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Fall from Flatbed Truck Was Covered by Labor Law 240 (1)—Fall Caused by Gravity Acting On Plywood Being Hoisted from the Truck

The Fourth Department determined plaintiff was entitled to partial summary judgment on his Labor Law 240 (1) claim.  Plaintiff fell from a flatbed truck while trying to steady plywood which became unsteady while being hoisted:

Although flatbed trucks “d[o] not present the kind of elevation-related risk that the statute contemplates” (Toefer v Long Is. R.R., 4 NY3d 399, 408), the accident in this case was caused by a falling object, which distinguishes this case from Toefer … . The accident that caused plaintiff’s injuries “flow[ed] directly from the application of the force of gravity to the object” … . In other words, the injuries were the result of “the direct consequence of a failure to provide statutorily required protection against a risk plainly arising from a workplace elevation differential” … . Inasmuch as plaintiff established that the plywood fell while being hoisted because of the absence or inadequacy of a safety device of the kind enumerated in the statute, we conclude that he is entitled to summary judgment on the section 240 (1) claim … . Hyatt v Young, 2014 NY Slip Op 03056, 4th Dept 5-2-14

 

241 (6) Cause of Action Improperly Dismissed—Plaintiff Tripped on Piece of Metal Protruding from Stair

The Third Department determined Supreme Court should not have dismissed plaintiff’s Labor Law 241 (6) claim against the general contractor (Glenman).  Plaintiff tripped and fell down a stairwell when his shoe was punctured by a piece of metal protruding from a stair:

Supreme Court improvidently dismissed plaintiff’s Labor Law § 241 (6) claim against Glenman. Notably, “Labor Law § 241 (6), by its very terms, imposes a nondelegable duty of reasonable care upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed” … . “To establish a claim under Labor Law § 241 (6), [a] plaintiff must allege that [the] defendant[] violated a rule or regulation promulgated by the Commissioner of Labor that sets forth a specific standard of conduct” … . “[O]nce it has been alleged that a concrete specification of [such a rule or regulation] has been violated, it is for the jury to determine whether the negligence of some party to, or participant in, the construction project caused plaintiff’s injury” … .

Here, plaintiff relies upon 12 NYCRR 23-1.7 (e) (1), which provides:”(e) Tripping and other hazards.(1) Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered.” This regulation appropriately “mandat[es] compliance with concrete specifications” as required to state a claim under Labor Law § 241 (6) … .  Marshall v Glenman Indus & Commercial Contr Corp, 20-14 NY Slip Op 02987, 3rd Dept 5-1-14

 

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Labor Law 200/Common-Law Negligence Cause of Action Properly Dismissed—City Demonstrated It Did Not Have the Authority to Supervise and Control the Work—Labor Law 241(6) Cause of Action, However, Should Not Have Been Dismissed—Nondelegable Duty to Provide a Safe Workplace

Plaintiff’s hand was crushed by an excavator as he was in a trench directing the operation of the excavator.  The Second Department determined the city’s motion for summary judgment on the Labor Law 200/common-law negligence, and Labor Law 240(1) causes of action was properly granted.  But the Labor Law 241(6) cause of action, based upon an Industrial Code provision (12 NYCRR 23-9.5(c)) prohibiting close proximity to an excavator, should not have been dismissed. Labor Law 241(6) imposes a nondelegable duty to provide a safe workplace and requires compliance with the Industrial Code. The Labor Law 200/common-law negligence causes of action were defeated by the city’s demonstration that it did not have the authority to control, direct or supervise the method or manner in which the relevant work was performed.  The Labor Law 240(1) cause of action was properly dismissed because the injury was not the result of an elevation-related incident. The court explained the operative principles re: Labor Law 200 and Labor Law 241(6) causes of action:

Labor Law § 200 is a codification of the common-law duty to exercise due care in providing a safe place to work … . Cases involving Labor Law § 200 fall into two broad categories, namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed … .

