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FALL ON THE SURFACE OF SCAFFOLDING NOT COVERED BY LABOR LAW 240(1), OVERSIGHT OF SITE SAFETY NOT ENOUGH FOR LABOR LAW 200 LIABILITY, SLIP AND FALL ON DUST ENTITLED PLAINTIFF TO SUMMARY JUDGMENT ON LABOR LAW 241(6) CAUSE OF ACTION.

The First Department determined plaintiff was entitled to summary judgment on his Labor Law 241(6) cause of action. Plaintiff slipped on accumulated dust and fell to the scaffolding surface (he did not fall off the scaffolding). The Labor Law 240(1) cause of action was properly dismissed because the fall was not related to the failure to provide a safety device. The Labor Law 200 cause of action was properly dismissed because the defendant’s general oversight of the worksite did not amount to supervisory control over the means or methods of plaintiff’s work:

The Labor Law § 240(1) claim was correctly dismissed since plaintiff’s injuries “result[ed] from a separate hazard wholly unrelated to the danger that brought about the need for the safety device[s] in the first instance” … . Plaintiff does not point to any evidence that he was injured as a result of any attempts to avoid falling off the scaffold … . The accumulation of paint chips and dust on the platform on which plaintiff was working “was one of the usual and ordinary dangers at a construction site[,] to which the extraordinary protections of Labor Law § 240(1) [do not] extend” … .

The Labor Law § 200 and common-law negligence claims were correctly dismissed since the evidence that defendant’s safety officer instructed plaintiff and his coworkers on safety rules, exercised general oversight over site safety, and conducted site walk-throughs does not establish that defendant exercised supervisory control over the means or methods of plaintiff’s work … . Serrano v Consolidated Edison Co. of N.Y. Inc., 2017 NY Slip Op 00003, 1st Dept 1-3-17

 

LABOR LAW-CONSTRUCTION LAW (FALL ON THE SURFACE OF SCAFFOLDING NOT COVERED BY LABOR LAW 240(1), OVERSIGHT OF SITE SAFETY NOT ENOUGH FOR LABOR LAW 200 LIABILITY, SLIP AND FALL ON DUST ENTITLED PLAINTIFF TO SUMMARY JUDGMENT ON LABOR LAW 241(6) CAUSE OF ACTION)/DUST (LABOR LAW-CONSTRUCTION LAW, SLIP AND FALL ON DUST ENTITLED PLAINTIFF TO SUMMARY JUDGMENT ON LABOR LAW 241(6) CAUSE OF ACTION)

PLAINTIFF ALLEGED HE WAS PROVIDED WITH A DEFECTIVE LADDER, QUESTION OF FACT WHETHER THE LADDER WAS A DANGEROUS CONDITION CREATED BY DEFENDANT OR OF WHICH DEFENDANT HAD NOTICE, LABOR LAW 200 CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED.

The First Department, reversing Supreme Court, determined plaintiff’s Labor Law 200 claims should not have been dismissed. Plaintiff alleged defendant provided him with a defective ladder (proper footing missing) and he was injured when the ladder slipped from under him. The court explained that the proper analysis, where the accident did not arise from the means or methods of work, is whether defendant created or had notice of the dangerous condition:

Where, as here, plaintiff alleged that defendants — the premises owners — provided him with the defective ladder, “the legal standard that governs claims under Labor Law § 200 is whether the owner created the dangerous or defective condition or had actual or constructive notice thereof,” not whether the accident arose out of the means and methods of plaintiff’s work … .

The conflicting deposition testimony submitted by the parties shows that there is a triable issue as to whether defendants provided plaintiff with the allegedly defective ladder. Moreover, plaintiff’s testimony that the ladder was missing its feet was sufficient to raise an issue of fact as to whether defendants had constructive notice of the defect because of its visible and apparent nature … . Jaycoxe v VNO Bruckner Plaza, LLC, 2017 NY Slip Op 00012, 1st Dept 1-3-17

 

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ALLEGED HE WAS PROVIDED WITH A DEFECTIVE LADDER, QUESTION OF FACT WHETHER THE LADDER WAS A DANGEROUS CONDITION CREATED BY DEFENDANT OR OF WHICH DEFENDANT HAD NOTICE, LABOR LAW 200 CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED)/LADDERS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF ALLEGED HE WAS PROVIDED WITH A DEFECTIVE LADDER, QUESTION OF FACT WHETHER THE LADDER WAS A DANGEROUS CONDITION CREATED BY DEFENDANT OR OF WHICH DEFENDANT HAD NOTICE, LABOR LAW 200 CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED)

PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION BASED UPON A DEFECTIVE LADDER, BUT NOT ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 241(6) CAUSE OF ACTION, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT.

