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WORKER STRUCK BY DEBRIS WHICH FELL THROUGH A GAP IN PROTECTIVE NETTING ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240 (1) CAUSE OF ACTION.

The Second Department, reversing Supreme Court, granted summary judgment on plaintiff’s Labor Law 240 (1) cause of action. Workers were using jackhammers to chip away concrete on an elevated structure. Netting had been installed to catch falling pieces of concrete. Plaintiff was struck and severely injured by a four-foot piece of concrete which fell through a gap in the netting. The netting was deemed to be an inadequate safety device:

The plaintiffs’ submissions demonstrated that the injured plaintiff suffered harm that “flow[ed] directly from the application of the force of gravity” to the piece of concrete that struck him … , and that given the nature and purpose of the work that was being performed at the time of his injury, the falling debris presented a significant risk of injury such that the … defendants were obligated under Labor Law § 240(1) to use appropriate safety devices to safeguard the injured plaintiff from the harm it posed … . The plaintiffs’ submissions also demonstrated that the injured plaintiff’s injury was “the direct consequence of a failure to provide adequate protection against [the] risk” of harm posed by the falling debris … . Indeed, the plaintiffs established that the vertical netting that was installed around the controlled access zone to protect workers from the falling debris had pulled loose from the plywood barricade, creating an opening through which the concrete that struck the injured plaintiff traveled. Under these circumstances, the vertical netting constituted a safety device within the meaning of Labor Law § 240(1) … , and the plaintiffs demonstrated that it was not “so constructed, placed and operated as to give proper protection” (Labor Law § 240[1]). Sarata v Metropolitan Transp. Auth., 2015 NY Slip Op 09667, 2nd Dept 12-30-15

LABOR LAW (WORKER STRUCK BY FALLING DEBRIS ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240 (1) CAUSE OF ACTION)

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PLAINTIFF STRUCK WHEN TWO WORKERS LOST CONTROL OF A HEAVY BEAM THEY WERE LOWERING TO THE GROUND ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240 (1) CAUSE OF ACTION; EXPERT OPINION THAT NO SAFETY DEVICES WERE NECESSARY INSUFFICIENT TO DEFEAT SUMMARY JUDGMENT MOTION.

The First Department affirmed Supreme Court’s grant of summary judgment to the plaintiff in a Labor Law 240 (1) cause of action. Plaintiff was injured when a heavy beam being lowered by two other workers struck him in the chest and leg when the workers lost control of it. The court noted an expert opinion that no safety devices were needed was insufficient to establish the absence of a Labor Law 240 (1) violation:

The court properly found a “causal connection between the object’s inadequately regulated descent and plaintiff’s injury” … . By submitting an expert affidavit, plaintiff met his initial burden of showing that the beam “required securing for the purposes of the undertaking” … , and that statutorily enumerated safety devices could have prevented the accident … . It is undisputed that no enumerated safety devices were provided, and the testimony and expert opinion that such devices were neither necessary nor customary is insufficient to establish the absence of a Labor Law § 240(1) violation ”’ . The “height differential cannot be described as de minimis given the amount of force [the beam was] able to generate over [its] descent” … . Plaintiff was not the sole proximate cause of his injuries, which were caused at least in part by the lack of safety devices to check the beam’s descent as well as the manner in which the other two workers lowered the beam; comparative negligence is no defense to the Labor Law § 240(1) claim … . Bonaerge v Leighton House Condominium, 2015 NY Slip Op 09632, 1st Dept 12-29-15

LABOR LAW (PLAINTIFF STRUCK BY BEAM LOWERED BY TWO WORKERS)/EVIDENCE (EXPERT OPINION NO SAFEY EQUIPMENT NECESSARY DID NOT DEFEAT PLAINTIFF’S SUMMARY JUDGMENT MOTION IN A LABOR LAW 240 (1) ACTION)/EXPERT OPINION (OPINION THAT NO SAFETY EQUIPMENT WAS NECESSARY WAS INSUFFICIENT TO DEFEAT SUMMARY JUDGMENT IN LABOR LAW 240 (1) ACTION)

INJURY WHILE DOING ROUTINE MAINTENANCE DID NOT GIVE RISE TO LABOR LAW CAUSES OF ACTION.