The instant case did not involve a dangerous or defective premises condition. “To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed, a defendant must have the authority to exercise supervision and control over the work'” … . However, ” [t]he 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'” … .

Here, the City defendants established their prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 200 and common-law negligence causes of action, asserted against them, by demonstrating that they did not have the authority to control, direct, or supervise the method or manner in which the work was performed. * * *

Labor Law § 241(6) imposes a nondelegable duty on owners, contractors, and their agents to provide a safe workplace to workers, and applies to “all areas in which construction, excavation or demolition work is being performed.” Pursuant to that duty, owners, contractors, and their agents must comply with those provisions of the Industrial Code that set forth specific requirements or standards … . The City defendants contend that, since the injured plaintiff was a member of the “excavating crew,” as that term is employed in 12 NYCRR 23-9.5(c), he was authorized to be within range of the moving excavator bucket … , and they submitted an expert’s affidavit in support of that contention. However, a person authorized pursuant to 12 NYCRR 23-9.5 to operate or be within the range of an excavator’s bucket may, contrary to the City defendants’ contention, still claim the protections provided by 12 NYCRR 23-4.2(k) … . Torres v City of New York, 2015 NY Slip Op 03519, 2nd Dept 4-29-15

 

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Lessee Who Has Authority to Control the Work Is Liable Under the Labor Law

The Second Department reversed Supreme Court finding that plaintiff was entitled to summary judgment on his Labor Law 240 (1) claim. Plaintiff alleged that a ladder twisted out from under him when he was carrying materials to the roof and defendant (Sigma) did not raise a question of fact whether plaintiff’s conduct was the sole proximate cause of his injuries. The court explained the circumstances under which a tenant, the defendant (Sigma) here, is liable under the Labor Law:

Labor Law § 240(1) applies to owners, contractors, and their agents (see Labor Law § 240[1]…). A party is deemed to be an agent of an owner or contractor under the Labor Law when it has the ” ability to control the activity which brought about the injury'” … . A lessee of real property that hires a contractor and has the right to control the work at the property is considered to be an owner within the meaning of the law … . Moreover, a lessee of property may be liable as an “owner” when it “has the right or authority to control the work site, even if the lessee did not hire the general contractor” … . The key question is whether the defendant had the right to insist that proper safety practices were followed … . Here, the evidence established that Sigma was the lessee of the premises where the accident occurred and that the president of Sigma hired the injured plaintiff to perform the work and controlled his work. Seferovic v Atlantic Real Estate Holdings, LLC, 2015 NY Slip Op 03343, 2nd Dept 4-22-15

 

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Hearsay, Although Admissible, Will Not Alone Raise a Triable Issue of Fact/A “Contractor” (Within the Meaning of Labor Law 240 (1)) Need Only Have the Authority to Control the Work—It Need Not Actually Exercise that Authority

The Second Department determined summary judgment was properly granted to the plaintiff for his Labor Law 240 (1) cause of action. A one-ton concrete plank fell from a jack onto plaintiff’s hand.  The court noted that the hearsay submitted by the defendant, claiming that plaintiff was injured when he continued to work after being ordered to stop, was not sufficient to defeat plaintiff’s summary judgment motion.  Hearsay is admissible in this context but hearsay alone will not suffice to raise a triable issue of fact. The court also found that the defendant was a contractor within the meaning of Labor Law 240 (1).  To meet the definition, the contractor must have the authority to enforce safety measures and hire responsible subcontractors, but need not have exercised that authority:

“Although hearsay evidence may be considered in opposition to a motion for summary judgment, such evidence alone is not sufficient to defeat the motion” … .