The Second Department determined plaintiff, who alleged a defective stepladder was the cause of his fall, was entitled to summary judgment on his Labor Law 240(1) cause of action (comparative negligence is not a factor). However, plaintiff should not have been awarded summary judgment on his Labor Law 241(6) cause action (alleging a violation of the industrial code) because plaintiff did not demonstrate his freedom from comparative negligence:

The plaintiff established, prima facie, that the defendant violated Labor Law § 240(1), as the owner of the building where the plaintiff was working, by providing a ladder with a defective supporting bracket, which caused the ladder to move and the plaintiff to fall to the ground … . The fact that the plaintiff may have been the sole witness to the accident does not preclude the award of summary judgment in his favor … . …

However, the plaintiff failed to establish, prima facie, the defendant’s liability under Labor Law § 241(6). Although the evidence demonstrated that the ladder’s defective supporting bracket, which the plaintiff had complained about prior to the accident, constituted a violation of 12 NYCRR 23-1.21(b)(3) … , the plaintiff failed to demonstrate his freedom from comparative negligence … . Cardenas v 111-127 Cabrini Apts. Corp., 2016 NY Slip Op 08835, 2nd Dept 12-28-16

 

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION BASED UPON A DEFECTIVE LADDER, BUT NOT ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 241(6) CAUSE OF ACTION, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT)/COMPARATIVE FAULT (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION BASED UPON A DEFECTIVE LADDER, BUT NOT ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 241(6) CAUSE OF ACTION, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT)/LADDERS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION BASED UPON A DEFECTIVE LADDER, BUT NOT ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 241(6) CAUSE OF ACTION, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT)

HEIGHT DIFFERENTIAL DEEMED DE MINIMUS AND NOT ACTIONABLE UNDER LABOR LAW 240(1), PIPE WHICH FELL WAS ONE FOOT ABOVE PLAINTIFF’S HEAD AND WITHIN HIS REACH.

The Fourth Department, over a two-justice dissent, determined plaintiff’s Labor Law 240(1) cause of action was properly dismissed. Plaintiff was working in the basement when a pipe, which was one foot above him and was within his reach, fell and injured him. The majority found the height differential “de minimus” and therefore not actionable:

“Liability may . . . be imposed under [Labor Law § 240 (1)] only where 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’ ” … . Although there is conflicting deposition testimony concerning the exact elevation of the pipe, it is undisputed that the pipe was, at most, one foot above plaintiff’s head, and that the pipe was always within his reach. We therefore conclude that plaintiff’s injury did not fall within the scope of section 240 (1) inasmuch as “any height differential between plaintiff and the [pipe] that fell on him was de minimis” … . Kuhn v Giovanniello, 2016 NY Slip Op 08633, 4th Dept 12-23-16

LABOR LAW-CONSTRUCTION LAW (HEIGHT DIFFERENTIAL DEEMED DE MINIMUS AND NOT ACTIONABLE UNDER LABOR LAW 240(1), PIPE WHICH FELL WAS ONE FOOT ABOVE PLAINTIFF’S HEAD AND WITHIN HIS REACH)/DE MINIMUS (LABOR LAW-CONSTRUCTION LAW (HEIGHT DIFFERENTIAL DEEMED DE MINIMUS AND NOT ACTIONABLE UNDER LABOR LAW 240(1), PIPE WHICH FELL WAS ONE FOOT ABOVE PLAINTIFF’S HEAD AND WITHIN HIS REACH)/HEIGHT DIFFERENTIAL (LABOR LAW-CONSTRUCTION LAW (HEIGHT DIFFERENTIAL DEEMED DE MINIMUS AND NOT ACTIONABLE UNDER LABOR LAW 240(1), PIPE WHICH FELL WAS ONE FOOT ABOVE PLAINTIFF’S HEAD AND WITHIN HIS REACH)

LOADING LADDERS ONTO A TRUCK DID NOT CREATE AN ELEVATION-RELATED RISK, PLAINTIFF’S NEGLIGENCE WAS THE SOLE PROXIMATE CAUSE OF HIS INJURY.