The Second Department determined plaintiff was doing routine maintenance (checking light fixtures) when he was injured by a loose electric cable and his Labor Law causes of action were properly dismissed:

The defendants established their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging a violation of Labor Law § 240(1) by offering proof that the plaintiff was involved in routine maintenance rather than repair and, therefore, the plaintiff’s activity did not fall within the protection of that provision of the Labor Law … . …

The defendants also demonstrated their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging a violation of Labor Law § 241(6). The plaintiff was not involved in the activity of construction, excavation, or demolition, and the statute does not protect workers involved in maintenance or replacement of parts … . …

The defendants also demonstrated their prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging a violation of Labor Law § 200 and common-law negligence. The defendants demonstrated, prima facie, that they neither created nor had notice of the loose cable that allegedly caused the plaintiff’s electric shock … . Guevera v Simon Prop. Group, Inc., 2015 NY Slip Op 09254, 2nd Dept 12-16-15

MPNTHLY COMPILATION INDEX ENTRIES:

LABOR LAW (INJURY WHILE DOING ROUTINE MAINTENANCE NOT COVERED)/ROUTINE MAINTENANCE (INJURY NOT COVERED BY LABOR LAW)

Injury Caused by Lifting a Heavy Beam Not Covered by Labor Law 240(1), Despite the Fact the Beam Was Resting on an Elevated Scaffold

The Second Department determined that plaintiff’s injury was not related to the type of hazard covered by Labor Law 240(1). Plaintiff injured his back when he lifted a beam which was resting on an elevated scaffold. The court explained:

“[T]he extraordinary protections of Labor Law § 240(1) extend only to a narrow class of special hazards, and do not encompass any and all perils that may be connected in some tangential way with the effects of gravity'” … . Rather, the statute was designed to prevent accidents in which a protective device, ” proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person'” … .

Contrary to the plaintiff’s contention, the Supreme Court properly granted that branch of [the defendant’s] motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1). *  *  * … [T]he plaintiff failed to raise a triable issue of fact as to whether his injury arose from an elevation-related risk contemplated by the statute, rather than from the usual and ordinary dangers of the construction site … . The fact that the plaintiff was injured while lifting a heavy object does not give rise to liability pursuant to Labor Law § 240(1) … . Cardenas v BBM Constr. Corp., 2015 NY Slip Op 08142, 2nd Dept 11-12-15

 

Question of Fact Whether Plaintiff’s Actions Were Sole Proximate Cause of His Injury

The First Department, in a full-fledged opinion by Justice Andrias, over an extensive two-justice dissent, determined that was a question of fact whether plaintiff’s actions constituted the sole proximate cause of his injury in a Labor Law 240(1) action. Plaintiff stood on concrete blocks to work on a billboard, fell and was injured. Plaintiff had access to a cherry picker, ladders and safety harnesses but did not use them. Although plaintiff argued none of the safety devices were usable, the defendant raised a question of fact whether the safety devices could have been used:

Here, the record includes conflicting evidence regarding whether plaintiff was provided with adequate safety devices but failed to use them, which raises a triable issue of fact whether his conduct was the sole proximate cause of his injuries … . Unlike cases where a plaintiff was injured when he used his discretion to choose one of several safety devices provided and that device proved inadequate, in this case plaintiff was supplied with four safety devices and chose not to use any of them, electing instead to go straight to the concrete blocks, whose intended purpose was to act as a counterweight, not as a platform. * * *

… [A]n issue exists as to whether safe alternative means of painting the billboard were available to plaintiff and whether his failure to use those means was the sole proximate cause of his accident… . Quinones v Olmstead Props., Inc., 2015 NY Slip Op 07571, 1st Dept 10-15-15

