meeting OSHA requirements. The court further noted that the general contractor (Varish) could not escape liability on the ground plaintiff was an independent contractor, not an employee:

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We find no merit in Varish’s contention that Labor Law § 240 (1) does not apply in that plaintiff was allegedly an independent contractor, not an employee. The duty to provide a safe working environment is nondelegable, and a contractor or owner and its agents may be liable “even though it exercised no control over, or supervision of, an independent contractor who performed the job” … . Griffin v AVA Realty Ithaca, LLC, 2017 NY Slip Op 03829, 3rd Dept 5-11-17

LABOR LAW-CONSTRUCTION LAW (LABOR LAW 240(1) LIABILITY IS NONDELEGABLE AND EXTENDS TO INDEPENDENT CONTRACTORS)/INDEPENDENT CONTRACTORS (LABOR LAW-CONSTRUCTION LAW, LABOR LAW 240(1) LIABILITY IS NONDELEGABLE AND EXTENDS TO INDEPENDENT CONTRACTORS)

HOMEOWNER’S MOTION FOR SUMMARY JUDGMENT ON LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION PROPERLY DENIED, HOMEOWNER DID NOT DEMONSTRATE HE DID NOT CONTROL AND SUPERVISE PLAINTIFF’S WORK OR DID NOT CREATE OR WAS NOT AWARE OF THE DANGEROUS CONDITION.

The Second Department determined defendant homeowner’s motion for summary judgment on the Labor Law 240(1), 241(6) and 200 causes of action were properly denied. Defendant did not demonstrate he did not control and supervise plaintiff’s work and he did not demonstrate he did not create or was not aware of the dangerous condition. Therefore the motion was properly denied without reference to plaintiff’s opposing papers:

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“Labor Law §§ 240 and 241 provide an exemption for owners of single and two-family houses such that liability can only be imposed where the homeowner directs or controls the work being performed” … . “In this regard, the phrase direct or control’ is to be strictly construed and, in ascertaining whether a particular homeowner’s actions amount to direction or control of a project, the relevant inquiry is the degree to which the owner supervised the method and manner of the actual work being performed by the injured employee” … . Here, the proof submitted in support of the defendant’s motion for summary judgment raises triable issues of fact as to whether he exercised the requisite degree of direction and control over the injury-[*2]producing method of work so as to impose liability under Labor Law §§ 240(1) and 241(6) … . * * *

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“[W]hen a worker at a job site is injured as a result of a dangerous or defective premises condition, a property owner’s liability under Labor Law § 200 and for common-law negligence rests upon whether there is evidence that the property owner created the condition, or had actual or constructive notice of it and a reasonable amount of time within which to correct the condition” … . “[W]hen a worker at a job site is injured as a result of dangerous or defective equipment used in the performance of work duties, the property owner’s liability under Labor Law § 200 and for common-law negligence rests upon whether the property owner had the authority to supervise or control the means and methods of the work”… . Where, as here, “an accident is alleged to involve defects in both the premises and the equipment used at the work site, the property owner moving for summary judgment with respect to causes of action alleging a violation of Labor Law § 200 is obligated to address the proof applicable to both liability standards” … . Wadlowski v Cohen, 2017 NY Slip Op 03797, 2nd Dept 5-10-17

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LABOR LAW-CONSTRUCTION LAW (HOMEOWNER’S MOTION FOR SUMMARY JUDGMENT ON LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION PROPERLY DENIED, HOMEOWNER DID NOT DEMONSTRATE HE DID NOT CONTROL AND SUPERVISE PLAINTIFF’S WORK OR DID NOT CREATE OR WAS NOT AWARE OF THE DANGEROUS CONDITION)

DEFECT WHICH ALLEGEDLY CAUSED PLAINTIFF TO FALL WAS NOT DESIGNED TO PROTECT AGAINST FALLS AND THEREFORE WAS NOT ACTIONABLE UNDER LABOR LAW 240 (1), PLAINTIFF NOT ENGAGED IN CONSTRUCTION, DEMOLITION OR EXCAVATION, THEREFORE LABOR LAW 241 (6) NOT APPLICABLE.