The First Department determined loading ladders onto a truck did not create an elevation-related risk contemplated by Labor Law 240(1). The ladders slid into plaintiff when plaintiff released a bungee cord. The court further determined plaintiff’s negligence (releasing the bungee cord) was the sole proximate cause of his injury:

The work that plaintiff was engaged in when he was injured, i.e., retrieving ladders that his employer had used in its work at the site, was a construction-related activity covered by Labor Law §§ 240(1) and 241(6) … . However, it did not present an elevation-related risk contemplated by Labor Law § 240(1) … . Moreover, in view of plaintiff’s testimony that he did not notice the tilt of the truck onto which he was loading the ladders, any elevation differential resulting from the tilt was de minimis. Nor is Industrial Code (12 NYCRR) § 23-1.7(e), which requires that passageways and working areas be kept free of accumulations of dirt and debris, a proper predicate for plaintiff’s Labor Law § 241(6) claim, since the area outside the gate to the loading dock where plaintiff parked his truck was not a passageway or working area … . * * *

… [T]he record demonstrates as a matter of law that plaintiff was the sole proximate cause of his accident … . Although the first ladder that he loaded onto the rack atop the truck slid toward the end of the rack as he loaded it, after plaintiff had secured it with a bungee cord and loaded the second ladder, instead of taking another of the several bungee cords available to him, he unhooked the bungee cord securing the first ladder, intending to wrap it around both ladders, and the ladders slid into him and knocked him off the truck. Guido v Dormitory Auth. of the State of N.Y., 2016 NY Slip Op 08600, 1st Dept 12-22-16

 

LABOR LAW-CONSTRUCTION LAW (LOADING LADDERS ONTO A TRUCK DID NOT CREATE AN ELEVATION-RELATED RISK, PLAINTIFF’S NEGLIGENCE WAS THE SOLE PROXIMATE CAUSE OF HIS INJURY)/TRUCKS (LABOR LAW-CONSTRUCTION LAW, LOADING LADDERS ONTO A TRUCK DID NOT CREATE AN ELEVATION-RELATED RISK, PLAINTIFF’S NEGLIGENCE WAS THE SOLE PROXIMATE CAUSE OF HIS INJURY)/ELEVATION-RELATED RISK (LABOR LAW-CONSTRUCTION LAW, LOADING LADDERS ONTO A TRUCK DID NOT CREATE AN ELEVATION-RELATED RISK, PLAINTIFF’S NEGLIGENCE WAS THE SOLE PROXIMATE CAUSE OF HIS INJURY)/SOLE PROXIMATE CAUSE (LABOR LAW-CONSTRUCTION LAW, LOADING LADDERS ONTO A TRUCK DID NOT CREATE AN ELEVATION-RELATED RISK, PLAINTIFF’S NEGLIGENCE WAS THE SOLE PROXIMATE CAUSE OF HIS INJURY)

PLAINTIFF NEED NOT BE ENGAGED IN CONSTRUCTION WORK TO BRING A LABOR LAW 200 CAUSE OF ACTION ALLEGING INJURY CAUSED BY A DANGEROUS CONDTION.

The Second Department determined plaintiff’s Labor Law 200 cause of action should not have been dismissed. Plaintiff was working for a mover, moving items out of a basement when he fell into a hole which had been dug for soil samples in anticipation of construction. Labor Law 200 was applicable, even though plaintiff was not engaged in construction work:

Where, as here, “a plaintiff’s injuries stem not from the manner in which the work was being performed, but, rather, from a dangerous condition on the premises, a general contractor may be liable in common-law negligence and under Labor Law § 200 only if it had control over the work site and either created the dangerous condition or had actual or constructive notice of it” … . [The general contractor] failed to establish, prima facie, that it did not have control over the work site, or that it did not create or have actual or constructive notice of the alleged dangerous condition … . Rocha v GRT Constr. of N.Y., 2016 NY Slip Op 08555, 2nd Dept 12-21-16

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF NEED NOT BE ENGAGED IN CONSTRUCTION WORK TO BRING A LABOR LAW 200 CAUSE OF ACTION ALLEGING INJURY CAUSED BY A DANGEROUS CONDTION)/DANGEROUS CONDITION (LABOR LAW 200, PLAINTIFF NEED NOT BE ENGAGED IN CONSTRUCTION WORK TO BRING A LABOR LAW 200 CAUSE OF ACTION ALLEGING INJURY CAUSED BY A DANGEROUS CONDTION)

INJURY NOT GRAVITY-RELATED, LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DISMISSED.