… “A party which has the authority to enforce safety standards and choose responsible subcontractors is considered a contractor under Labor Law § 240(1)” … . [Defendant’s] status as a contractor under Labor Law § 240(1) is dependent upon whether it had the authority to exercise control over the work, not whether it actually exercised that right … . Guanopatin v Flushing Acquisition Holdings, LLC, 2015 NY Slip Op 02933, 2nd Dept 4-8-15

 

Slip and Fall On Ice While Wearing Stilts Not an Elevation-Related Event within Meaning of Labor Law 240 (1)

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a dissent, determined that a slip and fall caused by ice on the floor was not an elevation-related event within the meaning of Labor 240(1), despite the fact the worker was using stilts when he slipped and fell:

… [T]he protections of Labor Law § 240 (1) “do not encompass any and all perils that may be connected in some tangential way with the effects of gravity” … . “Rather, liability [remains] 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” … . Moreover, section 240 (1) is not applicable unless the plaintiff’s injuries result from the elevation-related risk and the inadequacy of the safety device … . * * *

Here, plaintiff’s accident was plainly caused by a separate hazard — ice — unrelated to any elevation risk. Plaintiff testified that stilts were the appropriate device for the type of work that he was undertaking, given the height of this particular ceiling. Plaintiff’s testimony further established that it was the ice — not a deficiency or inadequacy of the stilts — that caused his fall. Nicometi v Vineyards of Fredonia, LLC, 2015 NY Slip Op 02801 CtApp 4-2-15

 

Work on Billboard Was “Alteration” within Meaning of Labor Law 240 (1) and “Construction” within Meaning of Labor Law 241 (6)

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined that plaintiff, who fell putting up advertisement on a billboard, was engaged in covered activities pursuant to Labor Law 240 (1) (alteration), 240 (2) (no guardrail) and 241 (6) (construction):

[W]e conclude that plaintiff was engaged in work that constitutes an alteration within the meaning of the statute. In reaching this determination we apply the definition the Court adopted in Joblon, that the term “altering” in section 240 (1) “requires making a significant physical change to the configuration or composition of the building or structure” (Joblon, 91 NY2d at 465). This definition excludes “routine maintenance” and “decorative modifications” (id.). Whether a physical change is significant depends on its effect on the physical structure. Thus, the Court held that the plaintiff in Joblon who was injured when he fell off a ladder while in the process of chiseling a hole through a concrete block wall so that he could run electrical wires from one room to another to install a wall clock was engaged in “altering” under section 240 (1). As the Court held, extending the wiring and chiseling a hole through the concrete constituted a significant change and entailed “more than a simple, routine activity” (id. at 465-66).

Here, plaintiff’s job was to install a new advertisement. In order to do so he and the other members of the construction crew had to attach extensions that changed the dimensions of the billboard’s frame and transformed the shape of the billboard to accommodate the advertisement’s artwork. Plaintiff was injured when in furtherance of this task he fell while assisting the other crew members with the removal of the old vinyl advertisement from the billboard’s side panels. The vinyl removal was a prerequisite to the attachment of the extensions and therefore an integral part of the installation of the extensions. We have little difficulty concluding that the plaintiff’s work entails a significant change to the billboard structure because once the vinyl is removed, the billboard is enlarged by the attachment of the extensions, work accomplished by the use of the angle iron on the back of each extension, and application of nuts, bolts and nails.  Saint v Syracuse Supply Co., 2015 NY Slip Op 02802, CtApp 4-2-15

 

Maneuvering a Heavy Door from a Scissors Lift to the Door Opening on the Second Floor Was Not an Elevation-Related Risk within the Meaning of Labor Law 240(1)/Nature of Labor Law 200 Action Explained

The Fourth Department determined maneuvering a heavy door across a two-foot gap between the scissors lift on which plaintiff was standing and the door opening on the second floor was not an elevation-related risk within the meaning of Labor Law 240(1).   Plaintiff’s Labor Law 200 and common law negligence causes of action, however, survived defendant’s summary judgment motion:

“Labor Law § 200 is a codification of the common-law duty imposed upon an owner or general contractor to provide employees with a safe place to work” … . The duty does not, however, “extend to hazards which are part of or inherent in the very work which the contractor is to perform’ ” … . Here, plaintiff’s accident resulted from the manner in which the work was performed, and it is undisputed that defendant had the authority to supervise and control the methods and manner of plaintiff’s work, and that it in fact exercised such supervisory control … . Contrary to defendant’s contention, we conclude that defendant failed to establish as a matter of law that the risk of injury owing to moving a heavy door across a two-foot gap while at an elevated height with the assistance of a single worker was “inherent in plaintiff’s work” … . We agree with defendant, however, that the court erred in denying that part of its motion and granting that part of plaintiffs’ cross motion with respect to the Labor Law § 240 (1) claim, and we therefore modify the order accordingly. “The 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 those types of accidents in which the scaffold, hoist, stay, ladder or other 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” … . Here, plaintiff injured his back while maneuvering a heavy door across a lateral gap; the door did not fall or descend even a de minimis distance owing to the application of the force of gravity upon it … . Although “the injured plaintiff’s back injury was tangentially related to the effects of gravity upon” the door he was lifting, “it was not caused by the limited type of elevation-related hazards encompassed by Labor Law § 240 (1)” … . We thus conclude that the hazard at issue here, i.e., lifting or carrying a heavy object across a lateral gap, even while positioned at a height, is a “routine workplace risk[]” of a construction site and not a “pronounced risk[] arising from construction work site elevation differentials” … . Carr v McHugh Painting Co., Inc., 2015 NY Slip Op 02584, 4th Dept 3-27-15

 

Fall of a Heavy Rail from a Two- To Three-Foot Stack Was an Elevation-Related Event

The First Department determined the fall of a heavy rail from a stack two to three feet high was an elevation-related event within the meaning of the Labor Law:

We agree with the motion court’s finding that the pile of rails that were stacked two and one-half to three feet high was not de minimis, given the approximately 1500 pound weight of the rail and “the amount of force it was capable of generating, even over the course of a relatively short descent” … . The harm plaintiff suffered was the direct consequence of the application of the force of gravity to the rail that struck plaintiff … .

“What is essential to a conclusion that an object requires securing is that it present a foreseeable elevation risk in light of the work being undertaken” … . It was foreseeable that during hoisting, a crane could strike the stacked pile of rails causing it to fall …, and therefore, the rail that struck plaintiff was an object that required securing for the purposes of the undertaking … . We are not persuaded by the City’s contention that plaintiff failed to identify a necessary and expected safety device, as plaintiff demonstrated that the City could have used secure braces, stays, or even additional lines to stabilize the stacked rails … . Jordan v City of New York, 2015 NY Slip Op 02565, 1st Dept 3-26-15

 

Subcontractor Which Did Not Supervise Injured Plaintiff or Control Site Safety May Still Be Liable Under Common-Law Negligence for Creating the Dangerous Condition

The Second Department determined questions of fact existed whether a subcontractor (Geiger), which did not supervise the injured plaintiff or control safety measures, could be held liable for common-law negligence for creating the dangerous condition:

Supreme Court properly denied that branch of Geiger’s motion which was for summary judgment dismissing the cause of action to recover damages for common-law negligence insofar as asserted against it. A subcontractor “may be held liable for negligence where the work it performed created the condition that caused the plaintiff’s injury even if it did not possess any authority to supervise and control the plaintiff’s work or work area” … . An award of summary judgment in favor of a subcontractor on a negligence claim is improper where the “evidence raise[s] a triable issue of fact as to whether [the subcontractor’s] employee created an unreasonable risk of harm that was the proximate cause of the injured plaintiff’s injuries” … . Here, there are triable issues of fact as to whether employees of Geiger created the dangerous condition that allegedly caused the injured plaintiff’s accident. Lombardo v Tag Ct. Sq.,LLC,  2015 NY Slip Op 02458, 2nd Dept 3-25-15

 

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