 

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Criteria for Labor Law 200 and Common Law Negligence Causes of Action Explained

The Second Department affirmed the grant of summary judgment to defendants on the Labor Law 200 and common law negligence causes of action. Plaintiff was working on a roof when a co-worker’s water jug rolled down the roof, struck him and caused him to fall to the roof. The complaint alleged the injury arose from the manner the work was performed and from a dangerous condition.  The court noted that, because the complaint alleged both theories of liability, the summary judgment motion must address both. The court explained the relevant analytical criteria:

“Labor Law § 200 is a codification of the common-law duty of landowners and general contractors to provide workers with a reasonably safe place to work” … . “To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed at a work site, an owner or manager of real property must have authority to exercise supervision and control over the work at the site” … . However, “the right to generally supervise the work, stop the contractor’s work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Labor Law § 200 or for common-law negligence” … . “Where 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 [defendant] may be liable under Labor Law § 200 if it either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition'” … . Where an accident is alleged to involve both a dangerous condition on the premises and the “means and methods” of the work, a defendant 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 … . * * *

The defendants established, prima facie, both that they did not create or have actual or constructive notice of the allegedly dangerous condition which caused the injured plaintiff’s accident, and that they did not have the authority to supervise or control the means and methods of the injured plaintiff’s work … . In opposition, the plaintiffs failed to raise a triable issue of fact. Banscher v Actus Lend Lease, LLC, 2015 NY Slip Op 07461, 2nd Dept 10-14-15

 

Question of Fact Whether Plaintiff’s Conduct, Placing Ladder on Ice, Was Sole Proximate Cause of Injury

The Fourth Department determined there was a question of fact whether the plaintiff’s conduct constituted the sole proximate cause of his injury (re: the Labor Law 240 (1) cause of action).  Plaintiff placed his ladder on ice and was injured when the ladder slipped on the ice. The court explained the analytical criteria:

Liability under section 240 (1) “is contingent on a statutory violation and proximate cause” … . If both elements are established, “contributory negligence cannot defeat the plaintiff’s claim” … . There can be no liability under Labor Law § 240 (1), however, “when there is no violation and the worker’s actions . . . are the sole proximate cause’ of the accident” … . It is therefore “conceptually impossible for a statutory violation (which serves as a proximate cause for a plaintiff’s injury) to occupy the same ground as a plaintiff’s sole proximate cause for the injury. Thus, if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it. Conversely, if the plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation” … .

While we agree with plaintiffs that evidence that a ladder is “structurally sound and not defective is not relevant on the issue of whether it was properly placed” …, we conclude that there are triable issues of fact whether plaintiff’s actions were the sole proximate cause of his injuries … . * * *

In this case, we conclude that plaintiffs failed to meet their initial burden of establishing entitlement to partial summary judgment on the issue of liability on the Labor Law § 240 (1) cause of action inasmuch as they submitted evidence raising a triable issue of fact whether plaintiff’s conduct in “refusing to use available, safe and appropriate equipment” was the sole proximate cause of the accident … . Specifically, plaintiffs submitted deposition testimony from defendant’s customer, who purportedly owned the building on which plaintiff was working. The owner testified that, on the day of the accident, he advised plaintiff that the ladder was not placed in a safe position. The owner offered to retrieve safety equipment from his own truck that would help to remove ice from underneath the ladder and thereby stabilize the ladder. Plaintiff, however, rejected that offer. The owner also attempted to hold the ladder for plaintiff, but plaintiff again rejected the owner’s assistance. Fazekas v Time Warner Cable, Inc., 2015 NY Slip Op 07403, 4th Dept 10-9-15

 

Tree Removal Was First Step in Making Structural Repairs, Injury During Tree Removal Covered Under Labor Law 240 (1)