The Second Department determined plaintiff’s Labor Law 240(1) cause of action was properly dismissed. Plaintiff was struck by a pipe which was being carried down a ladder by another worker:

According to the deposition testimony of Haylon Dennis … as Dennis was descending from a ladder, he swung a pipe that he was holding and hit the injured plaintiff, whom Dennis did not realize was standing near him. …

… [Defendants] established their prima facie entitlement to judgment as a matter of law by demonstrating that the injury was not the direct consequence of the application of the force of gravity to an object or person … . In opposition, the plaintiffs failed to raise a triable issue of fact … . Palomeque v Capital Improvement Servs., LLC, 2016 NY Slip Op 08538, 2nd Dept 12-21-16

 

LABOR LAW-CONSTRUCTION LAW (INJURY NOT GRAVITY-RELATED, LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DISMISSED)/GRAVITY-RELATED (LABOR LAW-CONSTRUCTION LAW, INJURY NOT GRAVITY-RELATED, LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DISMISSED)

RIDING IN A PICKUP TRUCK IS NOT AN ELEVATION-RELATED RISK, FALLING OFF THE TAILGATE OF A MOVING TRUCK NOT COVERED BY LABOR LAW 240(1), RIDING ON THE TAILGATE WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT.

The Second Department, in a full-fledged opinion by Justice Dickerson, reversing Supreme Court, determined defendant general contractor’s motions for summary judgment dismissing plaintiff’s Labor Law 240(1) and 241(6) causes of action should have been granted. Plaintiff was sitting on an unsecured cast iron gate, which was resting on the tailgate of a pickup truck, when he and the gate fell from the moving truck. The Second Department determined the fall was not the result of a task involving an elevation-related risk, but rather was the result of riding in a pickup truck (not an elevation-related risk). In addition, the court found that plaintiff’s negligence (choosing to ride in the truck while sitting on the unsecured gate with his legs hanging off the tailgate) constituted the sole proximate cause of the accident:

… [T]he plaintiff in this case was not engaged in the task of unloading the truck at the time of the accident. The grate, on which the plaintiff had been sitting, only fell onto the plaintiff because the plaintiff had fallen off the truck and onto the ground as a result of the movement of the truck. “Liability under Labor Law § 240(1) depends on whether the injured worker’s task creates an elevation-related risk of the kind that safety devices listed in section 240(1) protect against'” … . Here, the task that the plaintiff was engaged in at the time of the accident was the task of riding in a pickup truck. As the Court of Appeals and this Court have already held, the task of riding in a pickup truck does not present an elevation-related risk … . * * *

Under the circumstances, the plaintiff’s decision to sit in this position during the drive was so unforeseeable as to break the causal nexus between the alleged failure … to comply with Labor Law § 240(1) and the plaintiff’s injuries, and the plaintiff’s decision to sit in this position was, as a matter of law, the sole proximate cause of his injuries … . Eddy v John Hummel Custom Bldrs., Inc., 2016 NY Slip Op 08502, 2nd Dept 12-21-16

 