The Second Department determined plaintiff’s Labor Law 240 (1) cause of action was properly dismissed because, although he fell when getting out of an aerial bucket, the bucket was not extended and his injury was not related to the failure of a safety device designed to prevent falls. Plaintiff alleged he fell from the bucket because his foot got caught in an electrical device inside the bucket from which the cover was missing. In addition, the Labor Law 241 (6) cause of action was properly dismissed because plaintiff was not involved in construction, demolition or excavation at the time of the injury (he was hired to place an antenna on a utility pole):

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… [T]he bucket truck from which the injured plaintiff fell was not defective or inadequate insofar as it related to providing him with fall protection … . Although the dielectric liner was missing from the bucket, the injured plaintiff’s own deposition testimony was that this device was designed to protect workers from electrical shocks, and not falls. Therefore, its absence did not constitute a failure to protect pursuant to Labor Law § 240(1) … . …

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Further, the … defendants established, prima facie, that the work the injured plaintiff was performing at the time of the accident did not involve construction, demolition, or excavation and, accordingly, that Labor Law § 241(6) does not apply … . Robinson v National Grid Energy Mgt., LLC, 2017 NY Slip Op 03787, 2nd  Dept 5-10-17

 

LABOR LAW-CONSTRUCTION LAW (DEFECT WHICH ALLEGEDLY CAUSED PLAINTIFF TO FALL WAS NOT DESIGNED TO PROTECT AGAINST FALLS AND THEREFORE WAS NOT ACTIONABLE UNDER LABOR LAW 240 (1), PLAINTIFF NOT ENGAGED IN CONSTRUCTION, DEMOLITION OR EXCAVATION, THEREFORE LABOR LAW 241 (6) NOT APPLICABLE)

THE LADDER PLAINTIFF WAS USING WOBBLED, SPUN AND FELL OVER, PLAINTIFF WAS PROPERLY AWARDED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION.

The First Department determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action. Plaintiff alleged the ladder on which he was standing wobbled causing him to fall. The court distinguished a recent Court of Appeals case which found a question of fact precluded summary judgment where plaintiff fell on wet temporary exterior stairs. The First Department noted there is a presumption that a ladder or scaffold which fails did not provide adequate protection:

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As the Court of Appeals recently reiterated in O’Brien v Port Auth. of N.Y. & N.J. (_ NY3d _, 2017 NY Slip Op 02466 … , ‘The fact that a worker falls at a construction site, in itself, does not establish a violation of Labor Law § 240(1).” “Rather, liability is contingent upon the existence of a hazard contemplated in section 240(1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein” … . However, “[i]n cases involving ladders or scaffolds that collapse or malfunction for no apparent reason,” the Court of Appeals has applied “a presumption that the ladder or scaffolding device was not good enough to afford proper protection” …  — a presumption that the O’Brien Court recognized but found inapplicable to the facts before it, which involved a fall from an exterior stairway.

Here, plaintiff established prima facie that Labor Law § 240(1) was violated through his testimony that the ladder from which he fell wobbled during its use … , that two of the ladder’s rubber feet were missing …, and that the ladder spun and fell over … . Kebe v Greenpoint-Goldman Corp., 2017 NY Slip Op 03712, 1st Dept 5-9-17

LABOR LAW-CONSTRUCTION LAW (THE LADDER PLAINTIFF WAS USING WOBBLED, SPUN AND FELL OVER, PLAINTIFF WAS PROPERLY AWARDED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION)/LADDERS (LABOR LAW-CONSTRUCTION LAW, THE LADDER PLAINTIFF WAS USING WOBBLED, SPUN AND FELL OVER, PLAINTIFF WAS PROPERLY AWARDED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION)

LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, PLAINTIFF, WHO WAS USING STILTS, FELL WHEN A STILT CONTACTED AN OBJECT ON THE FLOOR.

The Fourth Department determined defendant’s motion for summary judgment in this Labor law 240 (1) action should not have been granted. Plaintiff was using stilts to work on a ceiling when a stilt contacted a conduit on the floor, causing him to fall:

Even assuming, arguendo, that defendant established its entitlement to judgment on the theory that plaintiff’s fall was caused solely by stepping on the conduit, i.e., a “separate hazard wholly unrelated to the risk which brought about the need for the safety device in the first place” … , we nevertheless conclude that plaintiff raised an issue of fact sufficient to defeat the motion … In his affidavit submitted in opposition to defendant’s motion, plaintiff clarified his deposition testimony with respect to why and how he fell … . Plaintiff was installing the last of eight ceiling tiles in a room. He explained in his deposition and in his affidavit that his work was obstructed by electrical wiring and conduit in the ceiling that had not been properly secured, thereby leaving limited space in which to install the tile, which measured two feet by four feet. With his arms fully extended overhead while attempting to move and secure the electrical wiring and conduit, he lost his balance and was forced to step backwards, at which point his right stilt came into contact with the conduit and he fell. Thus, plaintiff raised an issue of fact whether his “injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant height differential” while he was attempting to secure the electrical wiring and conduit in the ceiling in order to install the ceiling tile … , and were not solely caused by the presence of the conduit on the floor … . Piche v Synergy Tooling Sys., Inc., 2017 NY Slip Op 03673, 4th Dept 5-5-17

LABOR LAW-CONSTRUCTION LAW (LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, PLAINTIFF, WHO WAS USING STILTS, FELL WHEN A STILT CONTACTED AN OBJECT ON THE FLOOR)/STILTS (LABOR LAW-CONSTRUCTION LAW, ABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, PLAINTIFF, WHO WAS USING STILTS, FELL WHEN A STILT CONTACTED AN OBJECT ON THE FLOOR)

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ELECTRICIAN SLIPPED AND FELL ON ICE IN DRIVEWAY OF DEFENDANTS’ HOME, DEFENDANTS, WHO WERE OUT-OF-STATE, DID NOT DEMONSTRATE WHEN THE DRIVEWAY WAS LAST INSPECTED OR WHAT THE CONDITION OF THE DRIVEWAY WAS ON THE DAY OF THE SLIP AND FALL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 200 CAUSE OF ACTION PROPERLY DENIED.