The Second Department determined removal of a tree which had fallen on a house, causing structural damage, was the first step in repairing the structure. Therefore, plaintiff, who fell while attempting the remove the tree, was engaged in an activity covered by Labor Law 240 (1) and 241 (6):

“… [T]he protections of Labor Law § 240(1) are to be afforded to tree removal when undertaken during the repair of a structure … . * * * Since the plaintiff was engaged in activities ancillary to the repair of the building from which he fell, the provisions of Labor Law § 241(6) are also applicable to the facts of this case.” Moreira v Osvaldo J. Ponzo, 2015 NY Slip Op 06792, 2nd Dept. 9-16-15

 

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Homeowner’s Exception Did Not Apply to a Horse Barn Used for Commercial Purposes Despite Presence of an Apartment in the Barn

The Second Department determined the “homeowner’s exception” to the applicability of the Labor Law did not apply to a barn used to house horses for commercial purposes, even though the barn included an apartment used by one of the horse farm’s shareholders. The court also noted that the “recalcitrant worker” affirmative defense should not have been dismissed “sua sponte” in the absence of a motion to dismiss it.  With respect to the homeowner’s exception, the court explained:

“… [T]he plaintiff met his prima facie burden of demonstrating that he was not performing work at a residence within the meaning of the homeowner’s exemption under Labor Law §§ 240(1) and 241(6) … . Among other things, the plaintiff demonstrated that the defendant described itself as “essentially . . . a business for keeping horses,” its owners were extensively involved in both keeping and racing horses, and approximately eight horses were boarded at the subject property at the time of the accident. The plaintiff’s submissions also established that when the defendant corporation originally purchased the subject property, the large barn was in a state of disrepair. The defendant renovated the large barn and added many improvements to the property, including multiple paddocks, an additional barn, and an “Equicisor,” a “72-foot circular automated horse exercising machine.” One of the defendant’s shareholders described the apartment in the rear of the barn as a part-time “office residence” where he might stay a ‘few days’ per week, although the amount of time he stayed varied depending on the season and the horse racing schedule. Under these circumstances, the plaintiff established, prima facie, that the defendant’s boarding stable, which was used primarily for commercial purposes, did not constitute a residence within the meaning of the homeowner’s exemption …”. Rossi v Flying Horse Farm, Inc., 2015 NY Slip Op 06798, 2nd Dept 9-16-15

 

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Testimony Which Could Have Added Relevant Evidence About the Nature of Plaintiff’s Work (Pre-Injury) and the Effects of the Injuries Should Not Have been Excluded as “Cumulative”

The First Department determined the plaintiff in a Labor Law 240 (1) action was entitled to a new trial because the trial judge should not have excluded the testimony of a co-worker and plaintiff’s wife as “cumulative:” The court explained:

“… [A] new trial on damages is necessitated, because we disagree with the court’s preclusion of testimony by plaintiff’s wife and coworker. Testimony is properly precluded as cumulative when it would neither contradict nor add to that of other witnesses … . Here, the testimony of plaintiff’s wife and his coworker would have added to the testimony of other witnesses. First, the coworker saw plaintiff fall, and his testimony as to the impact to plaintiff’s foot could have been highly probative of plaintiff’s claim that the continuing pain in his foot was caused by the accident and did not pre-exist it, as defendants argued. Further, the coworker could have testified as to the particular duties carried out by plaintiff as a heavy-construction carpenter, which would have supported plaintiff’s position that as a result of his injury he could no longer perform that kind of work. To be sure, plaintiff testified about his job duties, but the coworker’s status as a disinterested witness would have given his testimony added value to the jury … . Nor was the proffered testimony of plaintiff’s wife likely to be cumulative, notwithstanding her not having asserted a derivative claim. The wife had a unique perspective on her husband’s condition before and after the accident, and could have assisted the jury in further understanding the extent of his disability and of his pain and suffering.” Segota v Tishman Constr. Corp. of N.Y., 2015 NY Slip Op 06764, 1st Dept 9-15-15

 

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