LABOR LAW-CONSTRUCTION LAW (RIDING IN A PICKUP TRUCK IS NOT AN ELEVATION-RELATED RISK, FALLING OFF THE TAILGATE OF A MOVING TRUCK NOT COVERED BY LABOR LAW 240(1), RIDING ON THE TAILGATE WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT)/TRUCKS (LABOR LAW-CONSTRUCTION LAW, RIDING IN A PICKUP TRUCK IS NOT AN ELEVATION-RELATED RISK, FALLING OFF THE TAILGATE OF A MOVING TRUCK NOT COVERED BY LABOR LAW 240(1), RIDING ON THE TAILGATE WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT)/SOLE PROXIMATE CAUSE (LABOR LAW-CONSTRUCTION LAW, RIDING IN A PICKUP TRUCK IS NOT AN ELEVATION-RELATED RISK, FALLING OFF THE TAILGATE OF A MOVING TRUCK NOT COVERED BY LABOR LAW 240(1), RIDING ON THE TAILGATE WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT)/ELEVATION-RELATED RISK (LABOR LAW-CONSTRUCTION LAW, RIDING IN A PICKUP TRUCK IS NOT AN ELEVATION-RELATED RISK, FALLING OFF THE TAILGATE OF A MOVING TRUCK NOT COVERED BY LABOR LAW 240(1), RIDING ON THE TAILGATE WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT)

,

ALTHOUGH NOT AN EMPLOYEE UNDER THE WORKERS’ COMPENSATION LAW, PLAINTIFF WAS AN EMPLOYEE UNDER THE LABOR LAW AND WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION.

The First Department, over a dissent, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action, despite the finding by the Workers’ Compensation Board that plaintiff was not an employee entitled to Workers’ Compensation benefits from the general contractor. Plaintiff was found to be an independent contractor legitimately working at the site. The definitions of employer and employee in the Labor Law and Workers’ Compensation Law are different:

The sole issue at the workers’ compensation hearing was whether plaintiff was an employee of [the general contractor] as to be entitled to workers’ compensation benefits. The sole finding made by the ALJ was that plaintiff was an “independent contractor” not entitled to receive workers’ compensation. The ALJ made no determination as to the scope of that work. … Plaintiff testified that he was injured when a scaffold collapsed underneath him while he was helping to load a container with construction debris.

[The owner] fails to point to any evidence demonstrating that plaintiff was not “employed” on the premises on the date of the accident, and therefore, fails to raise a triable issue of fact. Having established that he was “employed” within the meaning of the Labor Law, plaintiff is entitled to partial summary judgment on the issue of liability on his section 240(1) claim. Vera v Low Income Mktg. Corp., 2016 NY Slip Op 08318, 1st Dept 12-13-16

 

LABOR LAW-CONSTRUCTION LAW (ALTHOUGH NOT AN EMPLOYEE UNDER THE WORKERS’ COMPENSATION LAW, PLAINTIFF WAS AN EMPLOYEE UNDER THE LABOR LAW AND WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION)/WORKERS’ COMPENSATION LAW (ALTHOUGH NOT AN EMPLOYEE UNDER THE WORKERS’ COMPENSATION LAW, PLAINTIFF WAS AN EMPLOYEE UNDER THE LABOR LAW AND WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION)

PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240(1) AND 240(6) CAUSES OF ACTION, HEAVY MOTORIZED PALLET JACK SLID ON WATER ON A DESCENDING RAMP.

The First Department, in a full-fledged opinion by Justice Saxe, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) and 241(6) causes of action. Plaintiff was guiding a heavy motorized pallet jack carrying concrete blocks down a ramp to a lower level of the building under construction. The ramp was wet and the pallet jack slid, running over plaintiff’s foot. The fact that the load was not being hoisted or secured at the time of the accident did not preclude recovery. The pallet itself was deemed a safety device that failed in an elevation-related accident:

Plaintiff’s testimony here established that his accident was proximately caused by the combination of the traction-reducing water condition and the slope, which caused the heavy, loaded pallet jack to slide downhill while the breaking [sic] mechanism was rendered useless. The jack, with its built-in braking mechanism, failed to provide him adequate protection against the gravity-related risk inherent in transporting the heavy load down the water-covered ramp. Therefore, defendants failed “to provide adequate protection against” the risk that was created in part by the ” significant elevation differential'” of the ramp … . Landi v SDS William St., LLC, 2016 NY Slip Op 08340, 1st Dept 12-13-16

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240(1) AND 240(6) CAUSES OF ACTION, HEAVY MOTORIZED PALLET JACK SLID ON WATER ON A DESCENDING RAMP)/PALLET JACK (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240(1) AND 240(6) CAUSES OF ACTION, HEAVY MOTORIZED PALLET JACK SLID ON WATER ON A DESCENDING RAMP)

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