The Second Department determined the homeowners, who were living out-of-state while their home was being renovated, did not meet their burden of proof for summary judgment in this slip and fall case brought under Labor Law 200. Plaintiff, an electrician, alleged he slipped and fell on ice in the defendants’ driveway. The defendants didn’t demonstrate when the driveway was last inspected or what the condition of the driveway was when plaintiff fell, so the motion was denied without reference to plaintiff’s responding papers:

The Supreme Court properly determined that the homeowners had a duty to keep their property in a reasonably safe condition and provide workers with a safe place to work, even though they were residing out of state at the time of the accident … . In addition, contrary to the homeowners’ contention, the plaintiff’s alleged injuries stem from a dangerous condition on the premises … , and not from the manner in which work was performed … . Further, the court properly concluded that the homeowners failed to establish, prima facie, that they lacked constructive notice of the alleged icy condition in the driveway … . The evidence submitted in support of the homeowners’ motion, which included transcripts of the plaintiff’s and their own deposition testimony, failed to establish when they or the company they contracted with to provide snow removal on the driveway last inspected the driveway, or what the driveway looked like on the day of the accident … . DeFelice v Seakco Constr. Co., LLC, 2017 NY Slip Op 03481, 2nd Dept 5-3-17

LABOR LAW-CONSTRUCTION LAW (ELECTRICIAN SLIPPED AND FELL ON ICE IN DRIVEWAY OF DEFENDANTS’ HOME, DEFENDANTS, WHO WERE OUT-OF-STATE, DID NOT DEMONSTRATE WHEN THE DRIVEWAY WAS LAST INSPECTED OR WHAT THE CONDITION OF THE DRIVEWAY WAS ON THE DAY OF THE SLIP AND FALL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 200 CAUSE OF ACTION PROPERLY DENIED)/NEGLIGENCE (LABOR LAW 200, ELECTRICIAN SLIPPED AND FELL ON ICE IN DRIVEWAY OF DEFENDANTS’ HOME, DEFENDANTS, WHO WERE OUT-OF-STATE, DID NOT DEMONSTRATE WHEN THE DRIVEWAY WAS LAST INSPECTED OR WHAT THE CONDITION OF THE DRIVEWAY WAS ON THE DAY OF THE SLIP AND FALL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 200 CAUSE OF ACTION PROPERLY DENIED)/SLIP AND FALL (LABOR LAW 200, ELECTRICIAN SLIPPED AND FELL ON ICE IN DRIVEWAY OF DEFENDANTS’ HOME, DEFENDANTS, WHO WERE OUT-OF-STATE, DID NOT DEMONSTRATE WHEN THE DRIVEWAY WAS LAST INSPECTED OR WHAT THE CONDITION OF THE DRIVEWAY WAS ON THE DAY OF THE SLIP AND FALL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 200 CAUSE OF ACTION PROPERLY DENIED)

QUESTION OF FACT WHETHER SCAFFOLD WAS AN ADEQUATE SAFETY DEVICE UNDER THE CIRCUMSTANCES, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED.

The Fourth 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. There was a question of fact whether the scaffold was an adequate safety device because defendant alleged he was ordered to work on the scaffold when it was not high enough to reach his work area:

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Inasmuch as a modification to the scaffold was required and could have taken hours to be performed, we conclude that there are triable issues of fact whether an adequate safety device was “readily available” for plaintiff’s use … . Moreover, based on plaintiff’s testimony describing the third supervisor’s instructions, we conclude that there are triable issues of fact whether plaintiff chose “for no good reason” not to wait for the scaffold to be modified … . Although the third supervisor denied making such a comment, that denial merely establishes that neither party is entitled to summary judgment on the Labor Law § 240 (1) claim. Videan v NRG Energy, Inc., 2017 NY Slip Op 03315, 4th Dept 4-28-17

LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER SCAFFOLD WAS AN ADEQUATE SAFETY DEVICE UNDER THE CIRCUMSTANCES, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED)/SCAFFOLDS (LABOR LAW-CONSTRUCTION LAW, QUESTION OF FACT WHETHER SCAFFOLD WAS AN ADEQUATE SAFETY DEVICE UNDER THE CIRCUMSTANCES, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED)

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